COMMUNICATIONS ABOUT LEGAL SERVICES Flashcards
BASIC RULE FOR ALL COMMUNICATIONS— MUST BE TRUE AND NOT MISLEADING
FRE:
Any communication about a lawyer or the lawyer’s services must be true and not misleading, and must identify the name and contact information of at least one lawyer or law firm responsible for its content.
A statement is misleading if it:
* Would lead a reasonable person to reach an unfounded conclusion. * Reports the lawyer’s achievements on behalf of clients and would lead a reasonable person to form an unjustified expectation of receiving the same results in a similar matter.
* Contains an unsubstantiated comparison or claim of the lawyer’s services or fees, presented with such specificity as to lead a reasonable person to conclude that the comparison or claim can be substantiated.
CA:
The California rule includes additional specific examples of misleading communications:
* Stating or implying that the lawyer is able to provide legal services in a language other than English, unless:
(1) the lawyer can actually provide legal services in that language, or
(2) the communication also states in the language of the communication the employment title of the person in the firm who speaks that language.
* Stating or implying “no fee without recovery,” unless the communication also expressly discloses whether or not the client will be liable for costs.
ADDITIONAL CALIFORNIA RESTRICTIONS ON ADVERTISING
The California Business and Professions Code also specifically prohibits advertisements that contain any of the following:
* A guarantee or warranty of the outcome of a case.
* Words or symbols that suggest quick cash or a quick settlement.
* An impersonation of a lawyer or client without disclosing that it is an impersonation.
* A dramatization of an accident or other event without disclosing that it is a dramatization.
* A contingent fee offer that does not warn that a client who loses a case must still pay litigation costs (if that is the arrangement).
Although there is no specific ABA counterpart, these advertisements would likely also be considered misleading under the ABA Rules.
FIRM NAMES, DESIGNATIONS, AND LETTERHEADS
The following are examples of law firm names, designations, letterheads, etc., that are misleading:
* A firm name, trade name, or other designation implies a connection with a government agency or with a public or charitable legal services organization (for example, Sacramento Legal Aid Clinic).
* It states or implies that the lawyers practice in a partnership or other organization when that is not the case.
* It includes the name of a lawyer or a deceased lawyer not associated with the firm or a predecessor firm.
COMMUNICATION OF SPECIALTIES
A lawyer may communicate the fact that they do or do not practice in particular fields of law, and may also communicate that their practice specializes in, is limited to, or is concentrated in a particular field of law.
However, a lawyer must not state or imply that they are certified as a specialist in a particular field of law, unless:
(1) the lawyer has in fact been certified as a specialist by an approved organization; and
(2) the name of the certifying organization is clearly identified in the communication.
SOLICITATION: GENERAL PROHIBITION ON PERSONAL CONTACTS
FRE:
A solicitation is a targeted communication initiated by or on behalf of the lawyer that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter, and that directly or indirectly offers to provide legal services in that matter.
Subject to the exceptions below, a lawyer must not, by live person-to-person contact, solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain (offers to provide legal services for free are generally permissible).
“Live person-to-person contact” means in-person, live telephone, or other real-time visual or auditory person-to- person communications (Skype or FaceTime).
CA:
The California rule is the same with respect to in-person and live telephone contact, but more broadly prohibits “real-time electronic contact.”
Thus, text messages and chat room messages might be prohibited even if there is no real-time video or audio component (but there is no definitive guidance on this point).
SOLICITATION: WHEN PERSONAL CONTACTS ARE ALLOWED
FRE:
Personal/live contacts are permitted when the target is another lawyer, or someone with whom the lawyer has a close personal or prior professional relationship, or a person who routinely uses for business purposes the type of services offered by the lawyer.
CA:
The California rule is similar, but does not contain the exception for routine users of legal services.
OTHER METHODS OF SOLICITATION GENERALLY PERMITTED
FRE:
A lawyer is generally not prohibited from sending written or recorded communications (for example, via e-mail, postal mail, or recorded telephone message) to persons known to face a specific legal problem.
CA:
The California rule requires these targeted communications to include the word “Advertisement,”
or words of similar import,
on the outside envelope (if any) and at the beginning and end of any recorded or electronic communication.
However, the labeling requirement is not necessary if:
(1) the target is another lawyer, or a person with whom the lawyer has a close personal or prior professional relationship; or
(2) it is apparent from the context that the communication is an advertisement. electronic communication.
WHEN ALL SOLICITATION IS PROHIBITED
BOTH:
A lawyer is prohibited from soliciting professional employment, regardless of what method is used or who the target is, if:
(1) the target has made known to the lawyer that they do not want to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress, or harassment.
Recall that a lawyer must not use an agent to do what the lawyer cannot do; thus, a lawyer will be subject to discipline for using an agent to solicit a potential client in violation of the RPC.
PREPAID OR GROUP LEGAL SERVICE PLANS
A lawyer may participate in a prepaid or group legal service plan that uses personal contacts to enroll members, as long as the plan only contacts persons who are not known to need legal services in a particular matter covered by the plan
(otherwise, this would be prohibited solicitation).
Furthermore, the lawyer must not participate in a plan that uses personal contacts if the lawyer owns or directs the organization that operates the plan.
PAYMENTS FOR RECOMMENDATIONS
BOTH:
As a general rule, a lawyer must not give anything of value for a person’s recommendation of the lawyer’s services.
However, a lawyer may:
* Pay the reasonable costs of permitted advertisements.
* Pay the usual charges of a legal service plan, a not-for-profit lawyer referral service, or a qualified lawyer referral service.
* Pay for the purchase of a law practice.
* Refer a client to another lawyer or a nonlawyer professional as part of a reciprocal referral arrangement with that person. Any such arrangement must not be exclusive, and the client must be informed of the existence and nature of the agreement.
* Give a gift or gratuity as a token of appreciation to a person who recommended the lawyer or the lawyer’s firm, provided the gift or gratuity was not offered or given in consideration of an understanding that such a gift or gratuity would be forthcoming or that referrals would be made or encouraged in the future.
