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Professional Responsibility > Advertising and Solicitation > Flashcards

Flashcards in Advertising and Solicitation Deck (11):

Advertising vs. Solicitation

Advertising is a communication with the public at large
Solicitation is individual contact with the layperson designed to entice the layperson into hiring a lawyer


Advertising: General Rule

A lawyer is subject to discipline for any type of statement made about the lawyer or his services that is false, misleading, or non-verifiable


Advertising: What is False or Misleading?

Includes material misrepresentation of law or fact, and omissions of fact that are necessary to make a statement not materially misleading

A truthful communication is misleading if:
1) There is a substantial likelihood that it will lead to unfounded conclusions about the lawyer or his services
2) It reports prior achievements on behalf of clients so as to lead an unjustified expectation of receiving the same results in a similar matter
3) It contains an unsubstantiated comparison of fees or services with those of other lawyers and is presented so specifically that a reasonable person would conclude that the comparison can be substantiated


Limits on Advertising

1) Must contain the name and address of at least one lawyer farm responsible for the contents
2) A lawyer must not give anything of value for a recommendation of her services (except advertising costs, lawyer referral service, or paying for the purchase of a law practice)
3) A lawyer may not advertise with the intent to refer


Solicitation: What is Not Considered Solicitation?

1) directed to the general public
2) responding to a request for information
3) automatically generated in response to an Internet search


Solicitation: General Rule

A lawyer must not solicit work by in-person, live telephone, or real-time electronic contact.

Does not apply to solicitation of employment from:
1) another lawyer
2) a person with whom the lawyer has a family, close personal, or prior professional relationship


Contents of A Solicitation

Must include:
1) how the lawyer became aware of the identity and specific legal need of the addressee
2) disclaim or refrain from expressing any predetermined evaluation on the merits of the case
3) conspicuously include the phrase "advertising material" in the text and on the outside envelope, or at the beginning and end of recording or electronic communication


Circumstances Rendering All Contacts Impermissible

1) the person has made known to the lawyer that she does not want to be solicited
2) the solicitation involves coercion, duress, or harassment
3) the lawyer knows or reasonably should know that the person is a minor or incompetent, or that his physical, emotional, or mental state makes it unlikely that a person could exercise reasonable judgment


Solicitation Within 30 Days of Accident

Must include the disclosure entitled "understanding your rights"


Use of an Agent for Solicitation

Lawyer may not use an agent to contact prospective clients in a manner that would violate solicitation rules


Communications of Fields of Practice

A lawyer may communicate the fact that she does or does not practice in a particular field of law

May not imply that she is certified as a specialist unless approved by this the Supreme Court Commission on Certification of Attorneys as Specialists