#11720 - Advertising And Solicitation - Ethics

Hypo 1: personal injury lawyer, Clark, was once a division one basketball player, Clark the Shark, he wants to use Clark the Shark to name his law firm.

Hypo 2: a family law lawyer has a wonderful reputation for women’s and LGBT rights. One of her clients is a US soccer team player lesbian. Can the client go on TV to promote the lawyer’s firm? (client testimony)

Many states do not allow client testimonial.

Hypo 3: Hedge fund is considering an investment in a company that makes commercial for law firms. Commercials are the same except for the name of law firms.

Hypo 4: Service helping attorneys identifying clients who has been through life events (car accidents, death, etc.). Customized google ad according to the search. Selling the advertisements to law firms.

This is a form of mass advertising, it is not a form of targeted mail. Google ad is how modern advertisement works.

Bates: lawyer advertising was a form of commercial speech protected by the first amendment, and that advertising by attorneys may not be subjected to blanket suppressions.

Truthful advertising related to lawful activities is entitled to the protection of the First Amendment. The State must assert a substantial interest and the interference with speech must be in proportion to the interest served. Central Hudson Gas. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquires yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Central Hudson Gas.

4 prongs

Trend: commercial speech is more and more protected. Using the substantial interest prong, courts require empirical studies.

MR 7.1 prohibits false or misleading communication about the lawyer or the lawyer’s services

MR 7.2 allows advertisements as long as rules 7.1 and 7.3 are complied with

MR 7.4 allows a lawyer to communicate the fact that the lawyer does or does not practice in particular fields of law, and to state that a lawyer complies with specific guidelines relating to the particular state’s certification process

Lawyers are limited to factual, plain advertisements.

Real time solicitation prohibited: soliciting clients in person, or on the phone, or in real time electronically, is prohibited, with narrow exceptions. MR 7.3(a).

Exceptions are when the person contacted (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer.

The prohibition is sought to prevent undue influence, intimidation, and overreaching.

Even if not prohibited by that, may not do it if: (1) the prospective client has made it known that he does not want to be solicited; or (2) the solicitation involves coercion, duress, or harassment

Goal of prohibition: to prevent undue influence, intimidation, and over-reaching.

Real time solicitation is allowed if it’s ideological (e.g. ACLU). Because the lawyer is looking to advance a social point of view rather than obtain money. A lawyer may also personally solicit someone when the lawyer has no substantial pecuniary motive by doing so.

Lawyers may not pay others to send them legal work, with narrow exceptions that include paying for the costs of advertisement or paying fees to a qualified not-for-profit referral service. MR 7.2(b). A lawyer cannot use “cappers” or “runners”, persons paid by lawyers to solicit business.

Several states have adopted rules that prohibit targeted solicitation of accident victims within some specified length of time following the accident.

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A. Summary of the existing precedents

The first major case law decision on legal advertising is Bates. The US Supreme Court held in Bates that advertisements, if not false, deceptive or misleading, were protected by the First Amendment and state bar rules barring advertisements were unconstitutional.

The Court held in Shapero that truthful and non-deceptive letter soliciting legal business is constitutionally protected commercial speech, subject to restriction only in the service of a substantial governmental interest, and only through means that directly advance that interest.

In In Re RMJ, the Court held that although the States retain the ability to regulate commercial speech, such as lawyer advertising, that is inherently misleading or that has proved to be misleading in practice, the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests.

In Central Hudson Gas, the Court held that commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.

In summary, for commercial speech to come within the First Amendment, it must (1) concern lawful activity and not be misleading. (2) It must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is...