Current through Register Vol. 54, No. 44, November 2, 2024
(b) A lawyer shall not compensate, give or
promise anything of value to a person for recommending the lawyer's services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted
by this Rule;
(2) pay the usual charges of a lawyer referral
service or legal service plan; and
(3) pay for a law practice in
accordance with Rule 1.17.
(c) A lawyer may
communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall
not state or imply that the lawyer is a specialist in a particular field, except as follows:
(1) a lawyer who has been certified by an organization approved by the
Supreme Court of Pennsylvania as a certifying organization in accordance with paragraph (d) may advertise the
certification during such time as the certification of the lawyer and the approval of the organization are
both in effect;
(2) lawyer who is currently certified as a
specialist in a particular field of law under the regulations of the highest court of a state in which that
lawyer is licensed to practice may communicate that certification so long as the lawyer clearly designates
the jurisdiction from which the certification was issued and, unless the lawyer is also certified as
described in paragraph (1) above, the communication also states that the lawyer is not certified in
Pennsylvania;
(3) a lawyer who is not certified as a specialist
as described in paragraphs (1) or (2) above may not claim to be a specialist in a particular field of law
unless the lawyer can objectively verify the claim based upon the lawyer's experience, specialized training
or education, and the claim is not otherwise false or misleading in violation of Rule 7.1,
see Comment (8);
(i) a lawyer who communicates a specialty
under this paragraph (3) shall include a disclaimer stating that the lawyer is not certified in the claimed
specialty;
(ii) a lawyer may not claim specialization in more
than one field of law;
(4) a lawyer admitted to engage
in patent practice before the United States Patent and Trademark Office may use the designation "patent
attorney" or substantially similar designation; and
(5) a lawyer
engaged in admiralty practice may use the designation "admiralty," "proctor in admiralty" or substantially
similar designation.
(d) Upon recommendation of the
Pennsylvania Bar Association, the Supreme Court of Pennsylvania may approve for purposes of paragraph (c) an
organization that certifies lawyers, if the Court finds that:
(1)
advertising by a lawyer of certification by the certifying organization will provide meaningful information,
which is not false, misleading or deceptive, for use of the public in selecting or retaining a lawyer;
and
(2) certification by the organization is available to all
lawyers who meet objective and consistently applied standards relevant to practice in the area of the law to
which the certification relates.
The approval of the certifying organization shall be for
such period not longer than five (5) years as the Court shall order, and may be renewed upon recommendation
of the Pennsylvania Bar Association.
(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.
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.
(g) 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 will 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.
(h) 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.
(i) A lawyer shall not, directly or indirectly
(whether through an advertising cooperative or other-wise), 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.
(j) A lawyer shall not, directly or indirectly,
advertise that the lawyer or the lawyer's law firm will only accept, or has a practice limited to, particular
types of cases unless the lawyer or law firm handles these types of cases as a principal part of the lawyer's
or law firm's practice. A lawyer or law firm shall not advertise as a pretext to refer cases obtained from
advertising to other lawyers.
(k) Any communication made under
this Rule must include the name and contact information of at least one lawyer or law firm responsible for
its content.
Comment:
(1) This
Rule permits public dissemination of information concerning a lawyer's or law firm's 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.
Paying Others to Recommend a
Lawyer
(2) Except as permitted under paragraphs
(b)(1)-(b)(3), a lawyer is not permitted to pay others for recommending the lawyer's services. A
communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities,
competence, character, or other professional qualities. Directory listings and group advertisements that list
lawyers by practice area, without more, do not constitute impermissible "recommendations."
(3) Paragraph(b)(1) 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, television and radio station employees or spokespersons and website
designers.
(4) 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) (division of fees) and 5.4 (professional
independence of the lawyer), and the lead generator's communications are consistent with Rule 7.1 (communications concerning a lawyer's services). 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 from the lawyer, or has analyzed a person's legal problems when
determining which lawyer should receive the referral. See Comment (2) (definition of "recommendation"). See
also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers) for the duties of
lawyers and law firms with respect to the conduct of non-lawyers and Rule 8.4(a) (duty to avoid violating the
Rules through the acts of another).
(5) 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. A "legal
service plan" is a prepaid or group legal service plan or a similar delivery system that assists people who
seek to secure legal representation.
(6) A lawyer who accepts
assignments or referrals from a legal service plan or referrals from a lawyer referral service must act
reasonably to assure that the activities of the plan or service are compatible with the lawyer's professional
obligations. Legal service plans and lawyer referral services may communicate with the public, but such
communication must be in conformity with these Rules. A "lawyer referral service" is any person, group of
persons, association, organization or entity that receives a fee or charge for referring or causing the
direct or indirect referral of a potential client to a lawyer drawn from a specific group or panel of
lawyers.
Communications About Fields of
Practice
(7) Paragraph (c)(1) permits a lawyer
to state that the lawyer is certified as a specialist in a field of law if such certification is granted by
an organization approved by the Supreme Court of Pennsylvania. Paragraph (c)(2) permits a lawyer to state the
lawyer is certified as a specialist under the regulations of the highest court of another state where the
lawyer is licensed to practice, so long as the lawyer clearly states if the lawyer is not also certified in
Pennsylvania. Certification signifies that an objective entity has recognized an advanced degree of knowledge
and experience in the specialty area greater than is suggested by general licensure to practice law. Court
approved certifying organizations may be expected to apply standards of experience, knowledge and proficiency
to ensure that a lawyer's recognition as a specialist is meaningful and reliable. To ensure that consumers
can obtain access to useful information about an organization granting certification, the name of the
certifying organization must be included in any communication regarding the certification.
(8) Paragraph (c) of this Rule generally permits a lawyer to communicate
that the lawyer does or does not practice in a particular area of law. Under paragraph (c)(3), a lawyer is
permitted to state that the lawyer "concentrates in" or is a "specialist," practices a "specialty," or
"specializes in" particular fields based on the lawyer's objectively verifiable experience, specialized
training or education. Such communications are subject to the "false and misleading" standard applied in Rule
7.1 to communications concerning a lawyer's services. Authorizing such objectively verifiable statements
comports with constitutional limitations on the regulation of commercial speech. Appropriate bases for a
lawyer's claim of specialization under paragraph (c)(3) may include the proportion of the lawyer's practice
devoted to the specialty, the years of experience practicing the specialty, the continued education acquired
pertaining to the specialty, and the recency of the experience or education in the field of
specialization.
(9) The Patent and Trademark Office has a
long-established policy of designating lawyers practicing before the Office. The designation of Admiralty
practice also has a long historical tradition associated with maritime commerce and the federal courts. A
lawyer's communications about these practice areas are not prohibited by this Rule.
(10) Paragraph (e) requires 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
(11) Paragraph (f), similarly, requires 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. Paragraph (f) ensures 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 is 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
(12) Consistent with the public's need
to have an accurate dissemination of information about the cost of legal services, paragraph (g) 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.
(13) Under the same rationale, paragraph (g) imposes
minimum periods of time during which advertised fees must be honored.
Disclosure of Geographic Location of
Practice
(14) Paragraph (h) 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 (h) 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
(15) Paragraph (i) 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.
(16) 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 (i) 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.
(17) Paragraph (j) prohibits a lawyer from misleading the public by giving
the impression in an advertisement that the lawyer or the lawyer's law firm practices in a particular area of
the law unless the lawyer or the law firm handles the type of case advertised as a principal part of the
practice. 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 firm.
(18) Paragraph (j) 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.
Required Contact Information
(19) This Rule requires that any communication about a lawyer or
law firm's services include the name of, and contact information for, the lawyer or law firm. Contact
information includes a website address, a telephone number, an email address or a physical office
location.
