LAWYER ADVERTISING & SOLICITATION Flashcards
rules // LAWYER ADVERTISING & SOLICITATION
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
Application // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS
Applies to all communications from lawyer to specific individual or public-at-large (CMT 1)
Misleading communication // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS
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
misleading truthful statements // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS
Truthful statement = misleading if
- it omits fact necessary to make lawyer’s communication considered as a whole not misleading
- 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
- 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
Fixing misleading ad // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS
“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
Firm names // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS
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)
Firm affiliation // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS
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)
Using name of lawyer in public office // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS
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)
Analyzing firm names, letterhead, and designations // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS
= communications concerning a lawyer’s services
CMT 5 – new comment but not new law // previously in now-deleted R.7.5
5 examples of misleading firm name/designation // R.7.1 LIMITS ON SOLICITATIONS AND COMMUNICATIONS
law firm name or designation is misleading if it implies a connection
- with a government agency
- with a deceased lawyer who was not a former member of the firm
- with a lawyer not associated with the firm or a predecessor firm
- with a nonlawyer
- 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)
6 permissive types of communication // R.7.2 COMMUNICATIONS
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
media // R.7.2 COMMUNICATIONS
(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
referrals // R.7.2 COMMUNICATIONS
(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
Certification as specialist // R.7.2 COMMUNICATIONS
(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
Permissive communications of specialty // R.7.2 COMMUNICATIONS
- 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
Contact info // R.7.2 COMMUNICATIONS
(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
Legal service plan v. lawyer referral service // R.7.2 COMMUNICATIONS
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
Qualified lawyer referral services // R.7.2 COMMUNICATIONS
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
Solicitation v. advertising // R.7.3 SOLICITATION
- Rules are more restrictive as to solicitation than advertising
- Amended last year to be slightly less restrictive
R.7.3 SOLICITATION OF CLIENTS
Solicitation/solicit definition // R.7.3 SOLICITATION
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
Prohibited solicitation // R.7.3 SOLICITATION
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
Participation with prepaid/group legal plan // R.7.3 SOLICITATION
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
Prohibited solicitation // R.7.3 SOLICITATION
Lawyer cannot solicit even if not prohibited in (b) IF
- Person made clear they don’t want to be solicited or
- Solicitation involves coercion, duress, or harassment
R.7.3(c) SOLICITATION OF CLIENTS
Limits of R.7.3’s regulation // R.7.3 SOLICITATION
- 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))
Key change of amendments // R.7.3 SOLICITATION
removed old R.7.3(c) which had requirement “advertising material”
= “ADVERTISING MATERIAL” REQUIREMENT NO LONGER APPLIES
R.7.3(c) SOLICITATION OF CLIENTS
live person-to-person contact // R.7.3 SOLICITATION
= 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
2 rationales // R.7.3 SOLICITATION
- 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)
- content of live p2p contact can be disputed and not subjected to 3P scrutiny (CMT 4)
3 exceptions // R.7.3 SOLICITATION
= can engage in live p2p contact when
- Contacting another lawyer
- Prospective client has family, close personal, or prior business/professional relationship with lawyer
- Person who routinely uses for business purposes the type of legal services offered by the lawyer (new!)
