Current through Register Vol. 54, No. 44, November 2, 2024
(a) Subject to the
requirements of Rule
7.1, a lawyer may advertise
services through written, recorded or electronic communications, including
public media, not within the purview of Rule
7.3.
(b) A copy or recording of an advertisement
or written communication shall be kept for two years after its last
dissemination along with a record of when and where it was used. This record
shall include the name of at least one lawyer responsible for its
content.
(c) A lawyer shall not
give anything of value to a person for recommending the lawyer's services,
except that a lawyer may pay:
(1) the
reasonable cost of advertisements or written communications permitted by this
Rule;
(2) the usual charges of a
lawyer referral service or other legal service organization; and
(3) for a law practice in accordance with
Rule 1.17.
(e) An
advertisement or public communication that contains a paid endorsement shall
disclose that the endorser is being paid or otherwise compensated for his or
her appearance or endorsement.
(f)
A non-lawyer shall not portray a lawyer or imply that he or she is a lawyer in
any advertisement or public communication; nor shall an advertisement or public
communication portray a fictitious entity as a law firm, use a fictitious name
to refer to lawyers not associated together in a law firm, or otherwise imply
that lawyers are associated together in a law firm if that is not the
case.
(g) An advertisement or
public communication shall not contain a portrayal of a client by a non-client;
the re-enactment of any events or scenes; or, pictures or persons, which are
not actual or authentic, without a disclosure that such depiction is a
dramatization.
(h) Every
advertisement that contains information about the lawyer's fee shall be subject
to the following requirements:
(1)
Advertisements that state or indicate that no fee shall be charged in the
absence of recovery shall disclose that the client will be liable for certain
expenses in addition to the fee, if such is the case.
(2) A lawyer who advertises a specific fee or
hourly rate or range of fees for a particular service shall honor the
advertised fee for at least ninety (90) days; provided that for advertisements
in media published annually, the advertised fee shall be honored for no less
than one (1) year following initial publication unless otherwise stated as part
of the advertisement.
(i)
All advertisements and written communications shall disclose the geographic
location, by city or town, of the office in which the lawyer or lawyers who
will actually perform the services advertised principally practice law. If the
office location is outside the city or town, the county in which the office is
located must be disclosed.
(j) A
lawyer shall not, directly or indirectly (whether through an advertising
cooperative or otherwise), pay all or any part of the costs of an advertisement
by a lawyer not in the same firm or by any for-profit entity other than the
lawyer's firm, unless the advertisement discloses the name and principal office
address of each lawyer or law firm involved in paying for the advertisement
and, if any lawyer or law firm will receive referrals from the advertisement,
the circumstances under which referrals will be made and the basis and criteria
on which the referral system operates.
(k) A lawyer shall not, directly or
indirectly, advertise that the lawyer or his or her law firm will only accept,
or has a practice limited to, particular types of cases unless the lawyer or
his or her law firm handles, as a principal part of his, her or its practice,
all aspects of the cases so advertised from intake through trial. If a lawyer
or law firm advertises for a particular type of case that the lawyer or law
firm ordinarily does not handle from intake through trial, that fact must be
disclosed. A lawyer or law firm shall not advertise as a pretext to refer cases
obtained from advertising to other lawyers.
Comment:
(1) To assist the public in learing about and
obtaining legal services, lawyers should be allowed to make known their
services not only through reputation but also through organized information
campaigns in the form of advertising. Advertising involves an active quest for
clients, contrary to the tradition that a lawyer should not seek clientele.
However, the public's need to know about legal services can be fulfilled in
part through advertising. This need is particularly acute in the case of
persons of moderate means who have not made extensive use of legal services.
The interest in expanding public information about legal services ought to
prevail over considerations of tradition. Nevertheless, advertising by lawyers
entails the risk of practices that are misleading or overreaching.
(2) This Rule permits public dissemination of
information concerning a 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, names of clients
regularly represented; and other information that might invite the attention of
those seeking legal assistance.
(3)
Questions of effectiveness and taste in advertising are matters of speculation
and subjective judgment. Some jurisdictions have had extensive prohibitions
against television and other forms of advertising, against advertising going
beyond specified facts about a lawyer, or against "undignified" advertising.
Television, the Internet, and other forms of electronic communication are now
among the most powerful media for getting information to the public,
particularly persons of low and moderate income; prohibiting television,
Internet, and other forms of electronic advertising, therefore, would impede
the flow of information about legal services to many sectors of the public.
Limiting the information that may be advertised has a similar effect and
assumes that the bar can accurately forecast the kind of information that the
public would regard as relevant. But see Rule
7.3(a) for the
prohibition against a solicitation through a real-time electronic exchange
initiated by the lawyer.
(4)
Neither this Rule nor Rule
7.3 prohibits communications
authorized by law, such as a notice to members of a class in class action
litigation.
Record of Advertising
(5) Paragraph (b) requires that a record of
the content and use of advertising be kept in order to facilitate enforcement
of this Rule. It does not require that advertising be subject to review prior
to dissemination. Such a requirement would be burdensome and expensive relative
to its possible benefits, and may be of doubtful constitutionality.
Paying Others to Recommend a
Lawyer
(6) Subject
to the limitations set forth under paragraphs (c) and (j), a lawyer is allowed
to pay for advertising permitted by this Rule, but otherwise is not permitted
to pay another person for recommending the lawyer's services or for channeling
professional work in a manner that violates Rule
7.3. A communication contains a
recommendation if it endorses or vouches for a lawyer's credentials, abilities,
competence, character, or other professional qualities. Paragraph (c)(1),
however, allows a lawyer to pay for advertising and communications permitted by
this Rule, including the cost of print, directory listings, on-line directory
listings, newspaper ads, television and radio air time, domain-name
registrations, sponsorship fees, Internet-based advertisements, and group
advertising. A lawyer may compensate employees, agents and vendors who are
engaged to provide marketing or client-development services, such as
publicists, public-relations personnel, business-development staff and website
designers. Moreover, a lawyer may pay others for generating client leads, such
as Internet-based client leads, as long as the lead generator does not
recommend the lawyer, any payment to the lead generator is consistent with
Rules 1.5(e) and
5.4, and the lead generator's
communications are consistent with Rule
7.1. To comply with Rule
7.1, a lawyer must not pay a lead
generator that states, implies, or creates a reasonable impression that it is
recommending the lawyer, is making the referral without payment form the
lawyer, or has analyzed a person's legal problems when determining which lawyer
should receive the referral. See also Rule
5.3 for the duties of lawyers and
law firms with respect to the conduct of non-lawyers and Rule
8.4(a). This
restriction does not prevent an organization or person other than the lawyer
from advertising or recommending the lawyer's services. Thus, a legal aid
agency or prepaid legal services plan may pay to advertise legal services
provided under its auspices. Likewise, a lawyer may participate in lawyer
referral programs and pay the usual fees charged by such programs. Paragraph
(c) does not prohibit paying regular compensation to an assistant, such as a
secretary, to prepare communications permitted by this Rule.
Endorsements
(7) Paragraphs (d) and (e) require
truthfulness in any advertising in which an endorsement of a lawyer or law firm
is made. The prohibition against endorsement by a celebrity or public figure is
consistent with the purpose of Rule
7.1 to avoid the creation of an
unjustified expectation of a particular legal result on the part of a
prospective client.
Portrayals
(8) Paragraphs (f) and (g), similarly,
require truth in advertising when portrayals are made part of legal
advertising. A portrayal, by its nature, is a depiction of a person, event or
scene, not the actual person, event or scene itself. Paragraphs (f) and (g)
were added to ensure that any portrayals used in advertising legal services are
not misleading or overreaching. Creating the impression that lawyers are
associated in a firm where that is not the case was considered inherently
misleading because it suggests that the various lawyers involved are available
to support each other and contribute to the handling of a case. Paragraph (f)
accordingly prohibits advertisements that create the impression of a
relationship among lawyers where none exists, such as by using a fictitious
name to refer to the lawyers involved if they are not associated together in a
firm.
Disclosure of Fees and Client
Expenses
(9)
Consistent with the public's need to have an accurate dissemination of
information about the cost of legal services, paragraph (h) requires disclosure
of a client's responsibility for payment of expenses in contingent fee matters
when the client will be required to pay any portion of expenses that will be
incurred in the handling of a legal matter.
(10) Under the same rationale, paragraph (h)
imposes minimum periods of time during which advertised fees must be honored.
Disclosure of Geographic Location of
Practice
(11)
Paragraph (i) requires disclosure of the geographic location in which the
advertising lawyer's primary practice is situated. This provision seeks to
rectify situations in which a person seeking legal services is misled into
concluding that an advertising lawyer has his or her primary practice in the
client's hometown when, in fact, the advertising lawyer's primary practice is
located elsewhere. Paragraph (i) ensures that a client has received a
disclosure as to whether the lawyer he or she ultimately chooses maintains a
primary practice located outside of the client's own city, town or county.
Disclosure of Payment of Advertising
Costs
(12)
Paragraph (j) prohibits lawyers and law firms from paying advertising costs of
independent lawyers or other persons unless disclosure is made in the
advertising of the name and address of each paying lawyer or law firm, as well
as of the business relationship between the paying parties and the advertising
parties.
(13) Advertisements
sponsored by advertising cooperatives (where lawyers or law firms pool
resources to buy advertising space or time) are considered advertisements by
each of the lawyers participating in the cooperative and accordingly will be
subject generally to all of the provisions of these Rules on advertising.
Advertising cooperatives have been referred to expressly in paragraph (j) to
make clear that references to "indirect" actions are intended to have a wide
scope and include advertising cooperatives and similar arrangements. Thus,
advertising cooperatives and similar arrangements are permissible, but only if
the required disclosures are made. In the case of cooperative arrangements, the
required disclosures must include the basis or criteria on which lawyers or law
firms participating in the cooperative will be referred cases, e.g.,
chronological order of calls, geographic location, etc.
(14) Paragraph (k) prohibits a lawyer from
misleading the public by giving the impression in an advertisement that the
lawyer or his or her law firm specializes in a particular area of the law
unless the lawyer or his or her law firm handles the type of case advertised as
a principal part of the practice of the lawyer or law firm. For example, where
a lawyer advertises for "personal injury cases" or "serious personal injury
cases" or "death cases only" those types of cases must, in fact, constitute a
principal part of the practice of the lawyer or his or her firm.
(15) Paragraph (k) also prohibits advertising
for the primary purposes of obtaining cases that can be referred or brokered to
another lawyer. Obviously, a lawyer is permitted and encouraged to refer cases
to other lawyers where that lawyer does not have the skill or expertise to
properly represent a client. However, it is misleading to the public for a
lawyer or law firm, with knowledge that the lawyer or law firm will not be
handling a majority of the cases attracted by advertising, to nonetheless
advertise for those cases only to refer the cases to another lawyer whom the
client did not initially contact. In addition, a lawyer who advertises for a
particular type of case may not mislead the client into believing that the
lawyer or law firm will fully represent that client when, in reality, the
lawyer or law firm refers all of its non-settling cases to another law firm for
trial.
