Professional Ethics of Legal Advertising - Introduction

From: Professional Ethics of Legal Advertising - Introduction

ABA's Model Rules of Professional Conduct

In 2018, the American Bar Association House of Deligates revised the ABA's Model Rules of Professional Conduct relating to the issues of lawyer marketing, advertising and solicitation. The original rules were geared toward 20th Century advertising practices involving print, television and radio, according to Micah Buchdah of The Law Marketing Consultancy, and they had become obsolete through the rapid evolution of online and mobile advertising technology. The full text of these changed advertising rules is contained within Rules 7.1 to 7.6, Model Rules of Professional Conduct.

Advertising

As revised, the ABA's ethical guidance is much more abstract than before. In simplest form, lawyer advertising may not be:

• false,
• deceptive, or
• misleading.

Rule 7.1 Communications Concerning a Lawyer's Services

"A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading."

See also: Explained: Update to advertising, marketing rules on the ABA web site.

The new Rule 7.2 (a) states:

"A lawyer may communicate information regarding the lawyer’s services through any media."

Rule 7.2 also provides more specific guidance:

• permitting the payment of reasonable costs for allowed advertisements, Rule 7.2(b)(1);
• prohibiting the payment of referral fees to non-lawyers, Rule 7.2(b);
• allowing the payment of usual fees to qualified non-profit lawyer referral services, Rule 7.2(b)(2);
• restricting claims of legal specialization, Rule 7.2(c); and
• requiring lawyer contact information in marketing materials, Rule 7.2(d).

Solicitation of Clients

Solicit (verb) defined - Standard American English
(1) To seek to obtain by persuasion, entreaty, or formal application. (2) To petition persistently; importune. (3) To approach or accost a person with an offer of sex in exchange for payment. American Heritage Dictionary - 5th ed.
ABA Rule 7.3(a) defines “Solicitation” as:

1. a communication initiated by or on behalf of a lawyer that,
2. is directed to a specific person when,
3. the lawyer knows the individual needs legal services in a particular matter, and which
4. offers to provide legal services for that matter.

ABA Rule 7.3(b) specifies the limits on client 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 there is a pre-existing family, personal or business relationship, or of a business that routinely hires lawyers for commercial purposes.
But, under no circumstances shall a lawyer solicit professional employment if "the solicitation involves coercion, duress or harassment." Rule 7.3(c)
The Comments to Rule 7.3 state that a lawyer’s communication is not a solicitation . . . .

1. if it is directed to the general public, or
2. if it is in response to a request for information or is automatically generated in response to electronic searches.

The comment gives examples of communications directed to the general public, which are not prohibited solicitations, as:

• billboards,
• Internet banner advertisements,
• websites, or
• television commercials.

The comments to Rule 7.3 make it clear that when a lawyer is seeking legal business through live person-to-person contact, it is a solicitation and prohibited in the absence of one of the enumerated exceptions.

“ 'Live person-to-person contact' means 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. Such person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard."

The ethics rule against solicitation aims, in large part, to avoid the risk of overreaching and undue influence when a trained lawyer brings his or her pursuasive skills to bear in a personal "selling" situation, to the disadvantage of a prospective client. "The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self‑interest in the face of the lawyer’s presence and insistence upon an immediate response. The situation is fraught with the possibility of undue influence, intimidation, and overreaching."
The comments to Rule 7.3 state that the potential for overreaching is inherent in live person-to-person contact. Lawyers have alternative means of conveying necessary information. Since the contents of live person-to-person contact can be disputed and may not be subject to third‑party scrutiny, written communications between lawyer and prospective client are preferred.

"These forms of communications make it possible for the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the public to live person-to-person persuasion that may overwhelm a person’s judgment."

----------- oOo ----------

This is not legal advice and I am not a lawyer.