Communications about Legal Services

Question 1

What are the rules about associating with other lawyers and firms?

Answer 1

You cannot say you are partners with someone what you are not partners with.

Can say that two firms are associated or affiliated but then the firms are treated as a single unit for conflict of interest purposes

Question 2

What are the 4 rules for communications about legal services

Answer 2

1) Omitted facts: Can’t omit facts in a way that makes the communication as a whole misleading
2) Unfounded Conclusions: The comm is misleading if a reasonable person would formulate a conclusion for which there is no reasonable factual foundation
3) Unjustified expectations based on past results: comm is misleading if a reasonable person could think that lawyer could do as well in a similar case without regard to the particular facts and law
4) Unsubstantiated Opinions: comm misleading if reasonable person would think comparison can be factually substantiated and it can’t

Question 3

What detail is required in all communications about lawyer or legal services?

Answer 3

1) Name of at least one lawyer or law firm

2) Contact information (phone #, physical office location, email address, or web address)

Question 4

I want to name a client in my advertisement, can I?

Answer 4

Only if you get their consent

Question 5

I am a solo practitioner, what should I worry about when naming my firm.

Answer 5

• Don’t imply that other partners or associates are practicing with you if they are not
• If you choose a trade name, make sure it is not misleadingly looking like a government agency or charity

Question 6

I have five partners in my firm, one dies, one retires and one holds public office, can we all be named partners?

Answer 6

• Deceased and retired partners can still be included as long as there is succession in the firm
• If a named partner holds public office, then they must continue to be REGULARLY AND ACTIVELY practicing at the firm to remain a named partners

Question 7

I want to claim to be an expert or specialist. Can I?

Answer 7

Yes, if that statement is based on their experience, specialized training, or education and is not false or misleading

Question 8

I want to claim to be a certified specialist. Can I?

Answer 8

• If claim to be a certified specialist, then must be certified by an organization accredited by the ABA or state authority
  and
• must clearly identify the organization
  (unless admiralty or patent)

Question 9

I want Bob to recommend or endorse me as a lawyer, can I incentivize him?

Answer 9

Can’t give or promise to give anything of value in exchange for a recommendation or referral

Can give/receive nominal gifts as token of appreciation, but not if the lawyer already promised it in exchange for the recommendation or there is an expectation of more gifts (e.g. swag, meal)

Question 10

What can a lawyer pay for to advertise without offending the rule against paying for referrals and endorsements?

Answer 10

1) Reasonable costs of advertising
2) Usual charges of a legal service plan
3) Cost of participating in a non-profit referral service
4) Qualified lawyer Referral service (qualified= approved by the appropriate regulator)
5) Lead generation service fees

Question 11

What should a lawyer look out for on lead generation services?

Answer 11

• Make sure the service does not recommend one particular lawyer or purport to analyze the potential clients case when making a referral or purport to be recommending the lawyer without being paid to do so

Question 12

What should a lawyer look out for when working with a legal service plan?

Answer 12

• Must “reasonably assure” the legal service plan is itself acting ethically with regard to soliciting/advertising/misrepresenting
• Must make sure that if a lawyer owns the plan, they do not provide legal services through the plan

Question 13

What are the rules for reciprocal referral agreements?

Answer 13

1) Must be with another lawyer or a non lawyer professional (narrowly construed)
2) Cannot be exclusive
3) Must be of limited duration and reviewed periodically
4) Referred client must be told of the agreement (if the referral or receipt of referred by the lawyer creates a conflict of interest, need consent confirmed in writing)

Question 14

What is a solicitation?

Answer 14

Communication INITIATED BY (or on behalf of) THE LAWYER that is directed to a SPECIFIC PERSON that is KNOWN TO NEED LEGAL SERVICES in a PARTICULAR MATTER

Question 15

What is the main restriction on solicitations?

Answer 15

Cannot make a live solicitation when the motive is profit seeking. Notice how solicitations are generally ok if they are not live.

Question 16

When can a lawyer use a live solicitation?

Answer 16

When soliciting not for financial gain or when soliciting a:

• Relative
• Close friend
• Person with prior business or professional relationship
• Other lawyer
• Routine business users of the kind of services offered

Question 17

When are all solicitations prohibited?

Answer 17

1) When the person has made known to the layer that they do not want the solicitation
2) Solicitation amounts to coercion, duress, or harassment (especially for vulnerable persons)
3) Specific legal prohibitions (45 day plane crash rule)

^These prohibit live solicitations and not live solicitations

Question 18

I just started a legal service plan and I need clients, how can I get them?

Answer 18

The plan itself can:

• Can reach out to organizations about offering the plan
• Can reach out to potential members of the plan with live person to person contact if not known to need legal services (but lawyers providing the services of the plan can’t reach out)

Question 19

I’m a state legislature that wants to prevent misleading speech related to legal services. What level of constitutional scrutiny applies?

Answer 19

Rational Basis

• Restriction must not be unduly burdensome
• Must be reasonably related to the state’s interest in preventing deception

Question 20

I’m a state legislature that wants to regulate truthful and non deceptive commercial speech related to legal services. What level of constitutional scrutiny applies?

Answer 20

Intermediate Scrutiny

• Govt must have a substantial interest in support of its regulation
• Govt must demonstrate that the restriction on commercial speech directly and materially advances the interest
• Regulation is narrowly tailored

Question 21

Is handing a brochure about how to obtain legal advice to someone that you know needs legal advice a solicitation?

Answer 21

Yes if you (or agent) hand the brochure to them in person in a targeted way because you know they need legal advice

Question 22

Do reciprocal referral agreements have to be in writing? What are the requirements?

Answer 22

No, but the agreement must be nonexclusive and of definite duration. The referred client must also be informed of the arrangement

Question 23

An attorney offers bundled legal services and ancillary services. Can the attorney solicit face to face for the ancillary services?

Answer 23

No, if the two services are not distinct from each other, then the lawyer must follow the RPC rules with regard to the ancillary services as well as the legal services. This means that the attorney must obey the solicitation rules when looking for new ancillary service clients.

Question 24

Is a listing of lawyers by practice area considered a referral?

Answer 24

No, so you could pay to be listed

Question 25

Can the owner or director of a legal services plan also provide services under the plan?

Answer 25

No

Question 26

I’m a lawyer who provides services under a legal services plan, what are my responsibilities relative to the solicitations/advertising of the legal services plan?

Answer 26

1) Must reasonably assure myself that the plan sponsors are in compliance with advertising and solicitation rules
2) Must not own or direct/manage the plan
3) Must not make live person to person contact with potential subscribers to the plan