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The Ethical Ramifications of Lawyer Advertising

VIEWS: 150 PAGES: 45

									The Ethical Ramifications of
    Lawyer Advertising
                            Alec Rothrock


 Mr. Rothrock thanks law clerk Walter Nichols for preparing these materials.
      Colo. RPC. 7.1

Communications Concerning
   a Lawyer’s Services
                    Internet


• Internet is a public media in which
  attorneys can advertise

• Online Advertising: “electronic
  communication”

• Online Solicitation: “real-time electronic
  contact”
   – Sometimes difficult to tell if ad or solicitation
              Firm Websites

           Advertising? Solicitation?

• Potential clients must actively seek out
  firm’s website
• Yet… Firms still use Firm websites to
  advertise availability of areas of experience
   – Thus, Firm Websites are generally analogous to
     printed firm brochure and are considered
     advertisements
   – Must follow Colo. RPC. 7.1, 7.2, 7.4, 7.5
           Firm Websites
      Avoiding the Creation of
      Atty-Client Relationships
• Easy to get into problems if careless
   – Conflicts by receiving confidential information
   – Unwanted creation of attorney-client relations

          DISCLAIMERS – USE THEM!
   – Existence or use of site does not create attorney-
     client relationship
   – Any opportunity or ability to communicate via
     e-mail does not create atty-client relationship
      • Failure to have express disclaimers – firm perhaps
        impliedly agreed to creation of atty-client
        relationship
      Measures to Put in Place

• A conspicuous disclaimer which:
  – Explains attorney doesn’t accept clients through email
    and gives formal client intake policy
  – Warns sender not to disclose or send confidential
    information or documents
  – States that no one in the firm is obligated to respond
    to email inquiries
  – Pops up when email link is utilized, requires affirmative
    action to accept or decline disclaimer
  – Prevents access to attorney’s email link if not accepted
• Additional precaution: route emails to non-
  attorney who screens for problems
         Colorado Rules of
       Professional Conduct

Structure:
• Rule
• Ethics Opinions
• Colorado cases
• Relevant cases from other
  jurisdictions
• Proposed changes to current rule
• Rules applied to current technology
           Colorado Rules of
         Professional Conduct
• Colo. RPC. 7.1
  – Communications Concerning A Lawyer’s Services
• Colo. RPC. 7.2
  – Advertising
• Colo. RPC. 7.3
  – Solicitation
• Colo. RPC. 7.4
  – Communication of Field of Practice
• Colo. RPC. 7.5
  – Firm Names and Letterheads
               Colo. RPC. 7.1

(a) Prohibits “false or misleading”
  communication
   – Contains material misrepresentation (or
     omission) of fact or law
   – Creates unjustified expectations about results a
     lawyer can achieve
   – Compares lawyer’s services with other lawyers’
     services
      • Unless comparison can be factually substantiated
(b) Prohibits payment of lawyer’s advertising
  costs by attorney outside of lawyer’s firm
   – Unless disclosures are made
             Colo. RPC. 7.1

(c) Requires unsolicited mail about lawyer’s
  services be sent to prospective clients only
  by regular US Mail

(d) Requires that “No fee if no recovery”
  communications state client may be liable
  for costs

(e) Prohibits lawyers from knowingly
  permitting, encouraging or assisting others
  to violate Colo. RPC. 7.1 – 7.4
            Colo. RPC. 7.1
              Summary

• All communications regarding a lawyer’s
  services must be truthful

• To avoid false and misleading statements,
  lawyers should only use factually
  substantiated information
        Colo. RPC. 7.1(a)
   Colorado Ethics Opinion 76
  Lawyer Advertising Guidelines

• Lawyers should not claim to be
  “experienced” in matters which typically
  involve litigation in the absence of
  substantial trial expertise
  – Must also be able to handle matter through trial
                                Matter of Zang, 741 P.2d 267 (Ariz. 1987)



• Lawyers must disclose to the public any
  likely associations with more experienced
  lawyers
                       Colo. RPC. 7.1(a)
                        Colorado Cases

• Newspaper ad listing a law clerk as a
  special advocate of the firm People v. Ra’Shadd, 110 P.3d
   388(Colo. O.P.D.J. 2005)
    – The law clerk 1. Was no longer with the firm; 2. Had
      no training/experience as a special advocate; 3. Had
      no knowledge her name was used in the ad

• Ad claiming multiple attorneys, 13 areas of
  expertise available People v. Carpenter, 893 P.2d 777 (Colo. 1995)
    – In actuality, far fewer areas of expertise available
                  Colo. RPC. 7.1(a)
                   Colorado Cases
• Letterhead indicating admittance to practice in 10
  jurisdictions                 People v. Smith, 830 P.2d 1003 (Colo. 1992).

     – Suspended from 5, Ineligible in 1, Inactive in 1, Bar
       Membership terminated in 1, Never admitted in 1


• Ads containing misleading information about divorce
  fees and practice             People v. Roehl, 655 P.2d 1381 (Colo. 1983)

     – Ads conveyed that $65 entitled client to legal representation
       in divorce proceedings, regardless of circumstances
     – Instead, $65 got clients a package of carelessly composed
       standardized forms, applicable only in uncontested divorce
       with no children or real estate, without court representation
     – Created problems for many clients and courts
           Other States:
   Equivalent of Colo. RPC. 7.1(a)

• Can’t give bogus office locations in ads                                         (Unnamed Attorney v.
   Kentucky Bar Ass’n, Ky., No. 2004-SC-0596-KB, 9/23/04).


• Can’t advertise for legal business with intention to
  refer a majority of cases without disclosure of that
  intent (State Bar of Georgia Formal Advisory Opinion No. 92-2)
• Can’t advertise for specific types of cases which
  attorney/firm does not presently handle nor intend
  to handle (Virginia Legal Advertising Opinion A-0115, 4/04/06)
• Can’t include testimonials in a brochure that create
  unjustified expectations (Florida Bar v. Wolfe, 759 So.2d 639 (Fla. 2000)
• Can’t use “combined years experience” if misleading
            Haymond v. Statewide Grievance Committee, 723 A.2d 808 (Conn. 1999); PA Eth. Op. 92-38 (1992)
    Self-Laudatory Descriptions

• Generally disallowed because they create
  unreasonable expectations of results and
  compare the lawyer’s services to others’
  without factual substantiation which can be
  misleading
      Usually found in:
      • Testimonials
      • Descriptive “marketing” words


• Usually violate Colo. RPC. 7.1(a) or other
  state’s equivalent
 Self-Laudatory Descriptions
   Other States: Examples

– “Have used various legal firms for our
  special circumstances. Attorney XYZ
  seemed more knowledgeable.” Connecticut Bar Ass’n
  Comm. On Professional Ethics, Informal Op. 01-07, 5/21/01)

– “No. 1,” “the best,” “one of the best,”
  “most experienced,” “efficient” Tenn. Bd. Prof. Resp.,
  Formal Op. 2004-F-149, 9/17/04)

– Super Lawyer NJ Committee on Attorney Advertising Opinion 39
– Best Lawyers in America Virginia Legal Ethics Committee Legal
  Advertising Opinion A-0114; NJ Committee on Attorney Advertising Opinion 39

– “AV Rated, the highest rating”                                        Mason v. Florida Bar,
  208 F.3d 952 (2000).

    • Misleading without full description of rating system
 Colorado Diversion Agreements:
  Violations of Colo. RPC. 7.1(a)


• Listing local libraries’ addresses in Yellow
  Pages ad as location the attorney was
  available for consultation             (Jan. 2002)




• Practicing as “XXXX and Associates” when
  there are no associates             (July 2002)




• Using ads and public communication
  displaying shareholder’s name after placed
  on disability-inactive status       (Jan. 2005)
 Colorado Diversion Agreements:
  Violations of Colo. RPC. 7.1(a)
• Use of signage & voicemail identifying as a
  lawyer after being administratively
  suspended for failing to comply with CLE
  requirements and pay registration fees(Jan. 2007)

• Implying in ads that lawyer has
  qualifications which he or she doesn’t     (April 2006)




• Advertising lawyer as “experienced” when
  only licensed for one year            (Jan. 2000)
          Other States:
  Equivalent of Colo. RPC. 7.1(d)
     “No fee” ads require disclosure that
            clients liable for costs

• Flyer didn’t disclose a) clients are liable for
  expenses or b) computation method
                                          (Florida Bar v. Wolfe, 759 So.2d 639 (Fla. 2000)




• “There’s no charge unless we win your
  case” and “No fee, unless we win” are
  misleading and require disclosure regarding
  court costs and other litigation expenses.
                    Office of Disciplinary Counsel v. Shane, 81 Ohio St. 3d 494 (1998)
          Other States:
  Equivalent of Colo. RPC. 7.1(e)
       Prohibits lawyers from knowingly permitting,
        encouraging, or assisting others to violate
                   Colo. RPC. 7.1-7.4

• Ads containing comparative statements
  would violate Colo. RPC. 7.1(a)

• Prohibition against comparative statements
  can NOT be circumvented by using client
  testimonials. Virginia Lawyer Advertising Opinion A-0113
   – This violates Colo. RPC. 7.1(e)   (or state’s equivalent)
   Proposed Changes to
      Colo. RPC. 7.1



   Comment language will be added
explaining that Colo. RPC 7.1 prohibits
 truthful, yet misleading, statements
Colo. RPC. 7.2

 Advertising
                Colo. RPC. 7.2

(a) Allows lawyers to advertise services or
  fees using multiple media types
(b) Requires lawyer keep copy/recording of
  ads, record of use for 4 years from last use
      • Does not mandate that ads be subject to review
        prior to dissemination      Comment to Colo. RPC. 7.2


(c) Prohibits referral fees, except
      • Can pay reasonable costs of ads
      • Can pay the usual charges of a not-for-profit
        lawyer referral service
      • Can pay for a law practice (Colo. RPC. 1.17)
             Colo. RPC. 7.2


(d) Ads must include responsible attorney’s
  name


(e) Ads must comply with Rules 7.1 and 7.4
      • e.g. 7.1(b) – Requiring disclosures if
        cost of ad paid by outside lawyer/firm
        Proposed Changes to
           Colo. RPC. 7.2
• Deletion of types of media covered

• Inclusion of electronic communications
  within its purview

• Omission of requirement that attorney
  maintain copies for defined time period
  – Due to this requirement becoming increasingly
    burdensome
  – Will this make enforcement more difficult?
  Colo. RPC. 7.3

Direct Contact with
Prospective Clients
                Colo. RPC. 7.3

(a) Lawyer can’t solicit a prospective client in-person or
     by live telephone contact if:
       •   Lawyer has no family or prior professional
           relationship
       •   Lawyer’s motive is lawyer’s own pecuniary gain

(b) Lawyer can’t solicit by written, recorded, or
     electronic communication, in person or by live
     telephone contact (Read: NO FORM OF
     SOLICITATION IS PERMITTED) if:
       •   Prospective client has informed lawyer of desire
           not to be solicited by lawyer
       •   Solicitation involves coercion, duress or
           harassment
                 Colo. RPC. 7.3
(c) Prohibits lawyers from soliciting prospective clients
     for personal injury or death cases by written,
     recorded, or electronic communication
   –    Does not apply if family or prior professional
        relationship or if more than 30 days from occurrence
   –    Must follow:
       •   No communication if lawyer knows or should know
           prospective client represented by lawyer
       •   Disclosure if matter will/would be referred
       •   No communication can resemble legal pleadings or
           documents
       •   Nature of prospective client’s legal problems can’t be
           revealed on outside of envelope
       •   Copy or recording must be kept for 4 years
             Colo. RPC. 7.3(d)

      “Every written, recorded or electronic
      communication governed by 7.3 shall
           include the words “this is an
   advertisement” in a form that is clear and
  conspicuous on the outside of the envelope,
  if any, and at the beginning and end of any
         written, recorded or electronic
                 communication”
• Applicable to solicitation… but not applicable to what
  lawyers generally thought of as advertisements:
  Public media such as TV, radio, electronic media,
  etc.
 Colorado Diversion Agreements:
  Violations of Colo. RPC. 7.3(d)

• Attorney sent advertisement letter to
  prospective client without “this is an
  advertisement”                      (July 2000)

   – Atty. was previously advised of non-compliance


• Among other infractions, attorney solicited
  business from clients through an LLC
  without referring to communications as
  “advertisements”                  (October 2002)

   – There was no harm/risk of harm to any 3rd party
 Colo. RPC. 7.4

Communication of
 Field of Practice
               Colo. RPC. 7.4



(a) Allows communication that attorney’s
    practice does or doesn’t include particular
    areas of law
      •   “Specialist” ok if not false or misleading


(d) Lawyer can permit listing by referral
    service in specific areas of law
               Colo. RPC. 7.4
(e) Permits distribution or publication of
  announcement of availability as consultant

(f) If, in an advertisement, lawyer claims to
   be certified in any area of the law
   – Must state “Colorado does not certify attorneys
     as specialists in any field”
      • Not required if publication intended primarily for
        use of the legal profession

(g) Lawyer purchasing private practice under
  Colo. RPC. 1.17 may allow qualifications to
  be described by selling lawyer
             Colo. RPC. 7.4



“A lawyer is prohibited from claiming
expertise or emphasis in a filed of law
unless the lawyer has or develops the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for
representation of clients in that field of
law.”                        Comment to Colo. RPC. 7.4
           Other States:
    Equivalent of Colo. RPC. 7.4

• Attorney without any special training or
  expertise in securities law misrepresented
  his experience in the area on his firm’s
  website
                                  In re Richmond’s Case, 872 A.2d 1023 (NH 2005)


• Firm’s use of “Injury Experts” not permitted
  – Rule 7.4 allows “Specialist”…but not “Expert”
     • Expert is misleading qualitative term
                        In re PRB Docket No. 2002.093, Vt., No. 2003-519, 1/11/05)
      Colo. RPC. 7.5

Firm Names and Letterhead
              Colo. RPC. 7.5


(a) Lawyers can’t use/participate in any use
    of firm name or letterhead which violates
    Colo. RPC. 7.1

(b) Lawyers can’t practice under tradename
    or other misleading name

(c) Firm may use same name in multiple
    jurisdictions
  •   Must indicate jurisdictional limitations of
      individual attorneys
             Colo. RPC. 7.5

(d) Firm may use the name/s of deceased or
  retired members of the firm

(e) Firm can’t use name of a lawyer holding
  public office, unless actively and regularly
  practicing with the firm

(f) Lawyers can only state/imply practice in a
   partnership or other organization only when
   it is a fact
            Colo. RPC. 7.5
            Colorado Cases

• Use and signature of attorney/firm
  letterhead without qualification conveys the
  message that signing person is attorney
• Proof of intent to mislead or reliance is not
  element of violation

• Use of suspended attorney’s name on
  letterhead without disclosure is violation
                              People v. Gray, 35 P.3d 611 (Colo. 2001)
         Colo. RPC. 7.5
    Colorado Ethics Opinions
• 1 partner firm
• Partner getting married, will be using married name
• Partner will have maiden and married name on
  letterhead

       Can the firm continue to use her maiden
              name as the firm name?

                         YES
           Does not present a likelihood the
               public will be confused
                                Colorado Ethics Committee Abstract 01/02-01
        Other States:
 Equivalent of Colo. RPC. 7.5

When an attorney is placed on disability
inactive status the attorney’s name should
not be used in the firm name or any other
communication with the public

   • Difference between retiring atty (good standing)
     and atty on disability inactive status (petition for
     reinstatement necessary) Arizona Ethics Opinion 02-07 (09/2002)
 Colorado Diversion Agreements:
   Violations of Colo. RPC. 7.5
• Solo practitioner using letterhead indicating
  associates in the firm                                 (July 2000)


• Attorney had two offices, one of which operated
  under improper trade name                      (Jan 2003)


• Respondent signed letters and consulted clients
  without disclosure that he had not been admitted to
  Colorado Bar                                   (July 2004)

   – Possible exception for exclusive federal practice

• Sole shareholder of firm placed on disability-inactive
  status                                           (Jan 2005)

   – Associate became de facto manager for firm
   – Firm continued to use Shareholder’s name
        Proposed Changes to
           Colo. RPC. 7.5



• Trade names will be allowed
  – Firms effectively practice under trade names
    already (names of deceased/retired lawyers)
  – Colo. RPC. 7.1 will protect the public from
    misleading trade names
Colo. RPC. 7.1 – 7.5

Applied to Current
   Technology




  Information in the Current Technology section located in greater detail in:
  Luce, Charles. Legal Ethics on the Internet. Journal of Internet Law. Volume 7 Number 4. October 2003.
  For further information, please see: http://www.cobar.org/group/index.cfm?category=1252&EntityID=CETH

								
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