Information About Legal Services Flashcards
7 Series (22 cards)
Rule 7.1 Communications Concerning a Lawyer’s Services
Communications Concerning a Lawyer’s Services
A lawyer cannot make false or misleading statements about their services.
This includes statements that omit critical facts or create unjustified expectations.
Rule 7.2(a) Communications Concerning a Lawyer’s Services, Special Rules
Communications Concerning a Lawyer’s Services, Special Rules
(a) Lawyers can advertise legal services through any media.
Rule 7.2(b) Communications Concerning a Lawyer’s Services, Special Rules
Communications Concerning a Lawyer’s Services, Special Rules
(b) No paying for referrals—exceptions include ads, legal plans, and reciprocal non-exclusive referral agreements (must disclose to clients).
Rule 7.2(c) Communications Concerning a Lawyer’s Services, Special Rules
Communications Concerning a Lawyer’s Services, Special Rules
(c) Cannot claim certification unless it’s by an approved organization and properly disclosed.
Rule 7.2(d) Communications Concerning a Lawyer’s Services, Special Rules
Communications Concerning a Lawyer’s Services, Special Rules
(d) Ads must include contact info for at least one responsible lawyer or firm.
Rule 7.3(a) Solicitation of Clients
Solicitation of Clients
(a) Defines “solicitation” as targeting someone known to need legal help.
Rule 7.3(b)
Solicitation of Clients
(b) Prohibits live, person-to-person solicitation for money unless the person is a lawyer, has a prior relationship with the lawyer, or uses such legal services regularly.
Rule 7.3(c)
Solicitation of Clients
(c) Bars all solicitation if the person doesn’t want contact or if the contact is coercive or harassing.
Rule 7.3(d)
Solicitation of Clients
(d) Allows lawful or court-authorized communication.
Rule 7.3(e) Solicitation of Clients
Solicitation of Clients
(e) Lawyers can participate in prepaid legal plans not owned/controlled by them.
An attorney participated in an organization that used personal phone calls to solicit membership in its prepaid group legal services plan. After some confusion caused by the organization’s telemarketers, who were not lawyers, the organization decided to have the phone contacts made by lawyers who participated in the plan. That way, the lawyers would be better able to answer questions and protect potential members from misunderstanding what they were buying if they chose to join the plan.
Under the Model Rules of Professional Conduct, is it proper for the attorney to participate in the plan?
A: Yes, because the organization is actively ensuring that potential members understand what they are buying.
B: Yes, because participation in a prepaid legal services plan is proper under the Model Rules.
C: No, because participating lawyers are making the phone calls to potential members.
D: No, because an attorney may not participate in any plan that uses personal phone calls to solicit membership.
C: No, because participating lawyers are making the phone calls to potential members.
Answer option C is correct. Although a lawyer may participate in a prepaid legal services plan, that plan must not allow lawyers who participate in the plan to solicit potential clients. Model Rules of Prof’l Conduct r. 7.3 cmt. 9 (Am. Bar Ass’n 2016). Consequently, answer options A and B are incorrect. Answer option D is incorrect because the attorney may participate in such a plan provided a few restrictions are met. Id.
An attorney participated in a prepaid legal services plan. The owner of the plan called the attorney and told him that the current managers of the plan did not understand the law and were causing confusion with plan members and making mistakes that harmed the members’ legal positions. The owner thought the problem could be solved if the attorney managed the plan. The owner told the attorney that the attorney would remain a service provider but also manage the day-to-day operations of the plan. The attorney would be compensated for the extra work but would gain no ownership interest in the plan. The attorney accepted the offer.
Is the attorney subject to discipline under the Model Rules of Professional Conduct?
A: Yes, because an attorney may not manage a prepaid legal services plan.
B: Yes, because the plan has been harming the legal positions of its members.
C: No, because the attorney will gain no ownership interest in the plan.
D: No, because the attorney’s new position is intended to address member confusion and the harming of their legal positions.
A: Yes, because an attorney may not manage a prepaid legal services plan.
Answer option A is correct. A lawyer who participates in a prepaid legal services plan may not also direct or manage the plan. Model Rules of Prof’l Conduct r. 7.3 cmt. 9 (Am. Bar Ass’n 2016). Answer option B is incorrect because the fact that the plan may have made some mistakes would not mean the attorney cannot participate in the plan. Answer option C is incorrect because Model Rule 7.3 prohibits a lawyer from directing a prepaid legal services plan as well as having an ownership stake in the plan. Id. at r. 7.3. Answer option D is incorrect because the intention behind putting the attorney in charge of the plan would not change the analysis.
An attorney and an accountant entered into a nonexclusive reciprocal referral agreement. Under the terms of the agreement, the attorney and the accountant agreed to refer clients to one another. The agreement was set to last for five years. The lawyer and the accountant both planned to inform their clients of the reciprocal referral agreement.
Is the agreement permitted under the Model Rules of Professional Conduct?
A: Yes, because the agreement lasts less than 10 years.
B: Yes, because potential clients are informed of the existence of the agreement.
C: No, because the accountant is not a licensed attorney.
D: No, because the attorney is giving the account new business, which is something of value.
B: Yes, because potential clients are informed of the existence of the agreement.
Answer option B is correct. Model Rule 7.2(b) prohibits a lawyer from giving anything of value to a person for recommending the lawyer’s services. However, a lawyer may refer clients to another lawyer or nonlawyer professional pursuant to a reciprocal referral agreement. Such agreements comply with a lawyer’s professional duties so long as: (1) the reciprocal referral agreement is not exclusive, and (2) the client is informed of the existence and nature of the agreement. Model Rules of Prof’l Conduct, r. 7.2(b)(4) (Am. Bar Ass’n 2016).
Here, the lawyer has entered into a reciprocal referral agreement with a nonlawyer, an accountant. The agreement is not exclusive. The lawyer plans to inform clients of the referral arrangement. Therefore, the agreement is permitted under the Model Rules of Professional Conduct. Answer options C and D are necessarily incorrect for this same reason.
Answer option A is incorrect. The Model Rules do not limit how long a reciprocal referral agreement may last. However, reciprocal referral agreements should not last indefinitely and should be reviewed periodically to ensure they comply with the Model Rules. See id. cmt. 8.
Answer option C is also incorrect because the Model Rules permit reciprocal referral agreements with both lawyers and nonlawyers.
After an attorney served four terms as a state senator, he decided to return to private practice at his former firm. The firm printed and mailed an announcement of the attorney’s return to all members of the state bar and other important state citizens. The announcement truthfully stated the attorney’s achievements as a state senator and included the address and contact information for the attorney at the firm.
Is the attorney subject to discipline?
A: Yes, because the announcement implied an ability to improperly influence the courts.
B: Yes, because the mailing included people who were not lawyers.
C: No, because all the information in the announcement was true.
D: No, because the firm was responsible for making the announcement.
C: No, because all the information in the announcement was true.
Answer option C is correct. Under Model Rule 7.1, a lawyer may not make a false or misleading statement when advertising his or her services. Model Rules of Prof’l Conduct, r. 7.1 (Am. Bar Ass’n 2016). Here, the mailing simply announced the attorney’s return to practice and contained no false information. Answer option A is incorrect because nothing in the mailing implied any improper influence over the courts. See id. at r. 8.4(e). Answer option B is incorrect because the mailing announcing the attorney’s return to practice does not violate Model Rule 7.3’s prohibition against (1) contacting people the lawyer knows do not want to be solicited, or (2) contacting people in a way that is coercive or harassing. See id. at r. 7.3. Answer option D is incorrect because the attorney would not be protected from discipline if the mailing was false or otherwise violated the Model Rules simply because the mailing was sent by the firm.
An attorney made a radio commercial that said: “Do you need legal help? I’m Robert Jones and I’m a licensed attorney at law. My initial conference with you is free. Make sure that you are doing everything you can to protect you and your family. Our offices are at One Main Street and our phone number is (555) 123-4567! Call now!”
Is the attorney subject to discipline under the Model Rules of Professional Conduct?
A: Yes, because the commercial encourages litigation.
B: Yes, because the commercial promises a result that callers and their families will be protected.
C: No, because all the information in the commercial is true.
D: No, because all of the information in the commercial is true and not misleading.
D: No, because all of the information in the commercial is true and not misleading.
Answer option D is correct. Rule 7.1 of the Model Rules of Professional Conduct prohibit communications about legal services that are either false or misleading. A communication is false or misleading if it contains a material misrepresentation of fact or law, or it omits a fact necessary to make the statement, when considered as a whole, not materially misleading. A truthful statement is misleading if a substantial likelihood exists that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services, for which there is no reasonable factual foundation. Model Rule of Prof’l Conduct 7.1 cmt. 2.
Here, the radio commercial urges listeners to call if they need legal help. It includes the lawyer’s name, contact information, and offers help. None of the information in the commercial is false. None of the information poses a substantial risk that a reasonable listener would draw an unfounded conclusion about the lawyer’s services; therefore, the commercial is not misleading, either. For these reasons, the attorney would not be subject to discipline. Answer options A and B are necessarily incorrect for this same reason.
Answer option A is also incorrect because the commercial does not encourage litigation or for listeners to sue. It merely offers legal help, which encompasses transactional services and counseling in addition to litigation.
Answer option B is also incorrect because the commercial does not guarantee or suggest a result, insofar as it does not create an unjustified expectation in a listener that the lawyer will be able to achieve a particular result. See Model Rule of Prof’l Conduct 7.1 cmt. 3.
Answer option C is incorrect because the Model Rules prohibit not only false communications, but also true but misleading communications.
An attorney and a financial planner entered into a reciprocal referral agreement where each of them agreed to refer potential clients to the other. Based on the agreement, the attorney referred a client to the financial planner. A year later, the client complained to the attorney that the financial planner didn’t seem very good and had cost him a lot of money. The client asked the attorney why he had recommended the planner, and the attorney told him about the referral agreement. The client then fired the attorney and said that he would never have gone to the financial planner if he knew that the attorney was recommending him only because of the referral agreement.
Is the attorney subject to discipline under the Model Rules of Professional Conduct?
A: Yes, because the attorney referred the client to the financial planner only because of the referral agreement.
B: Yes, because the attorney did not tell the client about the referral agreement before recommending the financial planner.
C: No, because the referral agreement was a business matter between the attorney and the financial planner.
D: No, because the attorney was not responsible for the outcomes achieved by the financial planner.
B: Yes, because the attorney did not tell the client about the referral agreement before recommending the financial planner.
Answer option B is correct. The Model Rules permit a lawyer to enter into a reciprocal referral agreement with another lawyer or nonlawyer professional, but the client must be “informed of the existence and nature of the agreement.” Model Rules of Prof’l Conduct r. 7.2(b)(4)(ii) (Am. Bar Ass’n 2016). Consequently, answer options C and D are incorrect. Answer option A is incorrect because the Model Rules require only that a reciprocal referral agreement not interfere with a lawyer’s professional judgment, and there is no indication that the agreement did so under the facts presented here.
An attorney who specialized in elder care learned of several new statutes that could negatively affect a will she wrote for one of her former clients. The attorney had not represented the client since she wrote the will four years ago and believed the client now used another attorney. In hopes of regaining the client, the attorney called her to see about writing a new will.
Is the attorney subject to discipline under the Model Rules of Professional Conduct?
A: Yes, because the client has a new attorney.
B: Yes, because the attorney has not represented the client for four years.
C: No, because the attorney used to represent the client.
D: No, because the new statutes could negatively affect the client’s will.
C: No, because the attorney used to represent the client.
Answer option C is correct. Under Model Rule 7.3, a lawyer is prohibited from contacting “prospective” clients. Model Rules of Prof’l Conduct r. 7.3 (Am. Bar Ass’n 2016). However, the Model Rules do not prohibit soliciting former clients. Here, because the client was formerly the attorney’s client, the attorney may properly contact her. Answer option A is incorrect because the fact the client may have a new attorney does not change the analysis. Answer option B is incorrect because the client remains a former client even if the representation took place several years ago. Answer option D is incorrect because the attorney could not contact the client simply because there were new statutes that could hurt the client, unless they had a former relationship. Consequently, answer option C is the best answer because it states the dispositive issue.
An attorney who had done some legal work for a local bank invited the bank president to lunch and told her that the attorney’s uncle was dying of cancer. The attorney knew that his uncle was personal friends with the bank president and that his uncle had all his accounts at the bank. During lunch, the attorney asked that if the bank was named executor of the uncle’s estate, that the attorney be hired to do any necessary legal work. The attorney really needed the work because he was behind on his mortgage payments.
Is the attorney subject to discipline under the Model Rules of Professional Conduct?
A: Yes, because the attorney solicited work in person.
B: Yes, because one of the attorney’s significant motives in soliciting the work was pecuniary gain.
C: No, because the bank had not yet been named executor of the estate.
D: No, because the bank was a former client.
D: No, because the bank was a former client.
Answer option D is correct. Under Model Rule 7.3(a), a lawyer may solicit employment in person for pecuniary gain if the person solicited is a lawyer, family member, close personal friend, or has a prior professional relationship with the lawyer. Model Rules of Prof’l Conduct r. 7.3(a) (Am. Bar Ass’n 2016). Here, because the bank was a former client of the attorney, the Model Rule permits the attorney to solicit work from the bank president. Consequently, answer options A and B are incorrect. Answer option C is incorrect because that the fact the bank had not yet been named executor does not change the analysis.
An attorney was drafting a new ad that would appear in an industry trade publication. The attorney was certified as a specialist in trademark law by the Intellectual Property Owners Association (IPO). However, the IPO was not approved as a certifying entity by any state or by the American Bar Association (ABA).
Which of the following draft ad sentences, if any, comports with Rule 7.2 of the Model Rules of Professional Conduct?
A: Certified as a trademark specialist.
B: Certified as a trademark specialist by an organization approved by the ABA.
C: Certified as a trademark specialist by the Intellectual Property Owners Association.
D: None of the sentences complies with Rule 7.2.
D: None of the sentences complies with Rule 7.2.
Answer option D is correct. Under the Model Rules of Professional Conduct, a lawyer may not state or imply that he is a certified specialist in a given area, unless: (1) the lawyer is certified by an organization approved by the appropriate state authority or accredited by the American Bar Association, and (2) the name of the certifying organization is clearly identified in the communication. Model Rules of Prof’l Conduct 7.2(c) (Am. Bar Ass’n 2020).
Here, the attorney is certified as a specialist in trademark law by the IPO. However, the IPO is not approved by any state, nor is it accredited by the ABA. For this reason, the attorney cannot communicate about the trademark specialization. None of the draft sentences comport with the attorney’s responsibilities under Rule 7.2. Answer options A, B, and C are necessarily incorrect for this same reason.
Had the attorney been certified as a specialist by an organization approved by the appropriate state authority or accredited by the ABA, the draft copy in answer option C best comports with Model Rule 7.2(c) because it clearly identifies the IPO as the certifying organization.
An attorney moved to a new state and advertised that he was a “certified personal-injury specialist.” The advertisement named the organization that had certified the attorney as a specialist. The attorney had practiced personal-injury law in another state for 40 years. During that time, he had been certified as a personal-injury specialist by an organization certified by that state and the American Bar Association. In the new state, the attorney was waived into the state bar without having to take the new state bar exam because of the length of his prior practice. In the new state, he did not pursue certification as a specialist by any organization approved by the new state.
Under the Model Rules of Professional Conduct, may the attorney advertise that he is a certified personal-injury specialist in the new state?
A: Yes, because the attorney has practiced personal-injury law for 40 years.
B: Yes, because the attorney has been certified as a specialist by an organization approved by the American Bar Association.
C: No, because the attorney was waived into the new state’s bar.
D: No, because the attorney did not pursue certification as a specialist by an organization approved by the new state.
B: Yes, because the attorney has been certified as a specialist by an organization approved by the American Bar Association.
Answer option B is correct. Under the Model Rules of Professional Conduct, a lawyer may not state or imply that he is a certified specialist in a given area unless (1) the lawyer is certified by an organization approved by the appropriate state authority or accredited by the American Bar Association, and (2) the name of the certifying organization is clearly identified in the communication.
Here, the attorney is certified as a personal-injury specialist by an organization approved by his previous state of practice and by the American Bar Association. The attorney may therefore communicate in the new state that he is certified as a personal-injury specialist because the certifying organization is approved by the American Bar Association. Any communication must clearly identify the name of the certifying organization.
Answer option A is incorrect. Under the Model Rules of Professional Conduct, a lawyer may not state or imply that he is a certified specialist in a given area unless (1) the lawyer is certified by an organization approved by the appropriate state authority or accredited by the American Bar Association, and (2) the name of the certifying organization is clearly identified in the communication.
Here, simply practicing personal-injury law for 40 years does not permit the attorney to state that he is a certified specialist in personal-injury law. Rather, the attorney may advertise that he is a certified specialist because he was certified by a certifying organization approved by the American Bar Association. Any communication must clearly identify the name of the certifying organization.
Answer option C is incorrect. Under the Model Rules of Professional Conduct, a lawyer may not state or imply that he is a certified specialist in a given area unless (1) the lawyer is certified by an organization approved by the appropriate state authority or accredited by the American Bar Association, and (2) the name of the certifying organization is clearly identified in the communication.
Here, the fact that the attorney was waived into the bar in the new state does not affect the analysis. The attorney is certified as a personal-injury specialist by an organization approved by his previous state of practice and by the American Bar Association. The attorney may therefore communicate in the new state that he is certified as a personal-injury specialist because the certifying organization is approved by the American Bar Association. Any communication must clearly identify the name of the certifying organization.
Answer option D is incorrect. Under the Model Rules of Professional Conduct, a lawyer may not state or imply that he is a certified specialist in a given area unless (1) the lawyer is certified by an organization approved by the appropriate state authority or accredited by the American Bar Association, and (2) the name of the certifying organization is clearly identified in the communication.
Here, the attorney does not need to seek certification from an organization approved by the new state. The attorney is certified as a personal-injury specialist by an organization approved by his previous state of practice and by the American Bar Association. The attorney may therefore communicate in the new state that he is certified as a personal-injury specialist because the certifying organization is approved by the American Bar Association. Any communication must clearly identify the name of the certifying organization.
An attorney placed an advertisement in a local newspaper stating that her practice was “exclusively family law.” Although the attorney had practiced family law for over 10 years, she had never been certified as a specialist by any state-approved family-law organization.
Is the attorney subject to discipline under the Model Rules of Professional Conduct?
A: Yes, because the attorney was not certified as a specialist by any state-approved organization.
B: Yes, because the advertisement did not clearly state that the attorney was not certified as a specialist by a state-approved organization.
C: No, because the attorney may indicate in an advertisement that she practices only in certain areas of law.
D: No, because the attorney had practiced family law for over 10 years.
C: No, because the attorney may indicate in an advertisement that she practices only in certain areas of law.
Answer option C is correct. Under Model Rule of Professional Conduct 7.2, an attorney may communicate that she concentrates, specializes, or practices exclusively in a particular field. However, an attorney may not state or imply that she is a certified specialist unless she has been certified by an approved authority.
Here, the attorney’s advertisement does not falsely claim that she is a certified specialist, only that she practices family law exclusively. This type of communication to the public is permissible.
Answer option A is incorrect. Under Model Rule of Professional Conduct 7.2, an attorney may communicate that she concentrates, specializes, or practices exclusively in a particular field. However, an attorney may not state or imply that she is a certified specialist unless she has been certified by an approved authority.
Here, the attorney’s advertisement does not falsely claim that she is a certified specialist, only that she practices family law exclusively. This type of communication to the public is permissible.
Answer option B is incorrect. Under Model Rule of Professional Conduct 7.2, an attorney may communicate that she concentrates, specializes, or practices exclusively in a particular field. However, an attorney may not state or imply that she is a certified specialist unless she has been certified by an approved authority.
Here, the attorney’s advertisement does not falsely claim that she is a certified specialist, only that she practices family law exclusively. This type of communication to the public is permissible. The attorney is not required to communicate that she is not a certified specialist in family law.
Answer option D is incorrect. Under Model Rule of Professional Conduct 7.2, an attorney may communicate that she concentrates, specializes, or practices exclusively in a particular field. However, an attorney may not state or imply that she is a certified specialist unless she has been certified by an approved authority.
Here, the attorney’s advertisement does not falsely claim that she is a certified specialist, only that she practices family law exclusively. This type of communication to the public is permissible, regardless of how much experience the attorney has in family law.
An attorney was drafting copy for an advertisement to run in a local newspaper. The attorney had practiced in labor and employment law for 10 years. The attorney was certified as a specialist in labor and employment law by the National Employment Lawyers Association (NELA), which was accredited by the American Bar Association. However, the state where the attorney was licensed and planned to advertise had not approved NELA as a certifying organization. The draft copy included the attorney’s name and contact information and that the attorney was “certified as a specialist in labor and employment law.”
Does the draft copy comport with the Model Rules of Professional Conduct?
A: Yes, because NELA is accredited by the American Bar Association.
B: Yes, because the attorney has practiced labor and employment law for over five years.
C: No, because NELA is not approved by the state where the attorney is licensed to practice.
D: No, because the draft copy does not clearly identify NELA as the certifying organization
D: No, because the draft copy does not clearly identify NELA as the certifying organization
Answer option D is correct. Under the Model Rules of Professional Conduct, a lawyer may not state or imply that he is a certified specialist in a given area, unless (1) the lawyer is certified by an organization approved by the appropriate state authority or accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication.
Here, the attorney is certified as a specialist in labor and employment law by NELA, which is accredited by the American Bar Association. Therefore, the attorney is free to communicate the specialization. However, any communication must clearly identify the certifying organization. The attorney’s draft copy does not comply with the Model Rules, because it does not clearly identify NELA. The attorney should amend the copy to clearly identify the certifying organization.
Answer option A is incorrect. Under the Model Rules of Professional Conduct, a lawyer may not state or imply that he is a certified specialist in a given area, unless (1) the lawyer is certified by an organization approved by the appropriate state authority or accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication.
Here, although the attorney is certified by NELA, his draft advertisement does not identify NELA as the certifying organization. The attorney’s draft copy does not comply with the Model Rules, because it does not clearly identify NELA. The attorney should amend the copy to clearly identify the certifying organization.
Answer option B is incorrect. Under the Model Rules of Professional Conduct, a lawyer may not state or imply that he is a certified specialist in a given area, unless (1) the lawyer is certified by an organization approved by the appropriate state authority or accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication.
Here, it is irrelevant that the attorney has practiced labor and employment law for over five years. The attorney may advertise that he is a certified specialist only if he is certified by an approved organization and identifies the certifying organization in the advertisement. Here, although the attorney is certified by NELA, his draft advertisement does not identify NELA as the certifying organization. The attorney’s draft copy does not comply with the Model Rules, because it does not clearly identify NELA. The attorney should amend the copy to clearly identify the certifying organization.
Answer option C is incorrect. Under the Model Rules of Professional Conduct, a lawyer may not state or imply that he is a certified specialist in a given area, unless (1) the lawyer is certified by an organization approved by the appropriate state authority or accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication.
Any certifying organization must either be accredited by the American Bar Association or approved by the appropriate state authority. Here, NELA is accredited by the American Bar Association. Therefore, it is irrelevant that NELA is not approved by the state as a certifying organization. Therefore, the attorney may advertise that he is a certified specialist, but he must include the name of the certifying organization in the advertisement.
