LAWYER ADVERTISING & SOLICITATION

Question 1

rules // LAWYER ADVERTISING & SOLICITATION

Answer 1

o Revised R.7.1 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
o Revised R.7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES: SPECIFIC RULES
o Revised R.7.3 SOLICITATION OF CLIENTS

Question 2

Application // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS

Answer 2

Applies to all communications from lawyer to specific individual or public-at-large (CMT 1)

Question 3

Misleading communication // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS

Answer 3

False or misleading = if it contains a material misrepresentation of fact or law OR omits a fact necessary to make statement considered a whole not materially misleading
BUT doesn’t have to be blatantly false to violate

Question 4

misleading truthful statements // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS

Answer 4

Truthful statement = misleading if

1. it omits fact necessary to make lawyer’s communication considered as a whole not misleading
2. Substantial likelihood exists that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation
3. Represented in a way that creates a substantial likelihood that a reasonable person would believe the lawyer’s communication requires that person to take further action when actually no action is required

Question 5

Fixing misleading ad // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS

Answer 5

“inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public”

= can fix misleading ad by adding appropriate disclaimer or qualifying language

Question 6

Firm names // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS

Answer 6

A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction

(CMT 6 – new comment but not new law // previously in now-deleted R.7.5)

Question 7

Firm affiliation // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS

Answer 7

Lawyers may not imply or hold themselves out as practicing together in one firm when they are not a firm, as defined in Rule 1.0(c), because to do so would be false and misleading

(CMT 7 – new comment but not new law // previously in now-deleted R.7.5)

Question 8

Using name of lawyer in public office // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS

Answer 8

Use of name of lawyer who holds public office in firm name or communications from firm = misleading

(CMT 8 – new comment but not new law // previously in now-deleted R.7.5)

Question 9

Analyzing firm names, letterhead, and designations // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS

Answer 9

= communications concerning a lawyer’s services

CMT 5 – new comment but not new law // previously in now-deleted R.7.5

Question 10

5 examples of misleading firm name/designation // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS

Answer 10

law firm name or designation is misleading if it implies a connection

1. with a government agency
2. with a deceased lawyer who was not a former member of the firm
3. with a lawyer not associated with the firm or a predecessor firm
4. with a nonlawyer
5. with a public or charitable legal services organization

EXAMPLE = If a firm uses a trade name that includes a geographical name such as “Springfield Legal Clinic,” an express statement explaining that it is not a public legal aid organization may be required to avoid a misleading implication

(CMT 5 – new comment but not new law // previously in now-deleted R.7.5)

Question 11

6 permissive types of communication // R.7.2 COMMUNICATIONS

Answer 11

CMT 1 gives types of communication lawyer may use to advertise his service
= permits public dissemination of information concerning
1. a lawyer’s or law firm’s name, address, email address, website, telephone number
2. the kinds of services the lawyer will undertake
3. the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements
4. a lawyer’s foreign language ability
5. names of references and, with their consent, names of clients regularly represented
6. other information that might invite the attention of those seeking legal assistance

R.7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES: SPECIFIC RULES

Question 12

media // R.7.2 COMMUNICATIONS

Answer 12

(a) A lawyer may communicate information regarding the lawyer’s services through any media

R.7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES: SPECIFIC RULES

Question 13

referrals // R.7.2 COMMUNICATIONS

Answer 13

(b) A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may
1. pay the reasonable costs of advertisements or communications permitted by 2. pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;
3. pay for a law practice in accordance with Rule 1.17;
4. refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, IF reciprocal referral agreement non-exclusive AND client informed of existence/nature of agreement
5. give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services

R.7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES: SPECIFIC RULES

Question 14

Certification as specialist // R.7.2 COMMUNICATIONS

Answer 14

(c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law UNLESS
1. the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state/DC/US territory or that has been ABA-accredited AND
2. the name of the certifying organization is clearly identified in the communication

R.7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES: SPECIFIC RULES

Question 15

Permissive communications of specialty // R.7.2 COMMUNICATIONS

Answer 15

• permits a lawyer to communicate that the lawyer does or does not practice in particular areas of law
• generally permitted to state that the lawyer
  — “concentrates in” or is a “specialist,”
  — practices a “specialty,” or “specializes in”
  — particular fields based on the lawyer’s experience, specialized training or education
• BUT such communications are subject to the “false and misleading” standard applied in Rule 7.1 to communications concerning a lawyer’s services
  (application of rule very much based on semantics)

CMT 9, R.7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES: SPECIFIC RULES

Question 16

Contact info // R.7.2 COMMUNICATIONS

Answer 16

(d) Any communication made under this Rule must include name and contact info of at least one lawyer/law firm responsible for its content
(includes a website address, a telephone number, an email address or a physical office location (CMT 12))

R.7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES: SPECIFIC RULES

Question 17

Legal service plan v. lawyer referral service // R.7.2 COMMUNICATIONS

Answer 17

legal service plan = a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation

lawyer referral service = any organization that holds itself out to the public as a lawyer referral service

CMT 6, R.7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES: SPECIFIC RULES

Question 18

Qualified lawyer referral services // R.7.2 COMMUNICATIONS

Answer 18

Qualified referral services = consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections AKA one that is approved by an appropriate regulatory authority as affording adequate protections for the public

EXAMPLES = such as complaint procedures or malpractice insurance requirements

CMT 6, R.7.2 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES: SPECIFIC RULES

Question 19

Solicitation v. advertising // R.7.3 SOLICITATION

Answer 19

• Rules are more restrictive as to solicitation than advertising
• Amended last year to be slightly less restrictive

R.7.3 SOLICITATION OF CLIENTS

Question 20

Solicitation/solicit definition // R.7.3 SOLICITATION

Answer 20

Solicitation/solicit =

• communication initiated by/on behalf of a lawyer/firm
• that is directed to a specific person
• whom the lawyer knows or reasonably should know
• needs legal services in a particular matter
• AND that offers to provide or reasonably can be understood as offering to provide
• legal services for that matter

R.7.3(a) SOLICITATION OF CLIENTS

Question 21

Prohibited solicitation // R.7.3 SOLICITATION

Answer 21

A lawyer shall not solicit professional employment

• by live person-to-person contact
• when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain
• UNLESS the contact is with a
  (1) lawyer
  (2) person who has a family, close personal, or prior business or professional relationship with lawyer/firm
  (3) person who routinely uses for business purposes the type of legal services offered by the lawyer

R.7.3(b) SOLICITATION OF CLIENTS

Question 22

Participation with prepaid/group legal plan // R.7.3 SOLICITATION

Answer 22

Notwithstanding (b) prohibitions, lawyer can participate with prepaid/group legal service plan operated by org not owned/directed by lawyer that uses live person-to-person contact to enroll members/sell subscription from persons not known to need legal services in particular matter covered by plan

R.7.3(d) SOLICITATION OF CLIENTS

Question 23

Prohibited solicitation // R.7.3 SOLICITATION

Answer 23

Lawyer cannot solicit even if not prohibited in (b) IF

1. Person made clear they don’t want to be solicited or
2. Solicitation involves coercion, duress, or harassment

R.7.3(c) SOLICITATION OF CLIENTS

Question 24

Limits of R.7.3’s regulation // R.7.3 SOLICITATION

Answer 24

• Only regulates solicitations (no other types of communication)
• Doesn’t prohibit communications authorized by law/ordered by court or other tribunal (R.7.3(d))

Question 25

Key change of amendments // R.7.3 SOLICITATION

Answer 25

removed old R.7.3(c) which had requirement “advertising material”
= “ADVERTISING MATERIAL” REQUIREMENT NO LONGER APPLIES

R.7.3(c) SOLICITATION OF CLIENTS

Question 26

live person-to-person contact // R.7.3 SOLICITATION

Answer 26

= in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection

(does not include chat rooms, text messages or other written communications that recipients may easily disregard)

CMT 2, R.7.3(c) SOLICITATION OF CLIENTS

Question 27

2 rationales // R.7.3 SOLICITATION

Answer 27

1. potential for overreaching/undue influence/intimidation when soliciting person known to be in need of legal services, subjects already-overwhelmed person to private importuning of trained advocate and makes difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self-interest (CMT 2)
2. content of live p2p contact can be disputed and not subjected to 3P scrutiny (CMT 4)

Question 28

3 exceptions // R.7.3 SOLICITATION

Answer 28

= can engage in live p2p contact when

1. Contacting another lawyer
2. Prospective client has family, close personal, or prior business/professional relationship with lawyer
3. Person who routinely uses for business purposes the type of legal services offered by the lawyer (new!)