Advertising and Communications About a Lawyer's Services: Rules 7.1 through 7.7
In today's often competitive legal climate, rules regarding advertising and statements about a lawyer's services are of keen interest to much of the bar. It is not surprising that there are some significant changes to these rules in the amendments effective January 1, 2005.
Rule 7.1: Communications About a Lawyer's Services:
Amended mainly by subtraction. The only principle preserved is that communications which are false or misleading are prohibited. A false or misleading statement is defined as one which "contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." For instance, advertising a rate for handling of a specific kind of case may be misleading if the advertised rate does not include necessary costs or expenses which must be paid in addition to the lawyer's fee.
The amended Rule 7.1 omits specific prohibitions of the prior rule, including those statements which are "likely to create an unjustified expectation about results the lawyer can achieve, those which compare the lawyer's services to others in ways which cannot be substantiated, and those which make subjective claims which cannot be objectively verified. However, Comments 2 and 3 of Rule 7.1 leave open the possibility that such statements may still be considered "false or misleading" under the general prohibition.
Rule 7.2: Advertising
Not significantly changed. The prior language listing several forms of media in which lawyers may advertise is dropped, and there is a general acknowledgement that advertising may take place through "written, recorded or electronic communications, including public media." The comments indicate that the intent of the drafters was to recognize many new forms in which advertising can take place, including the Internet.
Comment 6 elaborates on the distinction between paying someone to recommend the lawyer's services, which is prohibited by Rule 7.2(c), and paying the costs of advertising, as well as paying publicists, website designers, and others who assist the lawyer in communicating the lawyer's messages to the public.
Rule 7.3: Solicitation (direct contacts with a prospective client for purposes of pecuniary gain)
Amended only to add a series of exceptions consistent with the ABA Model Rules. Real-time solicitation is not prohibited if the person contacted:
- is a lawyer;
- has a family or close personal relationship with the lawyer; or
- had a prior professional relationship with the lawyer.
It should be noted that these restrictions apply only to real-time communications: in-person, by live telephone, or, in a new addition to the list, by real-time electronic means (e.g., in chat rooms or by instant messenger).
Written solicitation is covered by Rule 7.3(b), and is permissible unless one of three factors is present:
- the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;
- the person has made known to the lawyer a desire not to receive communications from the lawyer; or
- the communication involves coercion, duress, or harassment.
The rationale for the distinction between real-time and written communications is the concern that real-time communications pose a "potential for abuse" in a lawyer's skill at persuasion, while the written communication allows the client a better opportunity to objectively evaluate the communications and seek independent advice and other options. The drafters believe this potential for abuse is not present in contacts with other lawyers, who can objectively evaluate the communications, or with family or close personal relations, or prior clients, where a channel of communication already exists.
Comment 2 distinguishes autodialing of recorded messages from "live telephone" solicitation.
Comment 6 notes that this prohibition does not prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, as such groups are not themselves, "prospective clients."
Rule 7.4: Fields of Practice and Specialization
No changes, except that "Specialization" is added to the title of the Rule.
Rule 7.5: Firm Names and Letterheads
Minor wording changes; no substantive changes. A statement that "A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation" is added to Comment 1. Comment 1 also makes it clear that it is misleading to use the name of a nonlawyer in a firm name. Comment 2 expands the prohibition on linking together the names of lawyers sharing space who are not in fact associated in a firm.
Rule 7.6: Advertising a Certification
This rule, which forbade a lawyer to advertise a certification not approved by the Supreme Court of Pennsylvania, is repealed in its entirety. It should be noted, however, that Rule 7.4(a)(4) still provides, "a lawyer may communicate that the lawyer is certified in a field of practice only when that communication is not false or misleading and that certification is granted by the Supreme Court of Pennsylvania."
Rule 7.7: Lawyer Referral Service
No changes, except that a cautionary note is added to the Comment that "A lawyer may pay the usual charges of a lawyer referral service. A lawyer may not, however, share legal fees with a non-lawyer. See Rule 5.4(a)."
Tip of the Month
So it's Friday afternoon, and your client calls with an emergency that absolutely has to be dealt with right away. You attempt to call opposing counsel, and are told that opposing counsel has left for the weekend and is not available. Surely you are now justified in contacting the opposing party directly, right? After all, you tried to go through opposing counsel.
WRONG! Rule 4.2 prohibits you from contacting a represented party about the subject matter of the representation, period. There is no exception for opposing counsel's unavailability. The only circumstances under which you may contact a represented party are with counsel's consent, or if authorized to do so by law or by a court order. Also, you are not permitted to discuss the case with an opposing party who contacts you, if you know that party has counsel.
Your client is permitted to contact the other party, and you are permitted to advise the client about those communications. You may be able to seek ex parte relief from a court under the circumstances, or to obtain an order allowing the communications. But you may not take matters into your own hands just because opposing counsel is unavailable.