Duties of Candor to the Public and Dignity of the Profession: Advertising and Solicitation Flashcards
On the exam, separately identify duties that can run to multiple entities. Then,
give each a separate heading, even if the rule and analysis dovetail.
A state can regulate your advertising and solicitation subject to your Constitutional right to Free Speech. This is protected under the ___________ __________________ __________ doctrine of the First Amendment.
limited commercial speech
A restriction to advertising and solicitation is constitutional if:
- It serves a substantial government interest (preserving the dignity of the legal profession, or citizen privacy)
- It directly and materially advances that interest; and
- It is narrowly tailored to serve that interest.
Advertising must not be…
false or misleading. Don’t mislead or omit material information.
Saul advertises that he prepares “simple wills” for $500. However, 95% of his wills involve “complications” that require additional fees. Is his ad misleading?
Yes. It leads a reasonable person to reach an unfounded conclusion.
In ads/solicitations, don’t make unsubstantiated comparisons with…
other lawyers’ services or fees or report past results without details or disclaimers to prevent unjustified expectations.
Lawyer Leon posts a YouTube video featuring Bob, a client who said, “After I was exposed to asbestos, Leon won me $5 million! He can do that for you too!” Is the ad proper?
Not if it would lead a reasonable person to form an unjustified expectation of etting the same results. Including specific circumstances of each case can avoid misleading.
You may identify your specialties or certifications as long as your statements are…
not false or misleading.
You may participate in a group legal service plan that…
advertises its availability to the public.
This refers to your initiating individualized contact with a layperson to seek professional employment.
Solicitation
Virginia (permits/does not permit) face-to-face, telephonic, and real-time electronic solitication.
permits
What are the limitations to attorney solicitation in Virginia?
- Attorneys cannot solicit anyone who has let them know they do not want to be solicited or harass them with repeated communications if they do not respond, and
- The solicitation cannot harass, use undue influence or duress, or make unwarranted promises of benefits.
Attorney Ann lurks in a chat room designed to offer emotional support for victims of a recent hurricane. She then introduces herself as a lawyer and offers a discount for clients who retain her within 5 days. Prohibited solicitation?
Yes. These people are not in the mental state to exercise reasonable judgment, and the pressure to act quickly may be coercive.
When determining whether the particular solitication is prohibited, consider…
the totality of the circumstances, including your previous relationship, their physical and mental state, and your conduct.
A solicitation seeking professional employment on a particular matter must be…
conspicuously labelled as “ADVERTISING MATERIAL” at the beginning of any written, recorded, or electronic communication. General announcements and responses to specific requests need not be labeled.
