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Archive for the ‘Advertising Rules’ Category
Thursday, April 16th, 2009
Today I spoke with a Portland, Oregon law firm that was who questioned me about whether or not it was ethical for a law firm to participate in online attorney directories. After quickly reviewing the Oregon State Bar Ethics rules posted on the state BAR website, I was amazed to see how little restrictions are placed on lawyer advertising in that state.
In fact, as long as you are not paying for referrals based on actually retaining the referral you are pretty much good to go. So Oregon attorneys can list on attorney directories as long as they are paying for the exposure.
Tags: or lawyer advertising rules, oregon lawyer advertising ethics, oregon lawyer restrictions on advertising
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Friday, April 3rd, 2009
INFORMATION ABOUT LEGAL SERVICES
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 or any prospective client’s need for legal services. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) is likely to create a reasonable but unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(c) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.
(SCO 1123 effective July 15, 1993; rescinded and repromulgated by SCO 1680 effective April 15, 2009)
ALASKA COMMENT
The Committee revised Model Rule 7.1 to address the situation in which a lawyer might provide misleading information with regard to a potential client’s needs for legal services from a particular lawyer.
COMMENT
[1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.
[2] Truthful statements that aremisleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered 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.
[3] An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.
[4] See also Rule 8.4(e) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.
Rule 7.2. Advertising.
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded, or electronic communication, including public media.
(b) A lawyer shall not give 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 legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;
(3) pay for a law practice in accordance with Rule 1.17; and
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.
(SCO 1123 effective July 15, 1993; rescinded and repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
[1] To assist the public in 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 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 advertising, against advertising going beyond specified facts about a lawyer, or against “undignified” advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television 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. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But see Rule 7.3(a) for the prohibition against the solicitation of a prospective client through a real-time electronic exchange that is not initiated by the prospective client.
[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.
Tags: ak lawyer advertising rules about websites, alaska advertising rules for lawyers, Alaska Lawyer Advertising Rule 7.1 and 7.2 - Ethics Rul
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Thursday, April 2nd, 2009
Rule 7.2 Advertising
A lawyer who advertises concerning legal services shall comply with the following:
(a) Subject to the requirements of Rule 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor displays, radio, television, or written communication not involving solicitation as defined in Rule 7.3.
(b) A true copy or recording of any such advertisement shall be delivered or mailed to the office of the general counsel of the Alabama State Bar at its then current headquarters within three (3) days after the date on which any such advertisement is first disseminated; the contemplated duration thereof and the identity of the publisher or broadcaster of such advertisement, either within the advertisement or by separate communication accompanying said advertisement, shall be stated. Also, a copy or recording of any such advertisement shall be kept by the lawyer responsible for its content, as provided hereinafter by Rule 7.2(d), for six (6) years after its last dissemination.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of any advertisement or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service.
(d) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.
(e) No communication concerning a lawyer’s services shall be published or broadcast, unless it contains the following language, which shall be clearly legible or audible, as the case may be: “No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.”
(f) If fees are stated in the advertisement, the lawyer or law firm advertising must perform the advertised services at the advertised fee, and the failure of the lawyer and/or law firm advertising to perform an advertised service at the advertised fee shall be prima facie evidence of misleading advertising and deceptive practices. The lawyer or law firm advertising shall be bound to perform the advertised services for the advertised fee and expenses for a period of not less than sixty (60) days following the date of the last publication or broadcast.
Tags: al lawyer advertising rules, alabama lawyer advertising ethics, Alabama Lawyer Advertising Rule 7.2
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Wednesday, April 1st, 2009
Rule 1-400. Advertising and Solicitation
(A) For purposes of this rule, “communication” means any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client, including but not limited to the following:
(1) Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or
2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or
(3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof; or
(4) Any unsolicited correspondence from a member or law firm directed to any person or entity.
(B) For purposes of this rule, a “solicitation” means any communication:
(1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and
(2) Which is;
(a) delivered in person or by telephone, or
(b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication.
(C) A solicitation shall not be made by or on behalf of a member or law firm to a prospective client with whom the member or law firm has no family or prior professional relationship, unless the solicitation is protected from abridgment by the Constitution of the United States or by the Constitution of the State of California. A solicitation to a former or present client in the discharge of a member’s or law firm’s professional duties is not prohibited.
(D) A communication or a solicitation (as defined herein) shall not:
(1) Contain any untrue statement; or
(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or
(3) Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public; or
(4) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be; or
(5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.
(6) State that a member is a “certified specialist” unless the member holds a current certificate as a specialist issued by the Board of Legal Specialization, or any other entity accredited by the State Bar to designate specialists pursuant to standards adopted by the Board of Governors, and states the complete name of the entity which granted certification.
(E) The Board of Governors of the State Bar shall formulate and adopt standards as to communications which will be presumed to violate this rule 1-400. The standards shall only be used as presumptions affecting the burden of proof in disciplinary proceedings involving alleged violations of these rules. “presumption affecting the burden of proof” means that presumption defined in Evidence Code sections 605 and 606. Such standards formulated and adopted by the Board, as from time to time amended, shall be effective and binding on all members.
(F) A member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media. Upon written request, the member shall make any such copy or recording available to the State Bar, and, if requested, shall provide to the State Bar evidence to support any factual or objective claim contained in the communication.
(Former rule 1-400 (D)(6) repealed by order of the Supreme Court effective November 30, 1992. New rule 1-400 (D)(6) added by order of the Supreme Court effective June 1, 1997.)
Standards:
Pursuant to rule 1-400(E) the Board of Governors of the State Bar has adopted the following standards, effective May 27, 1989, unless noted otherwise, as forms of “communication” defined in rule 1-400(A) which are presumed to be in violation of rule 1-400:
(1) A “communication” which contains guarantees, warranties, or predictions regarding the result of the representation.
(2) A “communication” which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.”
(3) A “communication” which is delivered to a potential client whom the member knows or should reasonably know is in such a physical, emotional, or mental state that he or she would not be expected to exercise reasonable judgment as to the retention of counsel.
(4) A “communication” which is transmitted at the scene of an accident or at or en route to a hospital, emergency care center, or other health care facility.
(5) A “communication,” except professional announcements, seeking professional employment for pecuniary gain, which is transmitted by mail or equivalent means which does not bear the word “Advertisement,” “Newsletter” or words of similar import in 12 point print on the first page. If such communication, including firm brochures, newsletters, recent legal development advisories, and similar materials, is transmitted in an envelope, the envelope shall bear the word “Advertisement,” “Newsletter” or words of similar import on the outside thereof.
(6) A “communication” in the form of a firm name, trade name, fictitious name, or other professional designation which states or implies a relationship between any member in private practice and a government agency or instrumentality or a public or non-profit legal services organization.
(7) A “communication” in the form of a firm name, trade name, fictitious name, or other professional designation which states or implies that a member has a relationship to any other lawyer or a law firm as a partner or associate, or officer or shareholder pursuant to Business and professions Code sections 6160-6172 unless such relationship in fact exists.
(8) A “communication” which states or implies that a member or law firm is “of counsel” to another lawyer or a law firm unless the former has a relationship with the latter (other than as a partner or associate, or officer or shareholder pursuant to Business and professions Code sections 6160-6172) which is close, personal, continuous, and regular.
(9) A “communication” in the form of a firm name, trade name, fictitious name, or other professional designation used by a member or law firm in private practice which differs materially from any other such designation used by such member or law firm at the same time in the same community.
(10) A “communication” which implies that the member or law firm is participating in a lawyer referral service which has been certified by the State Bar of California or as having satisfied the Minimum Standards for Lawyer Referral Services in California, when that is not the case.
(11) A “communication” which states or implies that a member is a “certified specialist” unless such communication also states the complete name of the entity which granted the certification as a specialist. (Repealed by order of the Supreme Court, effective June 1, 1997. See rule 1-400(D)(6).)
(12) A “communication,” except professional announcements, in the form of an advertisement primarily directed to seeking professional employment primarily for pecuniary gain transmitted to the general public or any substantial portion thereof by mail or equivalent means or by means of television, radio, newspaper, magazine or other form of commercial mass media which does not state the name of the member responsible for the communication. When the communication is made on behalf of a law firm, the communication shall state the name of at least one member responsible for it.
(13) A “communication” which contains a dramatization unless such communication contains a disclaimer which states “this is a dramatization” or words of similar import.
(14) A “communication” which states or implies “no fee without recovery” unless such communication also expressly discloses whether or not the client will be liable for costs.
(15) A “communication” which states or implies that a member is able to provide legal services in a language other than English unless the member can actually provide legal services in such language or the communication also states in the language of the communication (a) the employment title of the person who speaks such language and (b) that the person is not a member of the State Bar of California, if that is the case.
(16) An unsolicited “communication” transmitted to the general public or any substantial portion thereof primarily directed to seeking professional employment primarily for pecuniary gain which sets forth a specific fee or range of fees for a particular service where, in fact, the member charges a greater fee than advertised in such communication within a period of 90 days following dissemination of such communication, unless such communication expressly specifies a shorter period of time regarding the advertised fee. Where the communication is published in the classified or “yellow pages” section of telephone, business or legal directories or in other media not published more frequently than once a year, the member shall conform to the advertised fee for a period of one year from initial publication, unless such communication expressly specifies a shorter period of time regarding the advertised fee.
(Amended by order of Supreme Court, operative September 14, 1992. Standard (5) amended by the Board of Governors, effective May 11, 1994. Standards (12) – (16) added by the Board of Governors, effective May 11, 1994.)
Tags: ca lawyer advertising rules, ca lawyer ethics, california lawyer advertising rules, Rule 1-400
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Saturday, September 27th, 2008
One of Louisiana’s largest lawyer advertisers, New Orleans attorney Morris Bart joined forces with Lafayette attorney William Gee and special interest group Public Citizen Inc to sue the Louisiana Attorney Disciplinary Board in response to the State’s Supreme Court new rules to restrict attorney advertising in the State of Louisiana.
Public Citizen Inc., is a consumer rights advocacy organization that feels the right of consumers right to choose and be informed are being impeded. The petition against the board was filed last Tuesday in order to reverse the decision tightening the lawyer advertising rules.
The lawyer advertising rules are to take effect this December but the rules were ok’d back in July of this year. The attorney advertising rule changes were designed to clean up the content and forms of lawyer advertising.
One of the major rule changes includes the forbidding of “promising results.” All forms of advertising will also have to be submitted to the bar association committee for review. This review of the lawyer advertisements is meant to clean up some of the offense legal ads to protect the integrity of the legal practice. Other issues include using actors, testimonials and re-enactments.
The lawsuit claims that the new lawyer advertising bar rules will violate the First and Fourteenth Amendments to the U.S. Constitution.
The other issues with the lawyer advertising rules is that it may go further. There is talk about not allowing law firms to use logos or slogans. Morris Bart, a personal injury lawyer in New Orleans, has built his law firm’s brand by using slogans such as, “We can get you paid. One click, That’s it” on his website.
Well, if there is a will there is a way.
James
Tags: louisiana bar, louisiana lawyer advertising rules, morris bart, personal injury lawyer new orleans, william gee
Posted in Advertising Rules | Comments Off on Louisiana New Advertising Rules Contested, Lawsuit Filed
Sunday, September 14th, 2008
Back in August, New Jersey high court has order all parties involved in the lawyer advertising dispute until September 15th of this year to file their responses to the special master’s report. After that the court will then hear arguments before making a ruling that could effect lawyers from using the “SuperLawyers” logo and claims on marketing and advertising materials.
“Super Lawyers” is a legal publication and website that has expanded their business model through the 50 Untied States. The issue that is being challenge and could potentially effect ethics rulings in other states, is the idea that a “Super Lawyer” or “SuperLawyer” rating implies that a lawyer with said designation would be superior amongst other New Jersey lawyers.
In previous challenges, the court said that a lawyer may use the “Super Lawyer” designation along with other rankings or ratings such as the Martindale Hubble Peer Review Ratings. The pro-SuperLawyers side believes that the rating services provide the consumer with more information to make better choices about hiring a lawyer.
My opinion is that being a “Super Lawyer” is “super” misleading to consumers. The nomination process is flawed and you have to pay money to use the SuperLawyer designation. In my opinion, that alone loses it’s credibility.
Should an attorney decide to tout the “Super Lawyers” rating or award, they should do the right thing by explaining that they do pay a fee to belong to the organization.
James
Tags: lawyer ratings, martindale hubbell, super lawyers, superlawyers
Posted in Advertising Rules | Comments Off on SuperLawyers – New Jersey High Court Deadline Has Arrived (Super Lawyers)
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