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Commonwealth of Massachusetts

March 2005

Pick Me! Pick Me! Pick Me! (An Advertising and Solicitation Update)

Sarah A. Chambers

Lawyers in private practice are simultaneously professionals serving their clients’ needs and businesspeople trying to make a living. Attracting clients, often through reputation but also through advertising and solicitation, may be critical to a successful business. The Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), eliminated a blanket ban on lawyer advertising and ruled that the first amendment protected truthful advertising. However, the Court held that false, deceptive, or misleading advertising would be subject to regulation. It is therefore critical for lawyers to understand the applicable Massachusetts Rules of Professional Conduct. This article will review the basic rules governing advertising and solicitation, discuss the interface between these rules and the Internet, and address some frequently asked questions.

Mass. R. Prof. C. 7.1 to 7.5 govern the dissemination of information about legal services. The mantra running through all of these rules is that a communication, whether in the form of an advertisement, a solicitation, office letterhead, or other media, cannot be false or misleading. A false or misleading communication, as defined by Mass. R. Prof. C. 7.1, includes material misrepresentations as well as omissions of material facts.

Mass. R. Prof. C. 7.2 is the advertising rule. It provides that lawyers may advertise their services through the public media or through written, electronic, computer-accessed or similar types of communication not involving solicitation prohibited in Mass. R. Prof. C. 7.3. It requires that a copy of the communication be retained for two years after its last dissemination, along with a record of where and when it was used. Any such communication must include the name of the lawyer, group of lawyers, or firm responsible for it.

The rule includes a list of examples of public media through which a lawyer may advertise, such as public directories, newspapers, radio, or television, and includes forms of public media that are computer-accessed. For firms with members or associates who are admitted in other jurisdictions and which advertise or solicit outside of Massachusetts, their communications must comply with the ethics rules in the other states, which may vary substantially from ours. Unlike the current rule in Massachusetts, some states require labeling of an advertisement as such or advance submission of an advertisement for review. Recordkeeping requirements also vary; some states require that advertisements be maintained for up to five years. Bear in mind that when an advertisement on the Internet, television, or radio reaches an audience in another state that state might try to assert jurisdiction to impose discipline, if its rules have been violated.

When applying the advertising and solicitation rules to computer-accessed or other similar types of communications, Comment [3A] to Mass. R. Prof. C. 7.2 suggests analogizing the computer-accessed communication to the hard-copy form. For example, a website or homepage would be analogous to a brochure or a placard on a bus. It does not target a specific recipient and viewers actively perform a search to find and view the website. It would therefore generally be considered an advertisement subject to Mass. R. Prof. C. 7.2 However, because the Internet has no geographic boundaries, a lawyer who posts an advertisement on the Internet in the form of a website or homepage is disseminating this information to the world. To avoid misleading viewers from jurisdictions other than that of the posting lawyer, it is preferable to include the office address and the bar admissions of all the firm members.

In general, lawyers can pay for advertising, but cannot pay for referrals unless the payments fall within one of the exceptions set forth in Mass. R. Prof. C. 7.2(c). These include paying for the purchase of a law practice and paying a referral fee to another lawyer as permitted by Mass. R. Prof. C. 1.5(e). Another exception to Rule 7.2(c) permits a lawyer to participate in a not-for-profit lawyer referral program and pay the usual fees charged by the program, such as the Massachusetts Bar Association’s Lawyers Referral Service. Lawyers may also, and in accordance with Mass. R. Prof. C. 5.4(c)(4), share a statutory award or court-approved settlement with a qualified legal assistance organization as defined by Mass. R. Prof. C. 9.1(i). See also Mass. R. Prof. C. 7.3(f), which prohibits paying another to solicit employment from a prospective client, with exceptions similar to some of those set forth in Rule 7.2(c).

Bar counsel frequently receives inquiries from attorneys interested in participating in Internet referral services or business referral clubs. Some of these services effectively constitute paying for advertising, which is permitted. Otherwise, unless the referring entity is a not-for-profit lawyer referral service or a qualified legal service organization, lawyers cannot pay or give anything of value to receive referrals from such groups. This prohibition would include such quid pro quo as giving referrals to members of the club in exchange for receiving referrals from members of the club, since doing so would be to give something of value to receive a referral.

Mass. R. Prof. C. 7.3 governs solicitation of professional employment, as opposed to advertising. Rule 7.3(b) sets forth two categories of prospective clients whom a lawyer may never solicit for a fee: a person who because of their physical, mental, or emotional state is potentially unable to exercise reasonable judgment in employing a lawyer and a person who has made known a desire not to be solicited. For a detailed discussion of whether a contact is permissible under Mass. R. Prof. C. 7.3(b)(1) see Comment [2] of Mass. R. Prof. C. 7.3 and N. Kaufman, “Rules of Engagement: Limitations on lawyers’ solicitation of clients”, (November, 2001).

Assuming the prospective client is not off-limits, the parameters of permitted solicitation of professional employment are set forth in Mass. R. Prof. C. 7.3(c), (d) and (e). Under Mass. R. Prof. C. 7.3(c), lawyers are permitted to solicit professional employment for a fee from a prospective client known to be in need of legal services only by written communication, including an audio or videotape or other electronic communication such as an e-mail, and only if the lawyer retains a copy of the communication for two years.

Mass. R. Prof. C. 7.3(d) imposes an absolute ban on solicitation of employment for a fee by in-person or personal communication, thus prohibiting solicitation that is direct or interactive such as a telephone call. There are very limited exceptions to this prohibition contained in Mass. R. Prof. C. 7.3(e). Generally, a lawyer is permitted to communicate a solicitation of professional employment for a fee to members of the bar, members of the lawyer’s family, former clients, and organizations and persons engaged in trade.

The rapid growth of the Internet and the use made of it by lawyers and consumers of legal services raises interesting ethical questions as to the application of the Rules of Professional Conduct to e-mail, chat rooms, forums, bulletin boards, listservs, and newsgroups.

Mass. R. Prof. C. 7.4 is the specialization rule and permits lawyers to hold themselves out publicly as specialists providing the claim is not false or misleading. Such holding out includes statements that a lawyer concentrates in, specializes in, is certified in, has expertise in, or limits practice to a particular field or area of law. It would also include directory listings, computer-accessed or otherwise, and any association of the lawyer’s name with a particular field. New lawyers, or lawyers new to or inexperienced in a particular area of practice, cannot advertise or list themselves as having any association with a particular field of law absent adequate disclaimers that they are not specialists.

Lawyers who hold themselves out to be certified in a particular area are required to name the certifying organization and state that it is a private organization, whose standards are not regulated by the Commonwealth of Massachusetts, or that it is a named governmental body. Mass. R. Prof. C. 7.4(c) provides that lawyers who do hold themselves out to be specialists shall be held to the standard of performance of a specialist in that particular field. The rule provides that lawyers who wish to advertise for particular cases without being held to the standard of a specialist can advertise that they “welcome” or “handle” cases in that area of practice “but are not specialists in” that area of the law.

Finally, Mass. R. Prof. C. 7.5 governs firm names and letterheads. Bar Counsel frequently receives inquiries about the use of the “of counsel” designation in connection with a firm name. For a discussion of this issue see N. Kaufman, “The Of Counsel Relationship”, (October 2000). Another area about which Bar Counsel receives inquiries is space-sharers who practice under a firm name. Note that Mass. R. Prof. C. 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. See Comment [2] of Mass. R. Prof. C. 7.5(d) and D. C. Crane and J. W. Marshall, “Space-Sharers, Beware!”, (January 2000). A law firm with offices in more than one jurisdiction is permitted to use the same firm name, letterhead, or other professional designation in each jurisdiction, providing that the jurisdictional limitations of the firm’s lawyers not licensed in each jurisdiction be disclosed.

Although these rules may seem complicated, the basics are very simple and consistent: advertisements and solicitations of employment must not be false or misleading or involve coercion, and in-person or direct solicitation is not allowed unless it falls within one of the exceptions. Lawyers with questions on these issues are encouraged to call bar counsel’s helpline, 617-728-8750, on Monday, Wednesday and Friday afternoons between the hours of 2:00 and 4:00 p.m.

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