BAR OVERSEER
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!
BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2001. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.
