Obtaining Clients through advertising & solicitation Chapter 3

Rule 7: Attorney Advertising Communications Concerning Lawyer’s Services RULE 7.1 Advertising RULE 7.2 Solicitation of Clients RULE 7.3 Political Contributions RULE 7.6 Note: The ABA recently amended Rule 7, deleting Rules 7.4 and 7.5 and putting some of that content in Rule 7.3.

Advertising and Solicitation Rule 7 governs how a lawyer advertises and obtains new clients… Advertising refers to the lawyer’s communication with the public at large or a subset of the public; Solicitation refers to the lawyer’s communication with an individual which is initiated by the lawyer (or agent) and designed to entice the individual to hire the lawyer

Rule 7.1: Communications Concerning Lawyer’s Services A lawyer shall not make: false or misleading communication about the lawyer or the lawyer's services A communication is false or misleading if it contains: material misrepresentation of fact or law, OR omits a fact necessary to make the statement considered as a whole not materially misleading

Truthful and Not Misleading Rule 7.1 applies to all kinds of communication, including: Advertisements Personal Communications (via letter, email, or telephone) Office Signs Professional Cards Professional Announcements Letterhead Brochures L is subject to discipline for any type of communication about L or L’s services that is false or misleading Truthful and Not Misleading

Truthful but Misleading Truthful statements that are misleading are also prohibited by this Rule (Cmt. 2) Communication can be true but misleading if it omits a fact necessary to make the communication as a whole not materially misleading A truthful statement is also misleading if there is a substantial likelihood 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

No Unjustified Expectations True communications about a lawyer’s achievements in past cases may be misleading if it could lead a reasonable person to form an unjustified expectation that the same results could be obtained in a similar case; An unsubstantiated comparison of the lawyer's services or fees with services or fees of another lawyer may be misleading if presented with such specificity as to lead a reasonable person to conclude the comparison can be substantiated; Inclusion of a disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public

MPRE RELEASED QUESTIONs The MPRE questions and answers provided in this presentation are copyrighted by the National Conference of Bar Examiners (“NCBE”). You are permitted to view them for your personal and non-commercial use only. You are not permitted to copy, modify, reproduce, post, disclose, or distribute any of the items in whole or in part. Any unauthorized use of the items is a violation of NCBE’s rights and could subject you and others who are involved to criminal and civil penalties.

MPRE RELEASED QUESTION The law firm of Alpha and Beta has a radio commercial which states: “Do you have a legal problem? Are you being sued? Consult Alpha and Beta, licensed attorneys at law. Initial conference charge is $25 for one hour. Act now and protect your interest. Call at 1234 Main Street; telephone area code (101) 123-4567.”

Choices – MPRE RELEASED Question Are Alpha and Beta subject to discipline for the commercial? Yes, because the qualification of the lawyers are not stated. Yes, because the radio broadcast may encourage litigation. No, if all the statements in the radio broadcast are true. No, unless the radio broadcast is heard outside the state in which they are licensed.

Answer – MPRE RELEASED QUESTION Yes, because the qualification of the lawyers are not stated. Yes, because the radio broadcast may encourage litigation. No, if all the statements in the radio broadcast are true. No, unless the radio broadcast is heard outside the state in which they are licensed.

MPRE RELEASED QUESTION MPRE – Practice Question The following advertisement appeared in a daily newspaper in a state in which both parties are members of the bar: Albert Alpha, M.D., J.D. and Bernie Beta, J.D. Attorneys at Law 1000 “A” Street, City, State, 00000 Telephone (555) 555-5555

Choices – MPRE RELEASED QUESTION Are Alpha and Beta subject to discipline? No, because both law and medicine are licensed professions. No, if they possess the degree(s) stated. Yes, because the reference to the M.D. degree is self- laudatory. Yes, unless they limit their practice to areas in which a medical degree is relevant.

Answer – MPRE RELEASED QUESTION No, because both law and medicine are licensed professions. No, if they possess the degree(s) stated. Yes, because the reference to the M.D. degree is self- laudatory. Yes, unless they limit their practice to areas in which a medical degree is relevant.

(a) L may advertise services through written, recorded or electronic communication, including public media. (b) L shall not give anything of value for recommending services Except may (1) pay reasonable costs of advertisements or communications; (2) pay usual charges of legal service plan, not-for-profit, or qualified lawyer referral service Qualified Lawyer Referral Service: lawyer referral service approved by appropriate regulatory authority; (3) pay for law practice in accordance with Rule 1.17; (4) refer clients to another lawyer or nonlawyer professional pursuant to agreement, if (i) reciprocal referral agreement is not exclusive, AND (ii) client is informed of the existence and nature of the agreement (c) Any communication shall include: Name of at least one lawyer or law firm responsible for content Office address Rule 7.2: Advertising

Public Dissemination of Information Lawyers can publicly disseminate the following information: lawyer's name or firm name address, email address, website, and telephone number the kinds of services the lawyer will undertake the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements a lawyer's foreign language ability names of references and, with their consent (otherwise privileged info), names of clients regularly represented and other information that might invite the attention of those seeking legal assistance

Paying Others to Recommend a Lawyer Lawyers are not permitted to pay others for recommending L’s services or for channeling professional work in a manner violating Rule 7.3 (Cmt. 5) However, Ls may pay for advertising and communications permitted within this rule Cost of print directory listing On-line directory listing Newspaper Ads Television and Radio airtime Domain-name registrations Sponsorship fees Banner Ads Group Advertising Lawyers may compensate employees, agents, or vendors who are hired to provide marketing or client-development services (i.e. publicists, PR personnel, business-development staff, website designers)

Referral Services Lawyer may pay usual charges for a legal service plan or a not-for-profit or qualified lawyer referral services (Cmt. 6) Legal service plan: a system that assists prospective clients to secure legal representation Qualified lawyer referral system: one that is approved by an appropriate regulatory authority as affording adequate protections for prospective clients Lawyer accepting referrals from a legal service plan or lawyer referral plan must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations (Cmt. 7) Lawyer may agree to refer clients to another lawyer or non-lawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer (Cmt. 8) Lawyer who receives referrals from another must not pay anything solely for the referral Referral agreements cannot be exclusive and the client must be informed of the arrangement

MPRE RELEASED QUESTION MPRE – Practice Question Attorney recently admitted to practice, opened an office near a residential neighborhood and published the following advertisement in the local newspaper. *****COUPON***** Get Acquainted with Your Neighborhood Lawyer Albert Attorney Suite 2 – 1100 Magnolia Ave. Sunshine City, State 01000 Telephone: (555) 555-5555 In order to acquaint you with our services, we are offering a one-hour consultation to review your estate plans, including your wills, trust, and similar documents, all at the nominal cost of $25 to anyone presenting this coupon. Call now for an appointment.

Choices – MPRE RELEASED QUESTION Is Attorney subject to discipline? Yes, because Attorney is soliciting business from persons with whom Attorney had no prior relationship. Yes, because Attorney requires the use of a coupon. No, if Attorney provides the services described for the fee stated. No, unless Attorney is seeking business from persons who are already represented by a lawyer.

Answer – MPRE RELEASED QUESTION Is Attorney subject to discipline? Yes, because Attorney is soliciting business from persons with whom Attorney had no prior relationship. Yes, because Attorney requires the use of a coupon. No, if Attorney provides the services described for the fee stated. No, unless Attorney is seeking business from persons who are already represented by a lawyer.

Rule 7.3 : Solicitation of Clients (a) A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1)  is a lawyer; OR (2)  has family, close personal, or prior professional relationship with lawyer (b)  Even if not prohibited by (a), A lawyer shall not solicit professional employment by written, recorded or electronic communication or by in‑person, telephone or real-time electronic contact if: (1)  target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; OR (2)  solicitation involves coercion, duress or harassment.

Rule 7.3 : Solicitation of Clients: Targeted Communications (c) Every written, recorded or electronic communication soliciting professional employment from anyone known to be in need of legal services shall include: The words "Advertising Material" on the outside envelope AND The words “Advertising Material” at beginning & ending of any recorded or electronic communication Unless recipient of communication is person specified in paragraphs (a)(1) or (a)(2) (d) A lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships for the plan from persons who are not known to need legal services in a particular matter covered by the plan

This form of communication is not directed to a prospective client Solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and offers to provide or can reasonably be understood as offering to provide legal services (Cmt. 1) Lawyer is not permitted to contact a prospective client through direct, in-person communication However, a lawyer may directly contact former clients and family members, or in situation where lawyer is motivated by considerations other than pecuniary gain (Cmt. 5) Rule is not intended to prohibit a lawyer contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members (Cmt. 7) This form of communication is not directed to a prospective client No Solicitation

“Advertising Material” All written, electronic, or recorded communications with prospective clients must include the words “Advertising Materials” Requirement under 7.3(c) does not apply to communications sent in response to requests from potential clients (Cmt. 8) General announcements by lawyers, including change in personnel or office location, do not constitute communications soliciting professional employment from a client

Targeted Direct Mailings Lawyers are not prohibited from sending truthful, non-deceptive letters to persons known to face specific legal problems

Harassing Prospective Clients Lawyers may not use coercion, duress, or harassment when making contact with prospective clients Lawyers may not contact prospective clients who have made known their desire not to be solicited by the lawyer Harassing Prospective Clients

Rule 7.6: Political Contributions A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment

Participating in Political Campaigns Lawyers have the right to participate fully in the political process, including making and solicitation political contributions to candidates (Cmt. 1) 1 Lawyers may not make or solicit contributions in order to obtain an engagement for legal work awarded by government agencies, or obtain appointment by a judge (Cmt. 1) 2 If a lawyer makes or solicits a political contribution under circumstances that constitute bribery or another crime, Rule 8.4(b) is implicated (Cmt. 6) 3

Defining Political Contributions “Political contribution” denotes any gift, subscription, loan, advance or deposit of anything of value made directly or indirectly to a candidate, incumbent, political party or campaign committee to influence or provide financial support for election to or retention in judicial or other government office (Cmt. 2) Does not include contributions in initiative and referendum elections Does not include uncompensated services