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Commonwealth of Massachusetts


November 1999

ADVERTISE THIS!

Changes to the Disciplinary Rules
on Advertising and Solicitation

by Constance V. Vecchione

Love it or hate it, twenty-two years after the U.S. Supreme Court decision in Bates v. State Bar of Arizona, advertising by lawyers is a fixed fact of life. Although the chasm that divides the Bar on this issue remains as deep as ever, the public seems largely either accepting or indifferent. The SJC’s recent revisions to the rules on lawyer advertising are therefore as important for what was not changed as for what was. This article will attempt—ever-so-neutrally!—to summarize the current state of lawyer advertising regulations in Massachusetts.
The recent amendments to Mass. R. Prof. C. 7.1 through 7.5 took effect October 1, 1999. Among the changes are amendments (and most particularly the amendments to the comments) clarifying the application of the rules to electronic, computer-accessed, or similar types of communications. The SJC has also ended the ban on in-person or personal solicitation but only of other lawyers, certain family members, former clients, and businesses. And the revisions remove the previous requirement that targeted written communications, such as direct mail, be labeled "advertising".

However, perhaps lost among all the hoopla over the changes described in the previous paragraph (and over other proposals that were not adopted), the sleeper among the amendments is the one that will affect even some lawyers who do not advertise. This is the revision to the comments on Mass. R. Prof. C. 7.5(d) on firm names. Rule 7.5(d) specifies that lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. Amendments to the comment to this rule spell out that, in the absence of a disclaimer of joint responsibility, lawyers sharing space generally are not permitted to designate themselves as a firm or to use joint letterhead if they are not in fact partners. Thus, space-sharers may not call themselves, for example, "Smith and Jones," or "Smith and Jones, A Professional Association". The comments also note that the use of the term "associates" suggests a partnership or sole proprietorship and, again, absent an effective disclaimer cannot be used by a group if the members deny joint or vicarious liability. This topic will be the subject of a full Bar Overseer column in an upcoming issue.

Despite these changes, the one overriding standard in Mass. R. Prof. C. 7.1 through 7.5 is, was, and remains that a lawyer cannot make false or misleading communications about the lawyer or the lawyer’s services. This ban applies to professional announcements, letterhead, telephone directories, business cards and other similar notices, as well as to advertising and solicitation. The prohibition on false or misleading communications also applies to claims of specialization.

Rule 7.1 defines "false or misleading" and the comments go on to say that statements comparing a lawyer’s services with another lawyer’s services or that create unjustified expectations about the results the lawyer can achieve would violate Rule 7.1 if false or misleading. Advertising that is not false or misleading is generally permitted by Mass. R. Prof. C. 7.2. However, a copy of the communication still must be kept for two years; this requirement includes both recordings (such as television or radio ads) and written communications. Mass. R. Prof. C. 7.2(b), 7.3(c). Any public communication is also required by Mass. R. Prof. C. 7.2 to contain the name of the lawyer or law firm responsible for the communication. An advertisement saying only "Bankruptcy, call 555-1111" violates this rule.

In soliciting professional employment under Rule 7.3 from targeted individuals or entities, lawyers again obviously cannot make false or deceptive statements and cannot harass or coerce prospective clients. This is true whether the solicitation is by mail or in person (this latter in the very limited situations permitted by the recent amendments). Lawyers also are still prohibited from soliciting professional employment where the lawyer "knows or reasonably should know that the physical, mental, or emotional state of the prospective client is such that there is substantial potential that the person cannot exercise reasonable judgment in employing a lawyer..." Examples of prohibited conduct include solicitation of persons undergoing active medical treatment for a traumatic injury and or of persons grieving the loss of a family member from attorneys desiring to probate the estate.

As noted, lawyers are permitted to hold themselves out publicly as specialists, if that claim is not false or misleading. However, absent an adequate disclaimer, Mass. R. Prof. C. 7.4 continues to hold lawyers who make such claims to the standard of performance of specialists. The concept of specialization is defined to include any association of the lawyer’s name with a field or area of law, including statements that the lawyer concentrates in, has expertise in, or limits her practice to given areas or fields of law. The rule also specifically includes directory listings by area or field of law as a claim of specialization. Thus, advertising that you practice criminal law or listing yourself in the Yellow Pages under "Lawyers/Criminal Law" is holding yourself out as a specialist.
Mass. R. Prof. C. 7.4 also contains restrictions on holding yourself out as being "certified" in a particular area or field of law and still requires lawyers who advertise that they are certified to name the certifying organization and to state either that it is a named governmental body, or it is a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts.

Any attorney with questions about the changes to the advertising rules is encouraged to call the Office of Bar Counsel during call-in hours at (617)728-8750.

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Constance V. Vecchione is first assistant bar counsel with the Massachusetts Board of Bar Overseers. In the interests of full disclosure, she admits to having been a member of the SJC Committee on Lawyer Advertising that made the recommendations on which the recent rules changes were based!

   



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