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Flashcards in Communications About Legal Services Deck (22)
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1
Q

**True or false**: As long as the statement is **truthful**, an advertisement can contain **misleading** information.

A

**False**. Misleading statements, even if truthful, are prohibited by [Rule 7.1.](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_1_communication_concerning_a_lawyer_s_services/comment_on_rule_7_1/)

2
Q

When is a truthful statement considered **misleading**?

A

If:

1. The statement **omits facts** necessary to make it not misleading;
2. Creates **unjustified expectations**; or
3. Presented in a way that creates a substantial likelihood that a reasonable person would believe the lawyer’s communication **requires that person to take further action** when, in fact, no action is required.

[Rule 7.1](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_1_communication_concerning_a_lawyer_s_services/)

3
Q

All advertisements governed by Rule 7.2 must include **what type of information**?

A

**Name** and **office address** of at least one attorney or law firm.

[Rule 7.2(c)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_2_advertising/)

4
Q

Can a lawyer pay a person to recommend the lawyer's services?

A

No, but the lawyer can:

1. Pay the **reasonable costs of advertisements or communications** permitted by Rule 7.2;
2. Pay the **usual charges** of a legal service plan or a not-for-profit or qualified lawyer referral service;
3. Pay for a **law practice** in accordance with Rule 1.17;
4. **Refer clients** to another lawyer or a nonlawyer professional as long as the (i) the reciprocal referral agreement is not exclusive; and (ii) the client is informed of the agreement; or
5. Give **nominal gifts** that are neither intended nor reasonably expected to be a form of compensation

[Rule 7.2(b)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_2_advertising/)

5
Q

Can a lawyer state or imply that the lawyer is certified as a **specialist**?

A

Yes, as long as:

1. Lawyer has been **certified as a specialist** by an accredited or approved organization; and
2. **Name** of the certifying organization is **clearly identified** in the communication.

[Rule 7.2(c)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_2_advertising/)

6
Q

What is **solicitation**?

A

(1) Communication initiated **by a lawyer** (2) that is **directed to a specific person** and (3) that **offers to provide legal services**.

[Rule 7.3](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_3_direct_contact_with_prospective_clients/)

7
Q

When is **solicitation allowed**?

A

**If for pecuniary gain**, only allowed if person is:

1. Another lawyer; or
2. Close relative, personal friend, or has a prior professional relationship with the lawyer. [Rule 7.3(a)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_3_direct_contact_with_prospective_clients/)

**If not for pecuniary gain**, allowed as long as it does not harass, coerce, or use duress. [Rule 7.3(b).](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_3_direct_contact_with_prospective_clients/)

8
Q

How many days does a lawyer need to wait to contact a victim or victim's family of an **airline disaster**?

A

**45 days** following the accident.[49 U.S.C. § 1136(g)(2).](https://www.law.cornell.edu/uscode/text/49/1136)

9
Q

What is the difference between an **advertisement** and a **solicitation**?

A

Solicitation: **Live** contact directed towards a **specific person** that **offers legal services.**

Advertisement: Not live contact, usually not directed towards specific individuals

10
Q

**Advertising circulars** sent in the mail must contain what words and where?

A

The **outside envelope** must contain the words **"Advertising Material."**

[Rule 7.3](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_3_direct_contact_with_prospective_clients/)

11
Q

What must be stated at the beginning and end of written and recorded **electronic communications**?

A

If being used by the lawyer to **solicit** professional employment from someone known to be in need of legal services, the beginning and end must contain the words **"Advertising Material."**

[Rule 7.3](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_3_direct_contact_with_prospective_clients/)

12
Q

Is this type of advertisement permitted:

"*The client will pay no fee unless there is a successful result!*"

A

No, because it does not factor in the costs and fees of litigation.

13
Q

A law firm can be **named** after which individuals?

A

All or some of its **current members** or by the names of deceased members where there has been a **succession in the firm’s identity.**

[Rule 7.1, comment](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_1_communication_concerning_a_lawyer_s_services/comment_on_rule_7_1/)

14
Q

If a lawyer is holding **public office**, is the law firm allowed to use the name of the lawyer in the name of the law firm or in communications on the law firm’s behalf?

A

Only if the lawyer is still **actively and regularly practicing** with the firm.

It is misleading to use the lawyer's name during any substantial period in which the lawyer is not actively and regularly practicing with the firm

[Rule 7.1, comment 8](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_7_1_communication_concerning_a_lawyer_s_services/comment_on_rule_7_1/)

15
Q

Can law firms have **trade names?** (Ex. Torchlight Partners)

A

Yes, as long as 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.

[Rule 7.5](https://www.americanbar.org/groups/professional_responsibility/policy/ethics_2000_commission/e2k_rule75/)

16
Q

Does an advertisement need to contain the **name and office address** of at least one attorney or law firm?

A

Yes.

17
Q

Does a lawyer need to keep their own funds **separate** from those of clients?

A

Yes. Funds must be kept in a **separate account** maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person.

[Rule 1.15(a)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/)

⚠️ Exception: A lawyer may deposit the lawyer's own funds in a client trust account for the **sole purpose of paying bank service charges** on that account (only up to the amount necessary to pay bank service charges). **Accurate records must be kept** regarding which part of the funds are the lawyer's. [Rule 1.15, comment 2.](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/comment_on_rule_1_15/)

18
Q

Does a laywer need to **keep records of account funds** and other property **after** the representation ends?

A

Yes, the lawyer must keep the records for 5 years after termination of the representation.

[Rule 1.15(a)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/)

19
Q

What does a lawyer need to do with **legal fees and expenses** that have been **paid in advance**?

A

Deposit them into the **client trust account** and only withdraw them as the fees are earned or expenses incurred.

[Rule 1.15(c)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/)

20
Q

What must the lawyer do upon **receiving funds** or other property in which a **client or third person has an interest**?

A

Promptly:

1. **Notify** the client or third person;
2. **Deliver** to the client or third person any funds or other property that the client or third person is entitled to receive (unless otherwise permitted by law, agreement with client, or Rule 1.15); and
3. Render a **full accounting** of the property (if requested)

[Rule 1.15(d)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/)

21
Q

What should the lawyer do if they are in possession of property in which **two or more persons** (one of whom may be the lawyer) **claims interest**?

A

All disputed property must be **kept in a separate** trust account until the dispute is resolved.

All undisputed property should be **promptly distributed**.

[Rule 1.15(e)](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/)

⭐️ Note: The lawyer should suggest means for prompt resolution of the dispute, such as arbitration. [Rule 1.15, comment 3.](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/comment_on_rule_1_15/)

22
Q

What should the lawyer do if there is a **third-party claim** against the client's property that is in the lawyer's custody?

(ex. a client's creditor who has a lien on funds recovered in a personal injury action)

A

If the third-party claim is not frivolous under applicable law, the lawyer **must refuse to surrender** the property to the client until the claims are resolved.

A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer **may file an action to have a court resolve the dispute**.

[Rule 1.14, comment 4](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/comment_on_rule_1_15/)