Rule 7: Missouri Rules of Advertising Flashcards
Communication Concerning a Lawyer’s Services Rule
A lawyer shall not make a false or misleading communication about the lawyer or their services. (7.1)
When is a communication about a lawyer or their services false?
A communication is false if it contains a material misrepresentation of fact or law.
Includes: a statement or implication that the lawyer is able to improperly or irrelevantly influence any tribunal, legislation, or public official.
(7.1)
When is a communication about a lawyer or their services misleading?
A communication is misleading if it:
a. omits a fact which leads to it being overall materially misleading
b. is likely to create an unjustified expectation of results
c. proclaims past results without stating that past results are not a guarantee of future results, and every case is different and must be judged on its own merits. (However, a communication can provide a verifiable statement on the number of cases handled in a particular area without disclaimer) [Does not apply to LSC/pro bono]
d. states or implies that the lawyer can achieve results by means that violate the Rules or other law
e. compares the quality of services with other lawyers’ services, unless the comparison can be factually substantiated
f. advertises for a specific type of case where the lawyer has neither experience nor competence
g. identifies an area of practice in which the lawyer routinely refers matters to other lawyers, without conspicuously mentioning that fact [Does not apply to LSC/pro bono]
h. contains any paid testimonial endorsement without conspicuous identification that payment has been made for it [Does not apply to LSC/pro bono]
i. contained any simulated portrayal of a case/victim/etc without conspicuous identification that it is a simulation
j. provides an office address for an office which is only staffed part time or by appointment only, unless that is conspicuously mentioned
k. states that legal services are available on contingency or no-recovery-no-fee basis without conspicuously stating that the client may be responsible for costs or expenses if that is the case [Does not apply to LSC/pro bono]
(7.1)
Are the rules about misleading statements strict violations?
No, they are presumptions that statements are misleading, so can be rebutted. (7.1)
Advertising Rule
Subject to the 7.1 false and misleading requirements, a lawyer may advertise services through public media, or through direct mail if it is distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter (7.2a)
A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination with a record of when and where it was used, and at least one lawyer’s name who was responsible for it (7.2b)
A lawyer shall not generally give anything of value to a person for recommending the lawyer’s services (7.2c)
A lawyer may not, directly or indirectly, pay all or part of the cost of public media advertisement unless the ad discloses the name and address of the financing lawyer, the relationship between the advertising and financing lawyers, and whether the advertising lawyer is likely to refer cases received through the ad to the financing lawyer (7.2d)
A lawyer or other law firm shall not advertise non-principal offices unless (1) the other office is staffed by a lawyer at least three days a week, or (2) the ad states when a lawyer will be present there, or that meetings will be by appointment only. (7.2e)
Any ad or communication shall contain the following conspicuous disclosure: The choice of a lawyer is an important decision and should not be based solely upon advertisements. (7.2f)
(e) non-principal offices and (f) choice of a lawyer disclosure need not be made if info communicated is limited to the following:
1) name of law firm and lawyers in the firm
2) fields of law they practice
3) date and place of admission to the bar
4) address, email/website, phone number, office hours (7.2g)
Any words or statements required to appear in an ad or communication must appear in the same language as the rest of it. If more than one language is used, disclosures must be in each language. (7.2h)
This rule does not apply to LSC-funded organizations or pro bono services, or to lawyer advertisements that substantially and predominantly feature legal services, non-profits, or recognized community events, institutions, entities, or individuals other than themselves. (7.2i)
May a lawyer ever pay another person for recommending the lawyer’s services?
Yes, provided only that:
(1) a lawyer may pay the reasonable cost of permitted advertising or written communication
(2) a lawyer may pay the reasonable cost of advertising, communication, or other notification required for sale of a law practice
(3) a lawyer may pay the usual charges of a qualified lawyer referral service or other not-for-profit legal services organization
May also pay an assistant to prepare permitted advertisement or communications
(7.2c)
What does conspicuous mean for an advertisement?
Conspicuous means that the disclosure be of such size, color, location, duration, cadence, or audibility that an ordinary person can readily notice, read, hear, or understand it.
Even if a disclosure is large, other elements may distract the ordinary person so that they fail to notice it. This undercutting should be avoided.
On TV, disclosures can be made in writing or orally, but need to be prominent enough.
(7.2f)
Direct Contact with Prospective Clients Rule
This applies to in-person and written solicitations by a lawyer with persons known to need legal services of the kind provided by the lawyer. (Not the kind of advertising from 7.2, but targeted communications.)
DOES NOT APPLY to not-for-profits funded by LSC, or pro bono services. (7.3d)
In-person solicitation: a lawyer may not initiate the in-person, telephone, or real-time electronic solicitation of legal business under any circumstances, other than with an existing or former client, lawyer, close friend, or relative. (7.3a)
Written solicitation: A lawyer may initiate written solicitations to an existing or former client, lawyer, friend, or relative without complying with the requirements of this rule. Written solicitations to others are subject to rules detailed in a later flash card. (7.3b)
A lawyer shall not send, nor knowingly permit to be sent on their behalf, a written solicitation to any prospective client for the purpose of obtaining professional employment, unless it meets several requirements detailed in a later flash card. (7.3c)
What are the rules for written solicitations in targeted communications?
these do not apply to written solicitations to existing or former clients, other lawyers, friends, and relatives.
1) any written solicitation by mail shall be plainly marked “ADVERTISEMENT” on the envelope, and at the top of the first page in type at least as big as anything else in the ad
2) lawyer shall retain a copy of each written solicitation for two years and the names and addresses of people it was sent to
3) each written solicitation must include the following: “Disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to … may wish to consult … exact nature of your legal situation will depend … general info …”
4) written solicitations mailed to prospective clients shall be sent only by regular US mail
5) written solicitations mailed to prospective clients shall not be made to resemble legal documents or pleadings
6) any written solicitation prompted by a specific occurrence shall disclose how the lawyer obtained the info
7) a written solicitation seeking employment by a specific prospective client in a specific matter shall not reveal on the envelope or outside of a pamphlet the nature of the legal problem
8) if a lawyer knows that a lawyer other than the one whose signature on the solicitation will actually handle the case, or that it will be referred, it shall advise the potential client of such
9) a lawyer shall not send a written solicitation on a specific matter if they know or reasonably should that the person is already represented
(7.3b)
When is a lawyer prohibited from sending a written solicitation to a prospective client?
No solicitation for the purpose of employment if:
1) it has been made known to the lawyer that the person does not want to be so solicited
2) the solicitation involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence
3) the solicitation contains a false, fraudulent, misleading, or deceptive statement or claim, or makes claims of comparative quality of legal services without substantiating them, or asserts opinions about the defendant’s liability or assurances of client satisfaction
4) the solicitation concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person solicited or their relative, if the accident or disaster occurred less than 30 days before the solicitation, or if the lawyer knows or reasonably should that the physical/emotional/mental state of the person makes it unlikely that they would exercise reasonable judgment in employing a lawyer
5) the solicitation vilifies, denounces, or disparages any other potential party
(7.3c)
Communication of Fields of Practice and Specialization Rule
A lawyer may communicate the fact that they do or do not practice in particular fields of law, subject to 7.1 false or misleading communications. Generally a lawyer shall not state or imply they are a specialist unless they disclaim that the Supreme Court of MO and MO bar do not review/approve certifications, except:
a) a lawyer admitted to engage in patent practice before the USPTO may use the designation patent attorney or similar;
b) a lawyer engaged in admiralty practice may use that designation.
(7.4)
Firm Names and Letterheads Rule
A lawyer shall not use a firm name, letterhead, or other professional designation that violates 7.1 false or misleading. A trade name may be used in private practice if it does not imply a connection with a gov agency or legal services org. (7.5a)
A law firm with offices in multiple jx may use the same name in each jx, but identification of the lawyers shall indicate the jx limitations (7.5b)
The name of a lawyer holding public office shall not be used in the name of a law firm during a substantial period that they are not actively and regularly practicing with the firm (7.5c)
Lawyers may state or imply they practice in a partnership/org only when that is the fact (7.5d)
Political Contributions to Obtain Government Legal Engagements or Appointments by Judges Rule
A lawyer or law firm shall not accept a government legal engagement or appointment by a judge if the lawyer or firm makes or solicits political contributions for the purpose of being considered for that engagement (7.6)
For lawyers making political contributions for the purpose of an appointment or engagement, what is a political contribution?
A gift, subscription, deposit of any value made to a candidate, incumbent, or campaign.
Does not include initiative and referendum elections
(7.6)
