ch.3. part 1 advertising

8/9/2019 Ch.3. Part 1 Advertising

1/75


2/75

MRPC 7.3 Direct Contact withProspective Clients

Q. 1 p. 195

May a lawyer without request by her

former clients friends and family

approach them to solicit new

business!

"Ch. 3 part 1 solicitation andadvertising


3/75

". 3.1 Is the Attorney subject to discipline if

she calls Testatrix and advises her of the new

IRS ruling and the need to revise the will?

(A) Yes, if Attorney has any reason tobelieve that Testatrix has another lawyer.

(B) Yes, because Attorney would besoliciting legal business from a personwho is not a current client.

() !o, provided Attorney does not

thereafter prepare a new will forTestatrix.

(") !o, because Testatrix is a former

client of Attorney.Ch. 3 part 1 solicitation andadvertising 3


4/75

MRPC 7.3 Direct Contact withProspective Clients

#n $hrali% the court says there is acompelling state interest inpreventing fraud overreaching etc.

&herefore the state may bar directin'person contact without proof ofharm.

(ome states bar unsolicited contactwithin 3) days of an accident. *oesthat go too far!

+Ch. 3 part 1 solicitation andadvertising


5/75

Q. 3-2, p. 202 – Primus non-proite!ception May a lawyer actively solicit clients

to challenge a state law requiringsterili,ation of pregnant mothers as

a condition of receipt of Medicaid!

- /es

0 ' o

5Ch. 3 part 1 solicitation andadvertising


6/75

Q. 3-2, p. 202 – Primus non-proite!ception #s the 2ehnquist dissent correct that

ideological passion may lead toabuse ust as does material self

interest! (ome non'pro4ts may be awarded

counsel fees for successful civil rights

claims. #s rimus court correct that such a

prospect is di6erent from soliciting

for a personal inury case as in$hrali%!7

Ch. 3 part 1 solicitation andadvertising


7/75

Commerciali,ation of the

profession!

"#vertisin$

Ch. 3 part 1 solicitation andadvertising 8


8/75

%he limits an# purposes o control oattorne& a#vertisin$

Why do we generally bar truthful

claims of specialization?

Does certication solve the

problem or create new ones?



9/75

9

"#vertisin$

Champerty and the :uild meets (C$&;( 1985 ' :oldfarb v.


10/75

1)

"#vertisin$

#$%& ' entral udson as * +lec.orp. v. ublic -erv.ommn of !ewYor/ ++8 ;.(. 558 2estrictions

limiting commercial speech =1> thespeech is protected by the ?irst-mendment@ ="> there is a

substantial state interest to beachieved by the restriction@ =3> therestriction materially advances the

state interest@ and =+> the restrictionCh. 3 part 1 solicitation andadvertising


11/75

11

"#vertisin$

195 ' Aauderer v. $hio *isciplinaryComm. +81 ;.(. 7"

&argeted print advertising solicitationpermissible =*al%on (hield cases>



12/75

1"

"#vertisin$

19 (hapero v. Bentuc%y +7 ;.(.+77

&argeted direct mail solicitation of

mortgage foreclosure defendants isprotected commercial speech under?irst -mendment

199+ #bane, v. ?lorida *ept. $f 0us. rofDl 2egulation 51" ;( 137 (tate may ban only false deceptive

or misleading commercial speechCh. 3 part 1 solicitation andadvertising


13/75

Soliciting #usiness, sharing fees an!

a!vertising

2eferral fees 2unners

ercentage arrangements with non'attorney sta6 2eferral arrangements with non'

lawyers 0ona ?ide -dvertising



14/75

Q. 3-3 p. 2'( )overnor announcesreturn to practice to law&ers, past

clients, rien#s (A) Yes, because the mailing included persons who had not been his clients.

(B) Yes, because his service as governor

is unrelated to his ability as a lawyer.

(C) No, because the information in the

announcement was true.

()No, because the announcement does

not display the words !Advertising

"aterial.#Ch. 3 part 1 solicitation andadvertising 1+


15/75

*an$ + hitmer p. 2'

-dvertising to the general public Ehat are the bounds!

Fow did Aang and Ehitmer run afoulof the limits!

Eas suspension warranted!



16/75

Q. 3-(, p. 2' $s the attorney sub%ect todiscipline&

(A) Yes, because the commercial created anun%ustified e'pectation about the results that

could be achieved in court.

(B) Yes, because the commercial implied that

the attorney had successfully argued a case

to a %ury.

(C) No, because commercial speech is

protected under the irst Amendment.

() No, because the commercial contained an

e'press disclaimer about the results a client

could e'pect. Ch. 3 part 1 solicitation andadvertising 17


17/75

Q. 3-, p. 22 Call – ees mi$ht e lowerthan &ou thin/.

Is the advertisement proper? (A) Yes if the name and office address of

the lawyer or law firm is included.

(B) No, unless Attorneys fees are lowerthan those generally charged in the area

where she practices.

(C) No, because she used a professionalactor for the television advertisement.

() No, if she ma*es a charge for the

initial consultation.Ch. 3 part 1 solicitation andadvertising 18


18/75

Q. 3- p. 22 Client en#orsement - 1'0 Mrecover&

$s the attorney sub%ect to discipline & (A) Yes, because the advertisement is

li*ely to create an un%ustified e'pectation

about the results the attorney will be ableto achieve and is therefore misleading.

(B) Yes, because the attorneys

advertisement contains a clienttestimonial.



19/75

Q. 3- p. 22 Client en#orsement (C) No, because the plaintiff prepared the

entire statement without any involvement

by the attorney.

() No, because the result obtained in the

plaintiffs case was reported accurately,

and the plaintiff believed that everything

she said about the attorney was true.



20/75

Q. 3-7 p. 227 an at the count& air. sattorne& su4ect to #iscipline5

(A) +lacing copies of the flyer in the booth ofeach artist.

(B) $ncluding a retainer agreement on the

bac* of the flyer. (C) +ar*ing the van with the sign on it at

the fair entrance.

() A B. (-) All of the above.

() None of the above.Ch. 3 part 1 solicitation andadvertising ")


21/75

Q. 3-6 p. 226 aw 8irm o "lpha, 9eta +)amma

$s Alpha sub%ect to discipline& (A) Yes, because Beta was deceased when

Alpha made the arrangement with amma.

(B) Yes, because amma is not a partner of Alpha.

(C) No, because Alpha and Beta were

partners at the time of Betas death. () No, because amma is paying a share of

the rent and office e'penses.

Ch. 3 part 1 solicitation andadvertising "1

Q 3 : ;tate restrictions on testimonials


22/75

Q. 3-: ;tate restrictions on testimonials,attention $ettin$ techni


23/75

Challen$es to restrictions

on attorne& a#vertisin$

"3Ch. 3 part 1 solicitation andadvertising


24/75

evels o scrutin&

(tandard =rational basis> =ethics regs> ' balance the rights of the attorneys

against the governmentGs legitimate

interest in regulating the activity inquestion

#ntermediate =commercial speech>

(trict =political speech racegender!>

' compelling governmental interest

' narrowly tailored "+Ch. 3 part 1 solicitation andadvertising


25/75

%he Central =u#son %est

entral udson test, "efendantsmust

(1) assert that there is a

substantial tate interest to beachieved by the restriction

(!) demonstrate that the

restriction materially advancesthe state interest

(") establish that the restriction

is narrowly drawn# "5Ch. 3 part 1 solicitation andadvertising


26/75

0This burden is not satis1ed by merespeculation or con2ecture3 rather,4the defendant5 . . . must

demonstrate that the harms it recitesare real and that its restriction will infact alleviate them to a material

degree.0 Alexander v. ahill

"7

Central $u!son% a fact to #e roven



27/75

apobianco v. -ummers, 677 8.6d99$ (:th ir. ;&&


28/75

Q. 3-'0 p. 2( – s a$reement improper5 (A) Yes, because she as*ed the owner to

place ads for the firm in the restaurant. (B) Yes, because the agreement provided

something of value to the restaurant owner in

return for recommending the attorneysservices.

(C) No, because she did not pay the

restaurant owner for the referrals. ()No, because the agreement is not

e'clusive, and the clients and customers will

be informed of the e'istence and nature ofCh. 3 part 1 solicitation andadvertising "


29/75

>? ;upreme Court "ttorne& "#vertisin$Committee @pinion 30

$an%ruptcy lawyers send direct

mail solicitations to defendants

named in home foreclosure

complaints

"9Ch. 3 part 1 solicitation andadvertising


30/75

>? "#vertisin$ Committee @pinion 30

HF$E CF-&I2 13 2$&IC&( /$; 1. (heri6Gs (ales are stopped.

". Mortgage foreclosure is stopped. 3. -uto repossession is stopped. +. ;tility shut o6s are stopped.

5. JevyGs attachments are stopped. 7. Creditor harassment is stopped.

Ch. 3 part 1 solicitation andadvertising 3)


31/75

31

Man#ate# >otice

$CI &he decision to 4le ban%ruptcy is a

serious choice. $an%ruptcy is not

for everyone. #t is a drasticremedy that can a&ect yourcredit for many years and willa6ect your ability to use the

ban%ruptcy code at a future timewhen you may need it more.



32/75

3"

Man#ate# >otice

'he maority of chapter 1" plans arenever successfully completed andthe funds paid do not cure themortgage arrears or allow redemption

of property.

;pon 4ling a ban%ruptcy you may losecontrol of your property and you may

not dismiss a ban%ruptcy proceedingwithout court approval once it isled#



33/75

33

Man#ate# >otice

&he decision of when to 4le aban%ruptcy is also crucial anddependent on your individualcircumstances. $e sure to discussthe potential pitfalls ofban%ruptcy as well as itsadvantages with any

professional you areconsidering.



34/75

3+

'ttorney '!vertising (ui!eline 3

)ritten Solicitation to *eresent Clients

in Bankrutcy -ttorneys who see% clients by written solicitation fromdefendants in civil actions including foreclosure actions forwhich a ban%ruptcy proceeding is a possible resolutionmustK

1> personally verify the accuracy of all statements

contained in the solicitation letter including the name andaddress of the addressee and the speci4c nature of the litigation which

must be recited in the body of the letter@ "> advise the prospective client that his or her name and

the nature of the litigation was obtained by an appropriate

inquiry under 2ule 1K3@ 3> provide the salutation to the individual to whom the

letter is being sent@



35/75

35


)ritten Solicitation to *eresent Clients in

Bankrutcy ) include information su*cient to inform

an unsophisticated individual of thepotential pitfalls and disadvantages of aban%ruptcy proceeding as follows+

'he decision to le for ban%ruptcy is aserious choice# It is a remedy that may a&ect your credit

and may a&ect your ability to use theban%ruptcy code at a future time#

$e sure to discuss the advantages anddisadvantages of ban%ruptcy with anyprofessional whom you are considering torepresent you#



36/75

37


)ritten Solicitation to *eresent Clients

in Bankrutcy 5> not attempt to indicate a specialrelationship eLpertise eLperience or%nowledge which will or may provide amore favorable result than other licensedew ersey attorneys

7> not raise unusti4ed eLpectations or uselanguage or format susceptible of undulyenticing a person because of possibleeconomic or personal consequences of a

udgment@ and 8> not raise false hope for relief

inapplicable to the individual personDscircumstancesCh. 3 part 1 solicitation andadvertising


37/75

?u#icial An#orsement N&he inescapable conclusion is . . . that

plainti6s achieved a spectacular resultwhen the 4le was in the hands of Mr.*wyer. . . . Mr. *wyer was a 4erce if

sometimes not disinterested advocatefor his clients and through an o6ensiveand defensive motion practice andthrough other discovery methodsmolded the case to the point where itcould besuccessfully resolved.O

'''Fon. Eilliam J. Eertheimer .(.C.Ch. 3 part 1 solicitation andadvertising 38


38/75

>? "#vertisin$ )ui#eline 3

-n attorney or law 4rm may notinclude on a website or otheradvertisement a quotation oreLcerpt from a court opinion =oral or

written> about the attorneyDs abilitiesor legal services.

-n attorney may however present

the full teLt of opinions includingthose that discuss the attorneyDslegal abilities on a website or other

advertisement.Ch. 3 part 1 solicitation andadvertising 3


39/75

Revise# )ui#eline 3

-n attorney or law 4rm may includeon a website or other advertisementan accurate quotation or eLcerptfrom a court opinion =oral or written>about the attorneyGs abilities or legalservices.

&he following disclaimer must be

prominently displayed in proLimity tosuch quotation or eLcerptK H &hiscomment made by a udge in a

particular case is not anCh. 3 part 1 solicitation andadvertising 39


40/75

+) +)

+-*M'T+- 'B-T

L/('L S/*0+C/SModel 2ules of rofessional

Conduct



41/75

+1

;u$$este# Mo#el Rule 7.0 2. 8.) 'ruthful, informative advertising by

attorneys is protected commercial speechand may not be unreasonably infringed orburdened.

omment K

N#t is a matter of public interest that Pprivateeconomic decisions in the aggregate beintelligent and well informed. &o this end the freeRow of commercial information is indispensable.O.

=irginia Bd. of harmacy v. =a. iti>ens ouncil


42/75

+" +"

*ule .1 Co22unications

Concerning a Layer4s Services

- lawyer shall not ma%e a false ormisleading communication about thelawyer or the lawyerGs services.

- communication is false or misleading if itof fact or law contains a materialmisrepresentation or omits a fact

necessary to ma%e the statementconsidered as a whole not materiallymisleading.



43/75

+3 +3

Rule 7.2 "#vertisin$ =a> S a lawyer may advertise

servicesSP0;& =b> - lawyer shall not give anything

of value to a person forrecommending the lawyerGs servicesT

eLcept that a lawyer may =1> pay the reasonable costs of

advertisements or

communications ="> pay the usualcharges of a legal service plan or anot'for'pro4t or quali4ed lawyerreferral service. TT



44/75

++ ++

Rule 7.2B "#vertisin$

(") pay for a law practice inaccordance with -ule 1#1.

&he problem of goodwill



45/75

+5 +5

Rule 7.2 B "#vertisin$ –Reciprocal "$reements () refer clients to another

lawyer or a nonlawyer

professional pursuant to an

agreement/ that provides for

the other person to refer clients

or customers to the lawyer if



46/75

+7s +7

Rule 7.2 B "#vertisin$

(i) the reciprocal referral

agreement is not e0clusive, and

(ii) the client is informed of the

e0istence and nature of the

agreement



47/75

MRPC 7.3 Direct Contact withProspective Clients Comment P1 li%e $hrali% v. $hio

(tate 0ar argues that Nthere is apotential for abuse inherent in direct

in'person live telephone or real'timecontact by a lawyer with aprospective client %nown to need

legal services.O #s a broad bar on such contact really

necessary! ;nder whatcircumstances!

+8


* l 3 5i t C t t ith


48/75

+Ch. 17 ' Mar%eting Jegal (ervices +

*ule .3 5irect Contact ith

Prosective Clients (a) lawyer shall not by in2person,

live telephone or real2time electroniccontact solicit professional

employment from a prospective clientwhen a signicant motive for thelawyer3s doing so is the lawyer3specuniary gain

40cept if the person contacted+ (1) is a lawyer or (!) has a family, close personal, or

prior professional relationship withCh. 3 part 1 solicitation andadvertising

* l 3 5i t C t t ith


49/75

+9 +9

*ule .3 5irect Contact ith

Prosective Clients (b) lawyer shall not solicit

professional employment from aprospective client/ if+

(1) the prospective client hasmade %nown to the lawyer adesire not to be solicited by the

lawyer5 or (!) the solicitation involves

coercion, duress or harassment#Ch. 3 part 1 solicitation andadvertising


50/75

5) 5)

R. 7.3 Direct Contact with ProspectiveClients

=c> Ivery written recorded or electroniccommunication from a lawyer solicitingprofessional employment from aprospective client %nown to be in need oflegal services in a particular matter shallinclude the words

Hdvertising 6aterial7 on the outsideenvelope/ and

at the beginning and ending of anyrecorded or electronic communication unless the recipient =is a lawyer family

etc.> speci4ed in paragraphs =a>=1> or =a>

=">.Ch. 3 part 1 solicitation andadvertising


51/75

51 51

*ule .6 Co22unication of iel!s of

Practice an! Seciali7ation

=a> lawyer may communicate thefact that the lawyer does or does notpractice in particular elds of law.

=b> - lawyer admitted to engage in patentpractice before the ;nited (tates atentand &rademar% $Uce may use thedesignation Hatent -ttorneyH or asubstantially similar designation.

=c> - lawyer engaged in -dmiralty practicemay use the designation H-dmiraltyHHroctor in -dmiraltyH or a substantiallysimilar designation.



52/75

5"Ch. 17 ' Mar%eting Jegal (ervices 5"

*ule .6 Co22unication of iel!s of

Practice an! Seciali7ation

=d> - lawyer shall not state or imply that alawyer is certi4ed as a specialist in aparticular 4eld of law unlessK

=1> the lawyer has been certi4ed as aspecialist by an organi,ation that has beenapproved by an appropriate stateauthority or that has been accredited by

the -merican 0ar -ssociation@ and ="> the name of the certifying organi,ation

is clearly identi4ed in the communication.



53/75

The #an on 2islea!ing, unsuorta#le

state2ents of fact



54/75

MRPC. 7.'

- lawyer shall not ma%e false ormisleading communication about thelawyerDs services.

- communication is false ormisleading if it contains a materialmisrepresentation of fact or law

or omits a fact necessary to ma%ethe statement considered as a wholenot materially misleading.

5+5+Ch. 3 part 1 solicitation andadvertising


55/75

"9" R. 7.' Comment 2E

- truthful statement is alsomisleading if there is a substantialli%elihood that it will lead a

reasonable person to formulate ' a speci4c conclusion about the

lawyer or the lawyerDs services

' for which there is no reasonablefactual foundation

Ch. 17 ' Mar%eting Jegal (ervices 5555Ch. 3 part 1 solicitation andadvertising

>F Part '200 Rules o


56/75

>F Part '200 – Rules oProessional con#uct anG Client Testimonials Portrayal of a Judge Irrelevant Techniques Nicknames, Mottos, and Trade

Names


'le8an!er v. Cahill 9.5..: ;


57/75

9 = -leLander CatalanoGs commercials often

contained

ingles and special e6ects including wisps of

smo%e and blue electrical currents surrounding

the 4rmGs name.

4ctional or comical scenes.

;sed the slogan Hthe heavy hitters.N

ortrayed its attorneys as giants towering overdowntown buildings depicting its attorneys

counseling space aliens concerning an insurance

dispute and representing its attorneys running as58Ch. 3 part 1 solicitation andadvertising


58/75

%ra#e names

&as% ?orce 2eport regarding tradenames

&he Committee endorsedS

continuation of the ban on use oftrade names/

trade names are far too li%ely to

be false, deceptive andmisleading to consumers of legalservices.



59/75

Clearl& improper

&he following if used in publiccommunications or communicationsto a prospective client are li%ely to

be false deceptive or misleadingK . . .a communication that states orimplies that the lawyer has the

ability to in8uence improperly acourt, court o*cer,governmental agency orgovernment o*cial # # # #



60/75

7)Ch. 17 ' Mar%eting Jegal (ervices 7)

;uper aw&ers

-ny problem here!



61/75

71Ch. 17 ' Mar%eting Jegal (ervices 71

aw&ers with a #ierence

Eilent, :oldman (pit,er is a name thathas become synonymous with law 4rmeLcellence and a commitment to ma%e adi6erence for the businesses andindividuals it serves.

9racticing law, teaching the law, andshaping the law is what we do.

-ll of us at Eilent, :oldman (pit,er are

dedicated to maintaining the reputationservice and results our clients have cometo eLpect and that is our :ommitment to6a%e a Di&erence.



62/75

7"Ch. 17 ' Mar%eting Jegal (ervices 7"

" e$en# in his own min#5

(tuart Foberman amed New ersey 0estJawyers 0an%ing Jawyer of the /earO

Eoodbridge Ee are pleased toannounce that (tuart -. Fobermanshareholder of Eilent, :oldman (pit,er.-. =NEilent,O> has been named the New

ersey Best @awyers 0an%ing Jawyer of the /earO for "))9 by 0est Jawyers the oldestand most respected peer'reviewpublication in the legal profession.


http://www.wilentz.com/Attorney_Bio.aspx?ID=888http://www.wilentz.com/Attorney_Bio.aspx?ID=888


63/75


ots o e$en#s

Eilent, :oldman (pit,er .-.-nnounces 5) Jawyers #ncluded on "))9ew ersey (uper JawyersW and 2ising(tarsW Jists

39 of our attorneys have been selected forinclusion on the "))9 !ew ersey -uper@awyers list

11 of our attorneys were selected forinclusion on the "))9 ising -tars list asdesignated by@aw * olitics maga,ine.



64/75

7+Ch. 17 ' Mar%eting Jegal (ervices 7+

Ch. 3 part 1 solicitation and

advertising

%=; ; >@% A)" "DCA


65/75


%=; ; >@% A)" "DCA

-ny problem here!


advertising


66/75



advertising


67/75

%ra#e names an# mottos &eam Jaw ' *onDt ust hire a lawyer

hire a team of lawyers &he (uper Jawyers Ee are lawyersD lawyers $ne of Ds &op 1)) &he man who couldnDt be bought &radition #nnovation #mpact racticing law teaching the law and

shaping the law is what we do

78


advertising


68/75

MilavetH v. Inite# ;tates

7


advertising

'' I ; C J 2 Restrictions on #et relie


69/75

'' I.;.C. J 2. Restrictions on #et reliea$encies

(a) - debt relief agency shall notX () advise an assisted person or

prospective assisted person to incur more

debt ' in contemplation of such person 4ling a

case under this title or ' to pay an attorney or ban%ruptcy petition

preparer fee or charge for servicesperformed as part of preparing for orrepresenting a debtor in a case under thistitle.

79


advertising


70/75

Milavet7 an! Central $u!son

- restriction on speech is permittedonly ifK

1> a substantial state interest

"> is materially advanced 3> by a narrowly tailored measure ow does ## ?- 9;: (a) (


71/75

@verroa#5

Y 5"7=a>=+> is unconstitutionallyoverbroad as applied to attorneysfalling within the de4nition of debt

relief agencies because it is notnarrowly tailored nor narrowly andnecessarily limited to restrict only

that speech that the government hasan interest in restricting.

81


advertising


72/75

@verroa#5

#nstead Y 5"7=a>=+> prohibitsattorneys classi4ed as debt reliefagencies from advising any assisted

person to incur any additional debt incontemplation of ban%ruptcy@ thisprohibition would include advice

constituting prudent pre'ban%ruptcyplanning that is not an attempt tocircumvent abuse or undermine theban%ruptcy laws.

8"


advertising


73/75

@verroa#5

(ection 5"7=a>=+> as writtenprevents attorneys from ful4llingtheir duty to clients to give them

appropriate and bene4cial advice nototherwise prohibited by the0an%ruptcy Code or other applicable

law.

83


advertising


74/75

Dissent

#f an attorney advises a debtor tore4nance his home to lower mortgagepayments or to purchase a reliable car to

enable him to pay o6 his debts then adebtor following that advice would su6erno damage. &here is no reason to believethat a client could recover the remittal of

attorneyGs fees or that a court would 4nd acivil penalty HappropriateH as a remedy forlegal advice that bene4ts both the debtorand his creditors.

8+


advertising

" i i 5


75/75

" narrowin$ construction5

-ccording to the government Y5"7=a>=+> should be interpreted asmerely preventing an attorney from

advising an assisted person.. to ta%eon more debt in contemplation ofban%ruptcy when the incurrence of

such debt is done with the intent tomanipulate the ban%ruptcy systemengage in abusive conduct or ta%eunfair ad antage of the ban%ruptc

ch.3. part 1 advertising

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