Commentary

When I agreed to write a column for Pennsylvania Law Weekly, I did so because the areas I intended to discuss did not fit into the traditional categories that apply to most legal writing. Instead, my goal was to focus on the intersection of legal ethics, technology and practice management, addressing the practical issues that confront individual attorneys, their firms and their staffs, including nonlawyers. As a result, one column might address changes in technology that impact legal practice, while another might examine how to balance practice management concerns with a lawyer’s ethical obligations. Or, as in this piece, I may analyze how changes or proposed changes in the Rules of Professional Conduct will impact the way lawyers practice, market and/or manage their offices. In addition, I welcome reader comments and suggestions and hope to answer questions in these pages.

I come to this column from a rather unique perspective. I operate a law office that handles workers’ compensation claims; we also provide ethical guidance, as well as appellate and writing services, to other attorneys. I also operate a technology consulting firm that helps lawyers use technology to improve their workflow. Thus, some readers may already know me as the workers’ comp lawyer, or the ethics guy, or the technology attorney, or as a writer. Wearing all of these hats gives me, on several issues, a perspective that many of my colleagues do not have.

Consider the subject of this article: how, or if, proposed changes to the Model Rules of Professional Conduct will impact lawyer advertising. While the majority of lawyers aspire to comply with the Rules of Professional Conduct, many remain either unaware of the current rules (in Pennsylvania or elsewhere) or ignore them in the belief that they will not be subject to discipline. If you doubt me, just watch television, or ride a bus, or look at some of the solicitations you receive from your colleagues seeking referrals.

Lawyer advertising and marketing — it’s interesting how some firms claim that they market, but don’t advertise, as if there really is a difference — in Pennsylvania is governed by Rules of Professional Conduct 7.1 to 7.5. These rules differ in some ways from the Model Rules of Professional Conduct, which are promulgated by the American Bar Association to provide states with a template for creating their own ethical rules. Yet their underlying precept remains the same, to wit, to assure that, as outlined in Pa.R.P.C. 7.1, “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”

Pursuant to Rule 7.1, “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.” Subsequent rules outline the contents of permissible lawyer advertising and provide a template for assuring that lawyers honor their obligation. For example, the Pennsylvania Rules state that lawyers:

• Shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertisements or written communications permitted by this rule and the usual charges of a lawyer referral service or other legal service organization.

• May not use advertisements that contain an endorsement by a celebrity or public figure.

• Must disclose when an advertisement contains a paid endorsement.

• May not advertise using a portrayal of a client by a nonclient or the re-enactment of any events or scenes, or pictures or persons that are not actual or authentic, without a disclosure that such depiction is a dramatization.

• Must communicate, with regard to fees, that the client will be liable for certain expenses in addition to the fee, if such is the case.

• Must disclose the geographic location, by city or town, of the office in which the lawyer or lawyers who will actually perform the services advertised principally practice law. Moreover, if the office location is outside the city or town, the county in which the office is located must be disclosed.

• May not, directly or indirectly (whether through an advertising cooperative or otherwise), pay all or any part of the costs of an advertisement by a lawyer not in the same firm or by any for-profit entity other than the lawyer’s firm, unless the advertisement discloses the name and principal office address of each lawyer or law firm involved in paying for the advertisement and, if any lawyer or law firm will receive referrals from the advertisement, the circumstances under which referrals will be made and the basis and criteria on which the referral system operates.

• Shall not, directly or indirectly, advertise that the lawyer or his or her law firm will only accept, or has a practice limited to, particular types of cases unless the lawyer or his or her law firm handles, as a principal part of his, her or its practice, all aspects of the cases so advertised from intake through trial.

• Must state, when necessary, that the lawyer or law firm ordinarily does not handle from intake through trial.

• Shall not advertise as a pretext to refer cases obtained from advertising to other lawyers.

Of note, the comment to Rule 7.1 states that “an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that comparison can be substantiated.”

In this context, consider some of the advertisements lawyers publish. Just last week, one office solicited referrals noting that they are “THE” firm to handle a particular type of case and that the quality of their services is “unrivaled” and “unparalleled.” Similarly, some firms refer to themselves as “a” or “the” leading firm in a practice area; a quick Internet search reveals another attorney who boasts on his website that he “specializes in criminal defense and DUI defense,” despite the prohibition on doing so under R.P.C. 7.4.

Against this backdrop, consider the latest amendments to the Model Rules, which were proposed by the American Bar Association Commission on Ethics 20/20 and adopted by the ABA House of Delegates in August.

In particular, Proposal 105B was based on the conclusion “that no new restrictions on lawyer advertising are required [because] Model Rule 7.1′s prohibition against false and misleading communications is readily applicable to online advertising and other forms of electronic communications that are used to attract new clients.” The ABA proposal noted, however, that “some Model Rules — specifically Model Rules 1.18 (duties to prospective clients), 7.2 (advertising), and 7.3 (direct contact with prospective clients) — have unclear implications for new forms of marketing and that lawyers would benefit from several clarifying amendments.”

As a result, the commission sought to provide additional guidance about attorney advertising, by renaming Rule 7.3 “solicitation of clients,” rather than “direct contact with prospective clients.” The ABA drafters also added a new Comment 1 and modified and renumbered Comments 2 and 3:

• 1 — A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.

• 2 — There is a potential for abuse when a solicitation involves direct in-person, live telephone or real-time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation and over-reaching.

• 3 — This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation justifies its prohibition, particularly since lawyers have alternative means of conveying necessary information to those who may be in need of legal services. In particular, communications can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations.

These forms of communications and solicitations make it possible for the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the public to direct in-person, telephone or real-time electronic persuasion that may overwhelm a person’s judgment.

So what does this all mean for law firms that want to advertise ethically?

First, advertising is governed by the rules. Thus, lawyers, must still do the basics and include specific information about where their offices are located, and where they will perform the client’s legal services, as well as the other data required under the rules.

Next, lawyers may not advertise that they are specialists or specialize in a particular practice area unless they are certified to do so in accordance with the Pennsylvania rules, as well as the rules in any other state in which they are licensed.

Law firms must ensure that their websites and other Internet advertisements comply with the ethical mandates of every state in which they practice. They should also include appropriate disclaimers so that clients and prospective clients understand how and when an attorney-client relationship is created, and when communications may not be privileged.

Lawyers must also be mindful that they cannot include comparisons in their communications that cannot be quantifiable. Calling a lawyer or firm “THE” firm, or stating that an attorney is the “best,” absent some objective and measurable criteria for doing so, violates the rules.

And lastly, lawyers must recognize, consistent with opinions of the Philadelphia Bar Association professional guidance committee and others, that a website is an advertisement and that they need to design their sites consistent with all of the applicable rules.

Of course, it would also be helpful if state ethics authorities enforced the rules to provide an incentive for all attorneys to honor their obligations. Absent such an effort, it is likely that many lawyers will continue to assert their own superiority with impunity. Perhaps the commission’s report, and the proposed changes to the Model Rules, will spur them to action. •

Daniel J. Siegel is the principal of the Law Offices of Daniel J. Siegel, which provides appellate, writing and trial preparation services to other attorneys, as well as ethical and disciplinary guidance. He is also the president of Integrated Technology Services LLC, a consulting firm that helps law offices improve their workflow through the use of technology. He can be reached at dan@danieljsiegel.com.em>