Revised Rules of Professional Conduct as to Lawyer Advertising and Solicitation

The Tennessee Supreme Court has adopted revisions to the Tennessee Rules of Professional Conduct effective January 1, 2011.  The complete rules can be found on Tennessee Bar Association’s (TBA) website.  This article will focus on three specific rules important to the integrity of the legal profession and our country’s legal system: Communications Concerning A Lawyer’s Services; Lawyer Advertising; and Solicitation of Clients. 

While tasteless advertising and unsolicited contact will exist, especially since it butts up against the First Amendment, limits on the extent and timing must be in place and stringently enforced to maintain proper respect and civility in the legal system.

The opinions of the general public regarding lawyers, their motives, ethics, etc. are intertwined with the overall integrity of our justice system.  Lawyer jokes aside, how lawyers comport themselves during their interactions with or reaching out to the general public, has an impact on that goes to the heart of justice.  Lawyers that unethically advertise or solicit for cases or pay third-parties (doctors, chiropractors, advertisers, etc.) to get cases do a disservice to society.  The only way to curb these abuses is to report them.  If you are contacted by a lawyer or someone on behalf of a lawyer in violation of the following rules, please report it to the Tennessee Board of Responsibility.

                                                                   CHAPTER 7

                                     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.  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.

 Comment

 [1]       This Rule governs all communications about a lawyer’s services, including advertising permitted by RPC 7.2 and solicitations directed to specific recipients permitted by RPC 7.3.  Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

[2]       Truthful statements that are misleading 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 RPC 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. 

[5]       A lawyer may advertise the fact that a subjective characterization or description has been conferred upon him or her by an organization as long as the organization has made inquiry into the lawyer’s fitness and does not issue or confer such designations indiscriminately or for a price.

                                                       RULE 7.2: ADVERTISING

 (a)       Subject to the requirements of paragraphs (b) through (d) below and RPCs 7.1, 7.3, 7.4, and 7.5, a lawyer may advertise services through written, recorded, or electronic communication, including public media.

 (b)       A copy or recording of each advertisement shall be retained by the lawyer for two years after its last dissemination along with a record of when and where the advertisement appeared.

 (c)       A lawyer shall not give anything of value to a person for recommending or publicizing the lawyer’s services except that a lawyer may pay for the following:

(1)       the reasonable costs of advertisements permitted by this Rule; 

(2)       the usual charges of a registered intermediary organization as permitted by RPC 7.6;

 (3)       a sponsorship fee or a contribution to a charitable or other non‑profit organization in return for which the lawyer will be given publicity as a lawyer; or

(4)       a law practice in accordance with RPC 1.17. 

(d)       Except for communications by registered intermediary organizations, any advertisement shall include the name and office address of at least one lawyer or law firm assuming responsibility for the communication.

 Comment

[1]       This Rule governs general advertising through public media and other communications that are not directed to specifically identified individuals.  The Rule encompasses all possible media through which such communications may be directed to the public.   Communications that are directed to specifically identified recipients are governed by RPC 7.3.

[2]       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.  Further, 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 is significant.  Nevertheless, advertising by lawyers shall not contain false or misleading communications about the lawyer or the lawyer’s services.

[3]       Among other things, 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. 

[4]       Neither this Rule nor RPC 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

 Record of Advertising

 [5]       Paragraph (b) requires that a lawyer retain a copy or recording of any advertisement for two years after its last dissemination along with a record of when and where the advertisement appeared.  If advertisements that are similar in all material respects are published or displayed more than once or distributed to more than one person, the lawyer may comply with this requirement by retaining a single copy of the advertisement for two years after the last of the materially similar advertisements are disseminated.  A lawyer may comply with the requirement of paragraph (b) by complying with guidelines that may be adopted by the Board of Professional Responsibility concerning certain types of advertisements, including websites, e‑mail, or other electronic forms of communication or of changes to such communications.

 Paying Others to Recommend a Lawyer

 [6]       A lawyer is allowed to pay for advertising permitted by this Rule and for the purchase of a law practice in accordance with the provisions of RPC 1.17, but otherwise is not permitted to pay another person for channeling professional work to the lawyer.  This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer’s services.  Thus, 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 not‑for‑profit lawyer referral programs and pay the usual fees charged by such programs.  Paragraph (c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule.

 [7]       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 and website designers.  See RPC 5.3 for the duties of lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing materials for them.

 

                            RULE 7.3: SOLICITATION OF POTENTIAL CLIENTS

 (a)       A lawyer shall not by in-person, live telephone, or real‑time electronic contact solicit professional employment from a potential client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1)       is a lawyer; or 

(2)       has a family, close personal, or prior professional relationship with the lawyer; or 

(3)       has initiated a contact with the lawyer.

 (b)       A lawyer shall not solicit professional employment from a potential client by written, recorded, or electronic communication or by in-person, live telephone, or real‑time electronic contact even when not otherwise prohibited by paragraph (a), if: 

(1)       the potential client has made known to the lawyer a desire not to be solicited by the lawyer; or 

(2)       the solicitation involves coercion, duress, fraud, harassment, intimidation, overreaching, or undue influence; or 

(3)       a significant motive for the solicitation is the lawyer’s pecuniary gain and the communication concerns an action for personal injury, worker’s compensation, wrongful death, or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a member of that person’s family, unless the accident or disaster occurred more than thirty (30) days prior to the mailing or transmission of the communication or the lawyer has a family, close personal, or prior professional relationship with the person solicited. 

(c)       If a significant motive for the solicitation is the lawyer’s pecuniary gain, a lawyer shall not send a written, recorded, or electronic communication soliciting professional employment from a specifically identified recipient who is not a person specified in paragraphs (a)(1) or (a)(2) or (a)(3), unless the communication complies with the following requirements: 

(1)       The words “Advertising Material” appear on the outside of the envelope, if any, in which a communication is sent and at the beginning and ending of any written, recorded or electronic communication. 

(2)       A lawyer shall not state or imply that a communication otherwise permitted by these rules has been approved by the Tennessee Supreme Court or the Board of Professional Responsibility. 

(3)       If a contract for representation is mailed with the communication, the top of each page of the contract shall be marked “SAMPLE” and the words “DO NOT SIGN” shall appear on the client signature line. 

(4)       Written communications shall not be in the form of or include legal pleadings or other formal legal documents. 

(5)       Communications delivered to potential clients shall be sent only by regular U.S. mail and not by registered, certified, or other forms of restricted delivery, or by express delivery or courier. 

(6)       Any communication seeking employment by a specific potential client in a specific matter shall comply with the following additional requirements: 

(i)        The communication shall disclose how the lawyer obtained the information prompting the communication;

 (ii)       The subject matter of the proposed representation shall not be disclosed on the outside of the envelope (or self‑mailing brochure) in which the communication is delivered; and 

(iii)     The first sentence of the communication shall state, “IF YOU HAVE ALREADY HIRED OR RETAINED A LAWYER IN THIS MATTER, PLEASE DISREGARD THIS MESSAGE.” 

(7)       A copy of each written, audio, video, or electronically transmitted communication sent to a specific recipient under this Rule shall be retained by the lawyer for two years after its last dissemination along with a record of when, and to whom, it was sent. 

(d)       Unless the contents thereof include a solicitation of employment, a lawyer need not comply with the requirements of paragraph (c) above when sending announcements of an association or affiliation with another lawyer that complies with the requirements of RPC 7.5, newsletters, brochures, and other similar communications.

 Comment 

[1]       There is a potential for abuse inherent in direct in‑person, live telephone, or real‑time electronic contact by a lawyer with a potential client known to need legal services.  These forms of contact between a lawyer and a potential client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter.  The potential client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self‑interest in the face of the lawyer’s presence and insistence upon being retained immediately.  The situation is fraught with the possibility of undue influence, intimidation, and overreaching.  The restrictions set forth in this Rule, however, do not apply to efforts by a lawyer to get hired as an in‑house counsel by a potential client. 

[2]       This potential for abuse inherent in direct in‑person, live telephone, or real‑time electronic solicitation of potential clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under this Rule offer alternative means of conveying necessary information to potential clients who may be in need of legal services.  Advertising and written and recorded communications which may be mailed or electronically transmitted make it possible for a potential client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the potential client to direct in‑person, live telephone, or real‑time electronic persuasion that may overwhelm the client’s judgment.

 [3]       The use of general advertising and written, recorded, or electronic communications to transmit information from lawyer to potential client, rather than direct in‑person, live telephone, or real‑time electronic contact, will help to assure that the information flows cleanly as well as freely.  The contents of direct in‑person, live telephone, or real‑time electronic conversations between a lawyer and a potential client can be disputed and may not be subject to third‑party scrutiny.  Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

 [4]       There is far less likelihood that a lawyer would engage in abusive practices against an individual with whom the lawyer has a family, close personal, or prior professional relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer’s pecuniary gain.  Nor is there a serious potential for abuse when the person contacted is a lawyer.  Consequently, the general prohibition in RPC 7.3(a) and the requirements of RPC 7.3(c) are not applicable in those situations.  Also, paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal‑service organizations or bona fide political, social, civic, fraternal, employee, or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.

 [5]       But even permitted forms of solicitation can be abused.  Thus, any solicitation that contains information which is false or misleading within the meaning of RPC 7.1, which involves coercion, duress, fraud, harassment, intimidation, overreaching, or undue influence, which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer, or which occurs within thirty (30) days after an accident or disaster involving the individual or a member of the individual’s family, is prohibited by RPC 7.3(b).  Moreover, if after sending a letter or other communication to a client as permitted by RPC 7.2 the lawyer receives no response, any further effort to communicate with the potential client may violate the provisions of RPC 7.3(b)(1).  Communications directed to specifically identified recipients must be identified as advertisements, may need to be marked with other disclaimers, and cannot be formatted or delivered in such a manner as to mislead the recipient about the nature of the communication.

 [6]       This Rule is not intended to 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, insureds, beneficiaries, or other third parties if the lawyer’s purpose is to inform such entities of the lawyer’s willingness to cooperate with the plan in compliance with RPC 7.6.  This form of communication is not directed to a potential client.  Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become potential clients of the lawyer.  Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to, and serve the same purpose as, advertising permitted under RPC 7.2.

 [7]       The requirement in RPC 7.3(c) that certain communications be marked as advertisements and contain other disclaimers do not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors.  Nor do those requirements apply to general announcements by lawyers, including changes in personnel or office location, newsletters, brochures, and other similar communications which do not contain a solicitation of professional employment.

 [8]       Paragraph (c)(6) requires that a lawyer retain a copy of each written, audio, video, or electronically transmitted communication sent to a specific recipient under this Rule for two years after its last dissemination along with a record of the name of the person contacted and the person’s address, telephone number, or telecommunication address to which the communication was sent.  If communications identical in content are sent to two or more persons, the lawyer may comply with this requirement by retaining a single copy of the communication together with a list of the names and addresses of the persons to whom the communications were sent.

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About farmerdreiser

Based in Knoxville, Tennessee, The Law Offices of Tony Farmer and John Dreiser provide comprehensive representation to injured victims throughout eastern Tennessee in personal injury, Social Security disability, and workers' compensation cases.
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