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Commonwealth of Massachusetts


RULE 3:07 
MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT

INFORMATION ABOUT LEGAL SERVICES
 

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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 Rule 7.2. Whatever means are used to make known a lawyer's services, statements about them should be truthful. Statements that compare a lawyers services with another lawyer’s services and statements that create unjustified expectations about the results the lawyer can achieve would violate Rule 7.1 if they constitute "false or misleading" communications under the Rule.

Corresponding ABA Model Rule. Identical to Model Rule 7.1.

Corresponding Former Massachusetts Rule. DR 2-101(A).

 

RULE 7.2 ADVERTISING

(a) Subject to the requirements of Rule 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory including an electronic or computer-accessed directory, newspaper or other periodical, outdoor advertising, radio or television, or through written communication not involving solicitation prohibited in Rule 7.3.

(b) A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used.

(c) A lawyer shall not give 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 not-for-profit lawyer referral service or legal service organization;

(3) pay for a law practice in accordance with Rule 1.17; and

(4) pay referral fees permitted by Rule 1.5(e);

(5) share a statutory fee award or court-approved settlement in lieu thereof with a qualified legal assistance organization in accordance with Rule 5.4(a)(4).

(d) Any communication made pursuant to this rule shall include the name of the lawyer, group of lawyers, or firm responsible for its content.

Comment

[1] 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.

[2] [Reserved]

[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Television and other electronic media, including computer-accessed communications, are now among the most powerful media for getting information to the public. Prohibiting such advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant.

[3A] The advertising and solicitation rules can generally be applied to computer-accessed or other similar types of communications by analogizing the communication to its hard-copy form. Thus, because it is not a communication directed to a specific recipient, a web site or home page would generally be considered advertising subject to this rule, rather than solicitation subject to Rule 7.3. For example, when a targeted e-mail solicitation of a person known to be in need of legal services contains a hot-link to a home page, the e-mail message is subject to Rule 7.3, but the home page itself need not be because the recipient must make an affirmative decision to go to the sender’s home page. Depending upon the circumstances, posting of comments to a newsgroup, bulletin board or chat group may constitute targeted or direct contact with prospective clients known to be in need of legal services and may therefore be subject to Rule 7.3. Depending upon the topic or purpose of the newsgroup, bulletin board, or chat group, the posting might also constitute an association of lawyer or law firms name with a particular service, field, or area of law amounting to a claim of specialization under Rule 7.4 and would therefore be subject to the restrictions of that rule. In addition, if the lawyer or law firm used an interactive forum such as a chat group to solicit for a fee professional employment that the prospective client has not requested, this conduct may constitute prohibited personal solicitation under Rule 7.3(d)

[4] Neither this Rule nor Rule 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 record of the content and use of advertising be kept in order to facilitate enforcement of this Rule. It does not require that advertising be subject to review prior to dissemination. Such a requirement would be burdensome and expensive relative to its possible benefits, and may be of doubtful constitutionality.

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 Rule 1.17, but otherwise is not permitted to pay another person for channeling professional work. However, 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. Paragraph (c) also excepts from its prohibition the referral fees permitted by Rule 1.5(e).

Corresponding ABA Model Rule. Substantially similar to Model Rule 7.2, except minor differences in (a) and (b), subclauses (4) and (5) were added to paragraph (c), and paragraph (d) was modified.

Corresponding Former Massachusetts Rule. DR 2-101(B); see DR 2-103.

Last Updated 2/28/2000


RULE 7.3 SOLICITATION OF PROFESSIONAL EMPLOYMENT

(a) In soliciting professional employment, a lawyer shall not coerce or harass a prospective client and shall not make a false or misleading communication.

(b) A lawyer shall not solicit professional employment if:

(1) the lawyer knows or reasonably should know that the physical, mental, or emotional state of the prospective client is such that there is a substantial potential that the person cannot exercise reasonable judgment in employing a lawyer, provided, however, that this prohibition shall not apply to solicitation not for a fee; or

(2) the prospective client has made known to the lawyer a desire not to be solicited.

(c) Except as provided in paragraph (e), a lawyer shall not solicit professional employment for a fee from a prospective client known to be in need of legal services in a particular matter by written communication, including audio or video cassette or other electronic communication, unless the lawyer retains a copy of such communication for two years.

(d) Except as provided in paragraph (e), a lawyer shall not solicit professional employment for a fee from a prospective client in person or by personal communication by telephone, electronic device, or otherwise.

(e) The following communications shall be exempt from the provisions of paragraphs (c) and (d) above:

(1) communications to members of the bar of any state or jurisdiction;

(2) communications to individuals who are

(A) the grandparents of the lawyer or the lawyer’s spouse,

(B) descendants of the grandparents of the lawyer or the lawyer’s spouse, or

(C) the spouse of any of the foregoing persons;

(3) communications to prospective clients with whom the lawyer had a prior attorney-client relationship; and

(4) communications with (i) organizations, including non-profit and government entities, in connection with the activities of such organizations, and (ii) with persons engaged in trade or commerce as defined in G.L. c. 93A, §1(b), in connection with such persons’ trade or commerce.

(f) A lawyer shall not give anything of value to any person or organization to solicit professional employment for the lawyer from a prospective client. However, this rule does not prohibit a lawyer or a partner or associate or any other lawyer affiliated with the lawyer or the lawyer's firm from requesting referrals from a lawyer referral service operated, sponsored, or approved by a bar association or from cooperating with any other qualified legal assistance organization. Such requests for referrals or cooperation may include a sharing of fee awards as provided in Rule 5.4(a)(4).

Comment

[1] This rule applies to solicitation, the obtaining of business through letter, e-mail, telephone, in-person or other communications directed to particular prospective clients. It does not apply to non-targeted advertising, the obtaining of business through communications circulated more generally and more indirectly than that, such as through web sites, newspapers or placards in mass transit vehicles. This rule allows lawyers to conduct some form of solicitation of employment from all prospective clients, except in a small number of very special circumstances, and hence permits prospective clients to receive information about legal services that may be useful to them. At the same time it recognizes the possibility of undue influence, intimidation, and overreaching presented by personal solicitation in the circumstances prohibited by this rule and seeks to limit them by regulating the form and manner of solicitation by rules that reach no further than the danger that is perceived.

[2] Paragraphs (a) and (b) apply whenever a lawyer is engaging in solicitation that is not prohibited under another paragraph of this Rule. In determining whether a contact is permissible under Rule 7.3(b)(1), it is relevant to consider the times and circumstances under which the contact is initiated. For example, a person undergoing active medical treatment for traumatic injury is unlikely to be in an emotional state in which reasonable judgment about employing a lawyer can be exercised. The reference to the "physical, mental, or emotional state of the prospective client" is intended to be all-inclusive of the condition of such person and includes a prospective client who for any reason lack sufficient sophistication to be able to select a lawyer. A proviso in subparagraph (b)(1) makes clear that it is not intended to reduce the ability possessed by nonprofit organizations to contact the elderly and the mentally disturbed or disabled. Abuse of the right to solicit such persons by non-profit organizations would probably constitute a violation of paragraph (a) of the rule or Rule 8.4(c), (d), or (h). The references in paragraph (b)(1), (c), and (d) of the rule to solicitation "for a fee" are intended to carry forward the exemption in DR 2-103 for non-profit organizations. Where such an organization is involved, the fact that there may be a statutory entitlement to a fee is not intended by itself to bring the solicitation within the scope of the rule. There is no blanket exemption from regulation for all solicitation that is not done "for a fee." Non-profit organizations are subject to the general prohibitions of paragraphs (a) and (e) and subparagraph (b)(2).

[3] Paragraph (c) imposes minimum regulations on solicitation by written and other communication that is not interactive. Paragraph (c) applies only in situations where the person is known to be in need of services in a particular matter. For purposes of paragraph (c) a prospective client is "known to be in need of legal services in a particular matter" in circumstances including, but not limited to, all instance in which the communication by the lawyer concerns an event specific to the person solicited that is pending or has already occurred, such as a personal injury, a criminal charge, or a real estate purchase or foreclosure.

[4] While paragraph (c) permits written and other nondirect solicitation of any prospective client, except under the special circumstances set forth in paragraphs (a) and (b), paragraph (d) prohibits solicitation in person or by personal communication, except in the situations descried in paragraph (e). See also Comment 3A to Rule 7.2, discussing prohibited personal solicitation through chat groups or other interactive computer-accessed or similar types of communications. The prohibitions of paragraph (d) do not of course apply to in-person solicitation after contact has been initiated by the prospective client.

[4A] Paragraph (e) acknowledges that there are certain situations and relationships in which concerns about overreaching and undue influence do not have sufficient force to justify banning all in-person solicitation. The risk of overreaching and undue influence is diminished where the prospective client is a former client or a member of the lawyer’s immediate family. The word "descendant" is intended to include adopted and step-members of the family. Similarly, other lawyers and those who manage commercial, nonprofit, and governmental entities generally have the experience and judgment to make reasonable decisions with respect to the importunings of trained advocates soliciting legal business Subparagraph (e)(4) permits in-person solicitation of organizations, whether the organization is a non-profit or governmental organization, in connection with the activities of such organization, and of individuals engaged in trade or commerce, in connection with the trade or commerce of such individuals.

[5] Paragraph (f) prohibits lawyers paying a person or organization to solicit on their behalf. The provision should be read together with Rule 8.4(a), which prohibits a lawyer from violating these rules through the acts of another. The rule contains an exception for requests for referrals from described organizations.

Corresponding ABA Model Rule. Different from Model Rule 7.3.

Corresponding Former Massachusetts Rule. DR 2-103.

Last Updated 7/12/2000


RULE 7.4 COMMUNICATION OF FIELDS OF PRACTICE

(a) Lawyers may hold themselves out publicly as specialists in particular services, fields, and areas of law if the holding out does not include a false or misleading communication. Such holding out includes

(1) a statement that the lawyer concentrates in, specializes in, is certified in, has expertise in, or limits practice to a particular service, field, or area of law,

(2) directory listings, including electronic, computer-accessed or other similar types of directory listings, by particular service, field, or area of law, and

(3) any other association of the lawyer's name with a particular service, field, or area of law.

(b) Lawyers who hold themselves out as "certified" in a particular service, field, or area of law must name the certifying organization and must state that the certifying organization is "a private organization, whose standards for certification are not regulated by the Commonwealth of Massachusetts," if that is the case, or, if the certifying organization is a governmental body, must name the governmental body.

(c) Except as provided in this paragraph, lawyers who associate their names with a particular service, field, or area of law imply an expertise and shall be held to the standard of performance of specialists in that particular service, field, or area. Lawyers may limit responsibility with respect to a particular service, field, or area of law to the standard of an ordinary lawyer by holding themselves out in a fashion that does not imply expertise, such as by advertising that they "handle" or "welcome" cases, "but are not specialists in" a specific service, field, or area of law.

Comment

[1] This Rule is substantially similar to DR 2-105 which replaced a rule prohibiting lawyers, except for patent, trademark, and admiralty lawyers, from holding themselves out as recognized or certified specialists. The Rule removes prohibitions against holding oneself out as a specialist or expert in a particular field or area of law so long as such holding out does not include any false or misleading communication but provides a broad definition of what is included in the term "holding out." See also Comment 3A to Rule 7.2, discussing computer-accessed or other similar types of newsgroups, bulletin boards, and chat groups. The phrase "false or misleading communication," defined in Rule 7.1, replaces the phrase "deceptive statement or claim" in DR2-105 to conform to the terminology of Rules 7.1 and 7.3. The Rule merely expands to all claims of expertise the language of the former rule, which permitted nondeceptive statements about limiting practice to, or concentrating in, specified fields or areas of law. There is no longer any need to deal specifically with patent, trademark, or admiralty specialization. To the extent that such practices have fallen within federal jurisdiction, they will continue to do so.

[2] The Rule deals with the problem that the public might perceive that the Commonwealth is involved in certification of lawyers as specialists. It therefore requires lawyers holding themselves out as certified to identify the certifying organization with specifically prescribed language when it is a private organization and to name the certifying governmental organization when that is the case. Nothing in the Rule prevents lawyers from adding truthful language to the prescribed language.

[3] The Rule also specifies that lawyers who imply expertise in a particular field or area of law should be held to the standard of practice of a recognized expert in the field or area. It gives specific examples of commonly used forms of advertising that fall within that description. The Rule also recognizes that there may be good reasons for lawyers to wish to associate their names with a particular field or area of law without wishing to imply expertise or to accept the responsibility of a higher standard of conduct. Such a situation might describe, for example, a lawyer who wishes to develop expertise in a particular or field area without yet having it. The Rule identifies specific language that might be used to avoid any implication of expertise that would trigger the imposition of a higher standard of conduct.

Corresponding ABA Model Rule. Different from Model Rule 7.4.

Corresponding Former Massachusetts Rule. DR 2-105.

 

RULE 7.5 FIRM NAMES AND LETTERHEADS

(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

Comment

[1] A firm may be designated by the names of all or some of its members, by the names of deceased or retired members where there has been a continuing succession in the firm's identity or by a trade name such as the "ABC Legal Clinic." Use of such names in law practice is acceptable so long as it is not misleading. Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. If a private firm uses a trade name that includes a geographical name such as "Springfield Legal Clinic," an express disclaimer that it is a public legal aid agency may be required to avoid a misleading implication. It may be observed that any firm name including the name of a deceased or retired partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm.

[2] With regard to paragraph (d), lawyers who are not in fact partners, such as those who are only sharing office facilities, may not denominate themselves as, for example, "Smith and Jones," or "Smith and Jones, A Professional Association," for those titles, in the absence of an effective disclaimer of joint responsibility, suggest partnership in the practice of law. Likewise, the use of the term "associates" by a group of lawyers implies practice in either a partnership or sole proprietorship form and may not be used by a group in which the individual members disclaim the joint or vicarious responsibility inherent in such forms of business in the absence of an effective disclaimer of such responsibility.

[3] S.J.C. Rule 3:06 imposes further restrictions on trade names for firms that are professional corporations, limited liability companies or limited liability partnerships.

Corresponding ABA Model Rule. Identical to Model Rule 7.5.

Corresponding Former Massachusetts Rule. DR 2-102.

 

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