Marketing of Legal Services

Question 1

How do we decide whether restrictions on marketing are legal?

Answer 1

The In re RMJ principles:

(1) False / inherently misleading - can ban
(2) Potentially misleading - can regulate, not ban
(3) Truthful ads - regulate IFF substantial interest + regulation proportional

Question 2

Can a lawyer claim to be “certified” at something?

Answer 2

IFF truthful and given by organization who enforces standards, Peel.

Question 3

Can the state regulate the in-person solicitation of business?

Answer 3

• Pecuniary purpose: prophylactic bans OK, Ohralik

- Political purpose: IFF show actual injury, Primus

Question 4

Are targeted ads and direct mailings treated the same?

Answer 4

NO:

• Targeted ads: if truthful, substantial interest, Zauderer
• Direct mail: can regulate, but not ban, Shapero; FL Bar v. Went For It (applying interm. scrutiny)

Question 5

Can lawyers pay for referrals?

Answer 5

No, 7.2b, unless an exception applies:

• Reasonable cost of ads, e.g. flyers, 7.2b1
• Usual charges of legal service plan, b2,
• Nominal gifts (appreciation), b5
• Lead generation sites, cmt. 5

Question 6

What is a solicitation, and may lawyers solicit in-person?

Answer 6

A communication directed to a specific person lawyer knows needs legal services in particular matter (NOT general public), 7.3a.

NO live P2P contact, including phone calls, 7.3b, unless:

• Other lawyers, 7.3b1
• Family / friends / business contacts, b2
• Routine business customer of such services, b3