Communications About Legal Services Flashcards
False or misleading statements
A lawyer must not make a false or misleading statement about themselves.
Even if a truthful statement is misleading if it:
1. would lead a reasonable person to reach an unfounded conclusion
2. reports the lawyer’s achievemenets on behalf of clients and would lead a reasonable person to form an unjustified expectation of receiving the same results
3. contains an unsubstantiated comparison or claim of the lawyer’s services or fees
Depending on the circumstances, a disclaimer or other qualifying language can prevent an advertisement from being misleading to the public
California statutory restrictions on advertising
The California Business and Professions Code specifically prohibits advertisements that contain:
1. guarantee or warranty of the outcome
2. words or symbols that suggest quick cash or quick settlement
3. an impersonation of a lawyer or client without disclosing that it is an impersonation
4. a dramatization of an accident or other event without disclosing that it is a dramatization
5. a contingent fee offer that does not warn that a client who loses must still pay litigation costs
Firm names, designations, and letterheads
Firm name cannot be false or misleading, meaning it cannot:
1. imply a connection with the governmnet agency or with a public charitable legal services org
2. state or imply that lawyer practices in partnership if that is not the case
3. include names of lawyers not associated with the firm
When can a lawyer advertise that she is a specialist in a certain type of law?
A lawyer may generally commmunicate that they practice in or specialize in a particular field of law
When can a lawyer advertise that she is a certified specialist in a certain type of law?
A lawyer must not state or imply that she is a certified specialist, unless:
1. the lawyer has in fact been certified as a specialist by an approved organization
2. the name of the certifying organization is clearly identified in the communication
What is required of every communication about a lawyer’s services
Name and contact information of at least on lawyer or law firm responsible for the content
Soliciation
Subject to a few exceptions, a lawyer must not, by live-person-to-person contact, solicit professional employment when a significant motive for doing so is **pecuniary gain **
Applies to lawyer’s agents as well.
What is “live-person-to-person” contact
California exception applies
Any in-person, live telephone, or other real-time visual or auditory person-to-person communcation
In CA: rule prohibits “real-time electronic contact.”
With whom is a lawyer NOT prohibited from initiating personal contact?
- another lawyer
- a person with whom the lawyer has a familial, close personal, or prior professional relationship
- a person who routinely uses for business purposes the type of legal services offered by the lawyer
Rules re: written, recorded, or electronic communications
California exception applies
Generally, a lawyer is not prohibited from sending truthful, nondeceptive communications to persons known to face specific legal problems
In CA: targeted communications must include the word “advertisement,” or words of similar import
When is soliciation totally prohibited?
Solicitation is prohibited, regardless of the methods used, if: (i) the target has made known to the lawyer that they do not want to be solicited; or (ii) the solicitation involves coercion, durress, or harassment.
Paying for recommendations
As a general rule, a lawyer must not give anything of value for another person’s recommendation of the lawyer’s services
a lawyer can, however, give a nominal gift or gratuity as a token of appreciation to a person who recommended the lawyer, provided the offered gratuity was not offered or given in consideration of an understanfing that such a gift would be forthcoming.
Reciprocal referral arrangements
A lawyer is permitted to refer a client to another lawyer or a nonlawyer professional as part of a reciprocal referral arrangement with that person so long as the arrangement is not exclusive and the client is informed of the existence of the agreement.
Prepaid or group legal service plans
A lawyer is permitted to participate in a prepaid or group legal service plan that uses personal contacts to enroll memberships for the plan, as long as the plan only contacts persons who are not known to need legal services in a particular matter.
The lawyer must not participate in a plan that uses personal contacts if the lawyer own or directs the organization that operates the plan.
