ABA Professional Responsibility Client-Lawyer Guidelines ...

ABA Professional Responsibility Client-Lawyer Guidelines Part IV

David Graulich, Esq.

Introduction

¨ This is our fourth course in our series on the ABA model rules of ethical conduct. Today we will be covering Section Seven “Information About Legal Services”

¨ “The Rules simply provide a framework for the ethical practice of law.”

¨ No independent cause-of-action for violating ABA Rules¨ Always check your state and local Bar for ethical rules¨ “Rules of reason” most of them are common sense and practical ¨ Good reference: “Annotated Model Rules of Professional Conduct,”

Eighth Edition (ABA)

Rules Overview – Information about Legal Services

¨ Rule 7.1 Communication Concerning a Lawyer's Services¨ Rule 7.2 Communications Concerning a Lawyer's Services:

Specific Rules¨ Rule 7.3 Solicitation of Clients¨ Rule 7.4 (Deleted)¨ Rule 7.5 (Deleted)¨ Rule 7.6 Political Contributions to Obtain Legal

Engagements or Appointments by Judges

Rule 7.1 Communication Concerning a Lawyer's Services

¨ A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.


¨ Prohibits “false or misleading communication about lawyer or the lawyer’s services”

¨ “A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

¨ This rule applies to ALL communcations made by a lawyers and the lawyer’s agents: email messages, U.S. mail, Web site, business cards advertisements, and phone messages


¨ Arizona case: television advertisements showing lawyers in courtroom arguing before the jury false and misleading; no lawyer in firm ever tried personal injury case to its conclusion. (in re Zang, 741 P.2d 267 (Ariz 1987)


¨ Lawyer’s Website touted expertise in securities law, but lawyer’s only experience was drafting registration statements that had never been filed. In re Richmond’s Case, 872 A.2d 1023 (N.H. 2005


¨ Virginia Ethics Op. 1750 (2008) says that ads using actors portraying lawyers are misleading without clear disclosure that they are dramatizations by actors)


¨ Advertisement stating loan modification company consisting of two lawyers was “nationwide network of attorneys” was false and misleading, In re Weaver, 281 P.3d 502 (Kan. 2012)


¨ Beware of common problem: Advertisement that no fee will be charged is misleading unless it also states client remains liable for costs and expense of litigation)

¨ “No recovery, no fee” is misleading if client must pay costs even if no recovery


¨ Creating Unjustified Expectations¤ “The underlying assumption is that each legal matter is

unique…past performance is not an indication of the outcome of prospective client’s matter”

¤ Bankruptcy lawyer’s letters claiming ability to save prospective clients’ homes “in the vast majority of cases” was misleading. (In re Burton, 442 B.R. 421 (Bankr. W.D.N.C. 2009)


¨ Creating Unjustified Expectations¤Rule was lifted that had BANNED testimonials and

endorsements, so they permitted¤HOWEVER, must not be false or misleading. Presented in such

a way as to not create unjustified expectations.¤ Example of wrong way: “Joe the Lawyer did it for me and he can do

it for you! I won a million dollar verdict!!!”

Rule 7.2 Communications Concerning a Lawyer's Services: Specific Rules

¨ a) A lawyer may communicate information regarding the lawyer’s services through any media.

¨ (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 legal service plan or a not-for-profit or

qualified lawyer referral service;¤ (3) pay for a law practice in accordance with Rule 1.17;


¨ (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:¤ (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:n (i) the reciprocal referral agreement is not exclusive; andn (ii) the client is informed of the existence and nature of the agreement; and


¨ (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:¤ (5) give nominal gifts as an expression of appreciation that are

neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.


¨ (c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:¤ (1) the lawyer has been certified as a specialist by an organization

that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and

¤ (2) the name of the certifying organization is clearly identified in the communication.


¨ (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:¤ (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:n (i) the reciprocal referral agreement is not exclusive; andn (ii) the client is informed of the existence and nature of the agreement; and


¨ (d) 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.


¨ “A lawyer shall not give anything of value to a person for recommending the lawyer’s services….” Bans use of “runners” who obtain clients in hospitals, police stations, courthouses, etc.

¨ Although allows referrals from nonlawyer professionals, lawyer “must not pay anything solely for the referral.”

¨ Example: Real estate brokerage corporation may not market lawyers’ services to public and charge lawyers marketing fee. Ill. Eyjocs P[/ 96-04 (1996)


¨ “Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele…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.”


¨ Permitted to participate in website deals for group coupons or “daily deals” as long as client doesn’t pay for the coupon

¨ Any advertisement must include the NAME and OFFICE ADDRESS of a lawyer or firm responsible for the content.

Rule 7.3 Solicitation of Clients

¨ (a) “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.


¨ (b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:¤ (1) lawyer;¤ (2) person who has a family, close personal, or prior business or

professional relationship with the lawyer or law firm; or¤ (3) person who routinely uses for business purposes the type of

legal services offered by the lawyer.


¨ (c) A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if:¤ (1) the target of the solicitation has made known to the lawyer a

desire not to be solicited by the lawyer; or¤ (2) the solicitation involves coercion, duress or harassment.


¨ (d) This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.

¨ (e) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.


¨ Bans most types of direct solicitation – direct and specific to an individual. “A targeted communication directed to a specific person.”

¨ Ban covers written, recorded or electronic communication, in-person, telephone, electronic


¨ All letters soliciting employment should include the words “ADVERTISING MATERIAL”

¨ Okay to contact a FORMER client¨ General prohibition against “LIVE solicitation,” meaning in-

person, internet chat rooms.


¨ In re Crouppen, 731 S.W.2d 247 (Mo. 1987) at hospital bedside, lawyer solicited individual who had been injured at work and about to undergo surgery; lawyer then sent a card and balloons.


¨ PUBLIC INTEREST EXCEPTION: rules are eased for a lawyer working for a nonprofit, public interest organization for her in-person and direct-mail solicitation U.S. Supreme Court Case Ohralik v. Ohio State Bar Association 436 U.S. 447 (1978) Noting the “political or ideological” character of the representation.


¨ Rules do NOT apply if solicitation is made to ANOTHER LAWYER

Officially Deleted but Still Interesting Rules

¨ Deleted Rules¤ Rule 7.4: Communication of Fields of Practice & Specialization¤ Rule 7.5: Firm Names and Letter Heads

¨ Not formally part of the ABA official ethical guidelines anymore but none the less still informative / beneficial to discuss

Rule 7.4: Communication of Fields of Practice & Specialization

¨ Allows lawyers to communicate that they are “certified as specialists in particular fields of law.

¨ Can say “Patent Attorney” if admitted to US. Patent office¨ Can also say “specialist” if true and not misleading¨ Any statement that creates a false impression about

certification or expertise remains prohibited.

Rule 7.4: Communication of Fields of Practice & Specialization

¨ For example, “International lawyers” could be misleading unless you can demonstrate that you are an expert in international law.

¨ In Colorado, the state bar does not certify specialists in any field; must have this disclaimer with any claim of specialization

Rule 7.5: Firm Names and Letter Heads

¨ A law firm with offices in more than jurisdiction may use the same name in each jurisdiction…but must indicate which lawyers are NOT licensed to practice where the office is located.

¨ The name of a lawyer holding a public office shall not be used in the name of a law firm during any “substantial period” in which the lawyer is not actively and regularly practicing with the firm.” Judges are public office.

Rule 7.5: Firm Names and Letter Heads

¨ It is misleading for a sole practitioner to state or imply that he or she is practicing with other lawyers. For example, wrong to use “and Associates” in letterhead. Okay to use name “firm.”

¨ With Internet address, cannot use a suffix like .us which implies it is a government agency

Rule 7.6 Political Contributions to Obtain Legal Engagements or Appointments by Judges

¨ Known as the “pay-for-play” rule – Banned from giving money to a political campaign in order to obtain a government appointment or appoinmtnet by a judgeGiving money so that recipient will “steer” business their way.

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