Ch.3. Part 1 Advertising

Ch.
3 The Business, Technology &

Marketing of Legal Services
Part 1 Finding clients
George W. Conk
Adjunct Professor of Law and
Senior Fellow Stein Center for Law & Ethics
gconk@law.fordham.edu
Room 8-122
Ch. 3 part 1 solicitation and
advertising
MRPC 7.3 Direct Contact with

Prospective Clients
Q. 1 p. 195
May a lawyer without request by her

former clients, friends, and family
approach them to solicit new
business?
advertising
Q. 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 to

believe that Testatrix has another lawyer.
(B) Yes, because Attorney would be
soliciting legal business from a person
who is not a current client.
(C) No, provided Attorney does not
thereafter prepare a new will for
Testatrix.
(D) No, because Testatrix is a former
client of Attorney.
advertising

Prospective Clients
In Ohralik the court says there is a

compelling state interest in
preventing fraud, overreaching, etc.
Therefore the state may bar direct
in-person contact without proof of
harm.
Some states bar unsolicited contact
within 30 days of an accident. Does
that go too far?
advertising
Q. 3-2, p. 202 Primus non-profit

exception
May a lawyer actively solicit clients

to challenge a state law requiring
sterilization of pregnant mothers as
a condition of receipt of Medicaid?
A Yes
B - No
advertising
Q. 3-2, p. 202 Primus non-profit

exception
Is the Rehnquist dissent correct that

ideological passion may lead to
abuse just as does material self
interest?
Some non-profits may be awarded
counsel fees for successful civil rights
claims.
Is Primus court correct that such a
prospect is different from soliciting
for a personal injury case as in
advertising
Advertising
Commercialization of the
profession?

advertising
The limits and purposes of control of

attorney advertising
Why do we generally bar truthful
claims of specialization?
Does certification solve the

problem or create new ones?

advertising
Advertising
Champerty and the Guild meets SCOTUS

1975 - Goldfarb v. Virginia State Bar, 421
U.S. 773
Minimum fee schedule violates Sherman
anti-trust act
1977 Bates v. Arizona State Bar 433 U.S.
350 State cannot bar truthful
advertisement of availability and terms of
routine legal services
1978 - Ohralik v. Ohio State Bar 436 U.S.
447
Bar on in-person
solicitation of PI9 case
advertising
Advertising
1980 - Central Hudson Gas & Elec.

Corp. v. Public Serv.Commn of New
York, 447 U.S. 557 Restrictions
limiting commercial speech (1) the
speech is protected by the First
Amendment; (2) there is a
substantial state interest to be
achieved by the restriction; (3) the
restriction materially advances the
state interest; and (4) the restriction
advertising
10
Advertising
1985 - Zauderer v. Ohio Disciplinary

Comm. 471 U.S. 628
Targeted print advertising solicitation
permissible (Dalkon Shield cases)

advertising
11
Advertising
1988 Shapero v. Kentucky 486 U.S.

466
Targeted direct mail solicitation of
mortgage foreclosure defendants is
protected commercial speech under
First Amendment
1994 Ibanez v. Florida Dept. Of Bus.
& Profl Regulation 512 US 136
State may ban only false, deceptive,
or misleading commercial speech
advertising
12
Soliciting business, sharing fees and

advertising
Referral fees
Runners
Percentage arrangements with nonattorney staff
Referral arrangements with nonlawyers
Bona Fide Advertising
advertising
13
Q. 3-3 p. 214 Governor announces

return to practice to lawyers, past
clients, friends
(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.
(D)No, because the announcement does
not display the words Advertising
Material.
advertising
14
Zang & Whitmer p. 215
Advertising to the general public

What are the bounds?
How did Zang and Whitmer run afoul
of the limits?
Was suspension warranted?

advertising
15
Q. 3-4, p. 215 Is the attorney subject to

discipline?
(A) Yes, because the commercial created an
unjustified expectation 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 jury.
(C) No, because commercial speech is
protected under the First Amendment.
(D) No, because the commercial contained an
express disclaimer about the results a client
could expect.
advertising
16
Q. 3-5, p. 225 Call fees might be lower

than you think.
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 lower
than those generally charged in the area
where she practices.
(C) No, because she used a professional
actor for the television advertisement.
(D) No, if she makes a charge for the
initial consultation.
advertising
17
Q. 3-6 p. 226 Client endorsement - $10 M

recovery
Is the attorney subject to discipline ?

(A) Yes, because the advertisement is
likely to create an unjustified expectation
about the results the attorney will be able
to achieve and is therefore misleading.
(B) Yes, because the attorneys
advertisement contains a client
testimonial.
advertising
18
Q. 3-6 p. 226 Client endorsement

(C) No, because the plaintiff prepared the
entire statement without any involvement
by the attorney.
(D) 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.

advertising
19
Q. 3-7 p. 227 Van at the county fair. Is

attorney subject to discipline?
(A) Placing copies of the flyer in the booth of
each artist.
(B) Including a retainer agreement on the
back of the flyer.
(C) Parking the van with the sign on it at
the fair entrance.
(D) A & B.
(E) All of the above.
(F) None of the above.
advertising
20
Q. 3-8 p. 228 Law Firm of Alpha, Beta &

Gamma
Is Alpha subject to discipline?
(A) Yes, because Beta was deceased when
Alpha made the arrangement with Gamma.
(B) Yes, because Gamma is not a partner of
Alpha.
(C) No, because Alpha and Beta were
partners at the time of Betas death.
(D) No, because Gamma is paying a share of
the rent and office expenses.
advertising
21
Q. 3-9 State restrictions on testimonials,

attention getting techniques, nicknames,
etc.
(A) The Court upholds both the content
restrictions and the moratorium.
(B) The Court upholds the content
restrictions, but not the moratorium.
(C) The Court upholds the moratorium, but
not the content restrictions.
(D) The Court enjoins both the content
restrictions and the moratorium.
advertising
22
Challenges to restrictions
on attorney advertising

advertising
23
Levels of scrutiny
Standard (rational basis) (ethics regs)

- balance the rights of the attorneys
against the government's legitimate
interest in regulating the activity in
question
Intermediate (commercial speech)
Strict (political speech, race,
gender?)
- compelling governmental interest
- narrowly tailored
advertising
24
The Central Hudson Test
Central Hudson test, Defendants

must
(1) assert that there is a
substantial State interest to be
achieved by the restriction
(2) demonstrate that the
restriction materially advances
the state interest
(3) establish that the restriction
is narrowly drawn.
advertising
25
Central Hudson: a fact to be proven
"This burden is not satisfied by mere

speculation or conjecture; rather,
[the defendant] . . . must
demonstrate that the harms it recites
are real and that its restriction will in
fact alleviate them to a material
degree."
Alexander v. Cahill
advertising
26
Central Hudson: a fact to be proven
Capobianco v. Summers, 377 F.3d

559 (6th Cir. 2004)
finding adequate Tennessee's
reliance on
-newspaper articles documenting
solicitation problems related to
chiropractors
-declarations of solicited individuals
-articles from scientific and business
publications.
advertising
27
Q. 3-10 p. 245 Is agreement improper?
(A) Yes, because she asked 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 attorneys
services.
(C) No, because she did not pay the
restaurant owner for the referrals.
(D)No, because the agreement is not
exclusive, and the clients and customers will
be informed of the existence and nature of
advertising
28
NJ Supreme Court Attorney Advertising

Committee Opinion 30
Bankruptcy lawyers send direct

mail solicitations to defendants
named in home foreclosure
complaints

advertising
29
NJ Advertising Committee Opinion 30
"HOW CHAPTER 13 PROTECTS YOU

1. Sheriff's Sales are stopped.
2. Mortgage foreclosure is stopped.
3. Auto repossession is stopped.
4. Utility shut offs are stopped.
5. Levy's, attachments are stopped.
6. Creditor harassment is stopped.
advertising
30
Mandated Notice
NOTICE
The decision to file bankruptcy is a
serious choice. Bankruptcy is not
for everyone. It is a drastic
remedy that can affect your
credit for many years and will
affect your ability to use the
bankruptcy code at a future time
when you may need it more.
advertising
31
Mandated Notice
The majority of chapter 13 plans are
never successfully completed and
the funds paid do not cure the
mortgage arrears or allow redemption
of property.
Upon filing a bankruptcy you may lose
control of your property and you may
not dismiss a bankruptcy proceeding
without court approval once it is
filed.
advertising
32
Mandated Notice
The decision of when to file a
bankruptcy is also crucial and
dependent on your individual
circumstances. Be sure to discuss
the potential pitfalls of
bankruptcy as well as its
advantages with any
professional you are
considering.
advertising
33
Attorney Advertising Guideline 3

Written Solicitation to Represent Clients
in Bankruptcy
Attorneys who seek clients by written solicitation from

defendants in civil actions, including foreclosure actions, for
which a bankruptcy proceeding is a possible resolution,
must:
1) personally verify the accuracy of all statements
contained in the solicitation letter, including the name and
address of the
addressee, and the specific nature of the litigation which
must be recited in the body of the letter;
2) advise the prospective client that his or her name and
the nature of the litigation was obtained by an appropriate
inquiry under
Rule 1:38;
3) provide the salutation to the individual to whom the
letter is being sent;
advertising
34

Written Solicitation to Represent Clients in
Bankruptcy
4) include information sufficient to inform

an unsophisticated individual of the
potential pitfalls and disadvantages of a
bankruptcy proceeding as follows:
The decision to file for bankruptcy is a
serious choice.
It is a remedy that may affect your credit
and may affect your ability to use the
bankruptcy code at a future time.
Be sure to discuss the advantages and
disadvantages of bankruptcy with any
professional whom you are considering to
represent you.
advertising
35

Written Solicitation to Represent Clients
in Bankruptcy
5) not attempt to indicate a special

relationship, expertise, experience or
knowledge which will or may provide a
more favorable result than other licensed
New Jersey attorneys
6) not raise unjustified expectations or use
language or format susceptible of unduly
enticing a person because of possible
economic or personal consequences of a
judgment; and
7) not raise false hope for relief
inapplicable to
the individual persons
advertising
36
circumstances
Judicial Endorsement
The inescapable conclusion is . . . that
plaintiffs achieved a spectacular result
when the file was in the hands of Mr.
Dwyer. . . . Mr. Dwyer was a fierce, if
sometimes not disinterested advocate
for his clients, and through an offensive
and defensive motion practice and
through other discovery methods
molded the case to the point where it
could be
successfully resolved.
---Hon. William L. Wertheimer, J.S.C.
advertising
37
NJ Advertising Guideline 3
An attorney or law firm may not

include, on a website or other
advertisement, a quotation or
excerpt from a court opinion (oral or
written) about the attorneys abilities
or legal services.
An attorney may, however, present
the full text of opinions, including
those that discuss the attorneys
legal abilities, on a website or other
advertisement.
advertising
38
Revised Guideline 3
An attorney or law firm may include,

on a website or other advertisement,
an accurate quotation or excerpt
from a court opinion (oral or written)
about the attorney's abilities or legal
services.
The following disclaimer must be
prominently displayed in proximity to
such quotation or excerpt: "This
comment, made by a judge in a
particular case, is not an
advertising
39
INFORMATION ABOUT
LEGAL SERVICES
Model Rules of Professional
Conduct

advertising
40
40
Suggested Model Rule 7.0
R. 7.0 Truthful, informative advertising by

attorneys is protected commercial speech
and may not be unreasonably infringed or
burdened.
Comment:
It is a matter of public interest that [private]
economic decisions, in the aggregate be
intelligent and well informed. To this end, the free
flow of commercial information is indispensable..
Virginia Bd. of Pharmacy v. Va. Citizens Council
425 U.S. 748 (1976)
Advertising performs an indispensable role in the
allocation of resources in a free enterprise
system because it makes it easier for consumers
to compare the price and quality offered by
competing suppliers.
advertising
Bates v. Arizona
State Bar, 433 U.S.41350, 364
Rule 7.1 Communications

Concerning a Lawyer's Services
A lawyer shall not make a false or

misleading communication about the
lawyer or the lawyer's services.
A communication is false or misleading if it

of fact or law contains a material
misrepresentation, or omits a fact
necessary to make the statement
considered as a whole not materially
misleading.
advertising
42
42
Rule 7.2 Advertising

(a) a lawyer may advertise
services[BUT]
(b) A lawyer shall not give anything
of value to a person for
recommending the lawyer's services*
except that a lawyer may
(1) pay the reasonable costs of
advertisements or
communications (2) pay the usual
charges of a legal service plan or a
not-for-profit or qualified lawyer
referral service. **
advertising
43
43
Rule 7.2(b) Advertising
(3) pay for a law practice in

accordance with Rule 1.17
The problem of goodwill

advertising
44
44
Rule 7.2 (b) Advertising

Reciprocal Agreements
(4) 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
advertising
45
45
Rule 7.2 (b) Advertising
(i) the reciprocal referral

agreement is not exclusive, and
(ii) the client is informed of the

existence and nature of the
agreement

advertising
s
46
46

Prospective Clients
Comment [1], like Ohralik v. Ohio

State Bar, argues that there is a
potential for abuse inherent in direct
in-person, live telephone or real-time
contact by a lawyer with a
prospective client known to need
legal services.
Is a broad bar on such contact really
necessary? Under what
circumstances?
advertising
47
Rule 7.3 Direct Contact with

Prospective Clients
(a) A lawyer shall not by in-person,

live telephone or real-time electronic
contact solicit professional
employment from a prospective client
when a significant motive for the
lawyer's doing so is the lawyer's
pecuniary gain
Except if the person contacted:
(1) is a lawyer or
(2) has a family, close personal, or
Ch. 3 part 1 solicitation
and
prior professional
relationship
with
advertising
Ch. 16 - Marketing Legal Services
48
48
Rule 7.3 Direct Contact with

Prospective Clients
(b) A lawyer shall not solicit

professional employment from a
prospective client if:
(1) the prospective client has
made known to the lawyer a
desire not to be solicited by the
lawyer; or
(2) the solicitation involves
coercion, duress or harassment.
advertising
49
49
R. 7.3 Direct Contact with Prospective

Clients
(c) Every written, recorded or electronic

communication from a lawyer soliciting
professional employment from a
prospective client known to be in need of
legal services in a particular matter shall
include the words
"Advertising Material" on the outside
envelope and
at the beginning and ending of any
recorded or electronic communication
unless the recipient (is a lawyer, family,
etc.) specified in paragraphs (a)(1) or (a)
(2).
advertising
50
50
Rule 7.4 Communication of Fields of

Practice and Specialization
(a) A lawyer may communicate the

fact that the lawyer does or does not
practice in particular fields of law.
(b) A lawyer admitted to engage in patent
practice before the United States Patent
and Trademark Office may use the
designation "Patent Attorney" or a
substantially similar designation.
(c) A lawyer engaged in Admiralty practice
may use the designation "Admiralty,"
"Proctor in Admiralty" or a substantially
similar designation.
advertising
51
51
Rule 7.4 Communication of Fields of

Practice and Specialization
(d) A lawyer shall not state or imply that a

lawyer is certified as a specialist in a
particular field of law, unless:
(1) the lawyer has been certified as a
specialist by an organization that has been
approved by an appropriate state
authority or that has been accredited by
the American Bar Association; and
(2) the name of the certifying organization
is clearly identified in the communication.
advertising
52
52
The ban on misleading, unsupportable

statements of fact

advertising
53
MRPC. 7.1
A lawyer shall not make false or

misleading communication about the
lawyers services.
A communication is false or
misleading if it contains a material
misrepresentation of fact or law,
or omits a fact necessary to make
the statement considered as a whole
not materially misleading.
advertising
54
54
ABA R. 7.1 Comment [2]
A truthful statement is also

misleading if there is a substantial
likelihood that it will lead a
reasonable person to formulate
- a specific conclusion about the
lawyer or the lawyers services
- for which there is no reasonable
factual foundation
advertising
55
55
NY Part 1200 Rules of

Professional conduct ban:
Client Testimonials
Portrayal of a Judge
Irrelevant Techniques
Nicknames, Mottos, and Trade
Names

advertising
56
Alexander v. Cahill (N.D.N.Y 2007)
Alexander & Catalano's commercials often

contained
jingles and special effects, including wisps of

smoke and blue electrical currents surrounding
the firm's name.
fictional or comical scenes.
Used the slogan "the heavy hitters.
Portrayed its attorneys as giants towering over

downtown buildings, depicting its attorneys
counseling space aliens concerning an insurance
Ch. 3 part 1 solicitationits
and attorneys running as
dispute, and representing
advertising
57
Trade names
Task Force Report regarding trade

names
The Committee endorsed
continuation of the ban on use of
trade names
trade names are far too likely to
be false, deceptive and
misleading to consumers of legal
services.
advertising
58
Clearly improper
The following, if used in public

communications or communications
to a prospective client, are likely to
be false, deceptive or misleading: . . .
a communication that states or
implies that the lawyer has the
ability to influence improperly a
court, court officer,
governmental agency or
government official . . . .
advertising
59
Super Lawyers
Any problem here?

advertising
60
60
Lawyers with a difference
Wilentz, Goldman & Spitzer is a name that

has become synonymous with law firm
excellence and a commitment to make a
difference for the businesses and
individuals it serves.
Practicing law, teaching the law, and
shaping the law is what we do.
All of us at Wilentz, Goldman & Spitzer are
dedicated to maintaining the reputation,
service and results our clients have come
to expect and that is our Commitment to
Make a Difference.
advertising
61
61
A Legend in his own mind?
Stuart Hoberman Named New Jersey Best

Lawyers Banking Lawyer of the Year
Woodbridge, NJ We are pleased to

announce thatStuart A. Hoberman,
shareholder of Wilentz, Goldman & Spitzer,
P.A. (Wilentz) has been named the New
JerseyBest LawyersBanking Lawyer of the
Year for 2009 by Best Lawyers, the oldest
and most respected peer-review
publication inCh.the
legal profession.
3 part 1 solicitation and
advertising
62
62
Lots of Legends
Wilentz, Goldman & Spitzer, P.A.

Announces 50 Lawyers Included on 2009
New Jersey Super Lawyers and Rising
Stars Lists
39 of our attorneys have been selected for

inclusion on the 2009New JerseySuper
Lawyerslist
11 of our attorneys were selected for
inclusion on the 2009Rising Starslistas
designated byLaw & Politicsmagazine.

advertising
63
63

advertising
64
64
THIS IS NOT LEGAL ADVICE
Any problem
here?

advertising
65
65

advertising
66
66
Trade names and mottos
Team Law - Dont just hire a lawyer

hire a team of lawyers
The Super Lawyers
We are lawyers lawyers
One of NJs Top 100
The man who couldnt be bought
Tradition, Innovation, Impact
Practicing law, teaching the law, and
shaping the law is what we do
advertising
67
Milavetz v. United States

advertising
68
11 U.S.C. 526. Restrictions on debt relief

agencies
(a)A debt relief agency shall not

(4)advise an assisted person or
prospective assisted person to incur more
debt
- in contemplation of such person filing a
case under this title or
- to pay an attorney or bankruptcy petition
preparer fee or charge for services
performed as part of preparing for or
representing a debtor in a case under this
title.
advertising
69
Milavetz and Central Hudson

A restriction on speech is permitted
only if:
1) a substantial state interest
2) is materially advanced
3) by a narrowly tailored measure
How does 11 USC 526 (a) (4) fare
under Central Hudson?

advertising
70
Overbroad?
526(a)(4) is unconstitutionally
overbroad as applied to attorneys
falling within the definition of debt
relief agencies because it is not
narrowly tailored, nor narrowly and
necessarily limited, to restrict only
that speech that the government has
an interest in restricting.
advertising
71
Overbroad?
Instead, 526(a)(4) prohibits

attorneys classified as debt relief
agencies from advising any assisted
person to incur any additional debt in
contemplation of bankruptcy; this
prohibition would include advice
constituting prudent pre-bankruptcy
planning that is not an attempt to
circumvent, abuse, or undermine the
bankruptcy laws.
advertising
72
Overbroad?
Section 526(a)(4), as written,

prevents attorneys from fulfilling
their duty to clients to give them
appropriate and beneficial advice not
otherwise prohibited by the
Bankruptcy Code or other applicable
law.

advertising
73
Dissent
If an attorney advises a debtor to

refinance his home to lower mortgage
payments, or to purchase a reliable car to
enable him to pay off his debts, then a
debtor following that advice would suffer
no damage. There is no reason to believe
that a client could recover the remittal of
attorney's fees or that a court would find a
civil penalty "appropriate" as a remedy for
legal advice that benefits both the debtor
and his creditors.
advertising
74
A narrowing construction?
According to the government,

526(a)(4) should be interpreted as
merely preventing an attorney from
advising an assisted person.. to take
on more debt in contemplation of
bankruptcy when the incurrence of
suchdebt is done with the intent to
manipulate the bankruptcy system,
engage in abusive conduct, or take
unfair advantage of the bankruptcy
advertising
75

Ch.3. Part 1 Advertising

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Ch.3. Part 1 Advertising

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Ch.

3 The Business, Technology &

MRPC 7.3 Direct Contact with

May a lawyer without request by her

Q. 3.1 Is the Attorney subject to discipline if

(A) Yes, if Attorney has any reason to

MRPC 7.3 Direct Contact with

In Ohralik the court says there is a

Q. 3-2, p. 202 Primus non-profit

May a lawyer actively solicit clients

Q. 3-2, p. 202 Primus non-profit

Is the Rehnquist dissent correct that

Ch. 3 part 1 solicitation and

The limits and purposes of control of

Does certification solve the

Ch. 3 part 1 solicitation and

Champerty and the Guild meets SCOTUS

1980 - Central Hudson Gas & Elec.

1985 - Zauderer v. Ohio Disciplinary

Ch. 3 part 1 solicitation and

1988 Shapero v. Kentucky 486 U.S.

Soliciting business, sharing fees and

Q. 3-3 p. 214 Governor announces

(A) Yes, because the mailing included

Zang & Whitmer p. 215

Advertising to the general public

Ch. 3 part 1 solicitation and

Q. 3-4, p. 215 Is the attorney subject to

Q. 3-5, p. 225 Call fees might be lower

Q. 3-6 p. 226 Client endorsement - $10 M

Is the attorney subject to discipline ?

Q. 3-6 p. 226 Client endorsement

Ch. 3 part 1 solicitation and

Q. 3-7 p. 227 Van at the county fair. Is

Q. 3-8 p. 228 Law Firm of Alpha, Beta &

Q. 3-9 State restrictions on testimonials,

Ch. 3 part 1 solicitation and

Standard (rational basis) (ethics regs)

The Central Hudson Test

Central Hudson test, Defendants

Central Hudson: a fact to be proven

"This burden is not satisfied by mere

Central Hudson: a fact to be proven

Capobianco v. Summers, 377 F.3d

Q. 3-10 p. 245 Is agreement improper?

(A) Yes, because she asked the owner to

NJ Supreme Court Attorney Advertising

Bankruptcy lawyers send direct

Ch. 3 part 1 solicitation and

NJ Advertising Committee Opinion 30

"HOW CHAPTER 13 PROTECTS YOU

Attorney Advertising Guideline 3

Attorneys who seek clients by written solicitation from

Attorney Advertising Guideline 3

4) include information sufficient to inform

Attorney Advertising Guideline 3

5) not attempt to indicate a special

An attorney or law firm may not

An attorney or law firm may include,

Ch. 3 part 1 solicitation and

Suggested Model Rule 7.0

R. 7.0 Truthful, informative advertising by

Rule 7.1 Communications

A lawyer shall not make a false or