Communication 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 if it contains a material misrepresentation of fact or law.
A communication is misleading if it:
(a) omits a fact as a result of which the statement considered as a whole is materially misleading;
(b) is likely to create an unjustified expectation about results the lawyer can achieve;
(c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits;
(d) states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;
(e) compares the quality of a lawyer’s or a law firm’s services with other lawyers’ services, unless the comparison can be factually substantiated;
(f) advertises for a specific type of case concerning which the lawyer has neither experience nor competence;
(g) indicates an area of practice in which the lawyer routinely refers matters to other lawyers, without conspicuous identification of such fact;
(h) contains any paid testimonial about or endorsement of the lawyer, without conspicuous identification of the fact that payment has been made for the testimonial or endorsement;
(i) contains any simulated portrayal of a lawyer, client, victim, scene, or event without conspicuous identification of the fact that it is a simulation;
(j) provides an office address for an office staffed only part-time or by appointment only, without conspicuous identification of such fact; or
(k) states that legal services are available on a contingent or no-recovery-no-fee basis without stating conspicuously that the client may be responsible for costs or expenses, if that is the case.
(Adopted September 28, 1993, effective July 1, 1995. Amended September 19, 2005, effective January 1, 2006.)
This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them should be truthful.
DR 2-101 provides that “a lawyer shall not . . . use . . . any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.” DR 2-101(B) provides that a lawyer “may publish or broadcast . . . the following information . . . in the geographic area or areas in which the lawyer resides or maintains offices or in which a significant part of the lawyer's clientele resides, provided that the information . . . complies with DR 2-101(A), and is presented in a dignified manner. . . .” DR 2-101(B) then specifies 25 categories of information that may be disseminated. DR 2-101(C) provides that “any person desiring to expand the information authorized for disclosure in DR 2-101(B), or to provide for its dissemination through other forums may apply to (the agency having jurisdiction under state law). . . . The relief granted in response to any such application shall be promulgated as an amendment to DR 2-101(B), universally applicable to all lawyers.”
SUPPLEMENTAL MISSOURI COMMENT
This Rule 4-7.1 is not intended to alter the definition of “competence” as defined in Rule 4-1.1.
Rule 4-7.1 prohibits false or misleading communications. False and misleading statements have never enjoyed the limited first amendment protection afforded to other forms of commercial speech by Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and its progeny.
Rule 4-7.1(c) allows a verifiable statement regarding the number of cases tried or handled in a particular area without the disclaimer language of Rule 4-7.1(c).
Rule 4-7.1(h) addresses the practice of using testimonials and endorsements by entertainers, sports figures or other well-known persons. This rule requires the disclosure of the fact that a payment was made to obtain the testimony or endorsement, thereby giving the public an opportunity to evaluate the credibility of the statement.
Rule 4-7.1(i) deals with simulations primarily utilized in the electronic media. Rule 4-7.1(i) permits simulations of a lawyer, client, victim, scene or event if the advertising indicates that it is a simulation that is being portrayed. The simulation must contain a disclosure that it is a simulation in order to counteract any suggestion that the representation is a portrayal of actual fact. Rule 4-7.1(i) also permits a communication to contain a picture or other representation of the lawyer or lawyers providing the legal services that are the subject of the advertisement.
(a) Subject to the requirements of Rule 4-7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio, or television, or through direct mail advertising distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter.
(b) A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used. The record shall include the name of at least one lawyer responsible for its content unless the advertisement or written communication itself contains the name of at least one lawyer responsible for its content.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that:
(1) a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule 4-7.2;
(2) a lawyer may pay the reasonable cost of advertising, written communication or other notification required in connection with the sale of a law practice as permitted by Rule 4-1.17; and
(3) a lawyer may pay the usual charges of a qualified lawyer referral service registered under Rule 4-10.1 or other not- for-profit legal services organization.
(d) A lawyer may not, directly or indirectly, pay all or a part of the cost of an advertisement in the public media unless such advertisement discloses the name and address of the financing lawyer, the relationship between the advertising lawyer and the financing lawyer, and whether the advertising lawyer is likely to refer cases received through the advertisement to the financing lawyer. Similarly, in any communications such as television, radio or other electronic programs purporting to give the public legal advice or legal information, for which programs the broadcaster receives any remuneration or other consideration, directly or indirectly, from the lawyer who appears on those programs, the lawyer shall conspicuously disclose to the public the fact that the broadcaster has been paid or receives consideration from the lawyer appearing on the program.
(e) A lawyer or law firm shall not advertise the existence of any office other than the principal office unless:
(1) that other office is staffed by a lawyer at least three days a week, or
(2) the advertisement states:
(A) the days and times during which a lawyer will be present at that office, or
(B) that meetings with lawyers will be by appointment only.
(f) Any advertisement or communication made pursuant to this Rule 4-7.2, other than written solicitations governed by the disclosure rules of Rule 4-7.3(b), shall contain the following conspicuous disclosure:
“The choice of a lawyer is an important decision and should not be based solely upon advertisements.”
(g) The disclosures required by Rules 4-7.2(e) and (f) need not be made if the information communicated is limited to the following:
(1) the name of the law firm and the names of lawyers in the firm;
(2) one or more fields of law in which the lawyer or law firm practices;
(3) the date and place of admission to the bar of state and federal courts; and
(4) the address, including e-mail and web site address, telephone number, and office hours.
(Amended June 21, 1994, effective January 1, 1995. Amended December 1, 1994, effective July 1, 1995. Amended August 1, 1995, effective January 1, 1996. Amended November 25, 2003, effective January 1, 2004. Amended September 19, 2005, effective January 1, 2006.)
To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.
Paying Others to Recommend a Lawyer. A lawyer is allowed to pay for advertising permitted by this Rule 7.2, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer’s services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral programs and pay the usual fees charged by such programs. Rule 7.2(c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule. Rule 7.2(c) also does not prohibit paying a person for making a testimonial or endorsement in compliance with Rule 7.1(h).
With regard to
Rule 7.2(a), DR 2-101(B) provides that a lawyer "may publish or broadcast,
subject to DR 2-103 . . . in print media . . . or television or radio . . .."
With regard to Rule 7.2(b), DR 2-101(D) provides that "if the advertisement is communicated over television or radio . . . a recording of the actual transmission shall be retained by the lawyer."
With regard to Rule 7.2(c), DR 2-103(B) provides that "a lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment . . . except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D)" (DR 2-103(D) refers to legal aid and other legal services organizations.). . . DR 2-101(I) provides that "a lawyer shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item."
There is no counterpart to Rule 7.2(d) in the Code.
SUPPLEMENTAL MISSOURI COMMENT
Advertising concerning a lawyer's services should be motivated by a desire to educate the public to an awareness of legal needs and to provide information relevant to the selection of appropriate counsel. Information communicated in advertising should be disseminated in an objective and understandable fashion and should be relevant to a prospective client's ability to choose a lawyer. A lawyer should strive to communicate such information without undue emphasis upon advertising stratagems, which serve to hinder rather than to facilitate intelligent selection of counsel. Tasteful advertising is a matter of subjective interpretation. However, in all communications concerning a lawyer's services, a lawyer should avoid advertising that serves to denigrate the dignity of the profession or trust in courts, of which every lawyer functions as an officer.
Rules 4-7.2(d) and (e) have been added to jointly address the problem of advertising that experience has shown misleads the public concerning the location where services will be provided or the lawyer who will be performing these services. Together they prohibit the same sort of “bait and switch” advertising tactics by lawyers that are universally condemned.
Rule 4-7.2(e) also prohibits advertising the availability of a satellite office that is not staffed by a lawyer at least on a part-time basis. The rule does not require, however, that a lawyer or firm identify the particular office as its principal one. Experience has shown that, in the absence of such regulation, members of the public have been misled into employing a lawyer in a distant city who advertises that there is a nearby satellite office, only to learn later that the lawyer is rarely available to the client because the nearby office is seldom open or is staffed only by lay personnel.
Rule 4-7.2(e) is not intended to restrict the ability of legal services programs to advertise satellite offices in remote parts of the program’s service area even if those satellite offices are staffed irregularly by attorneys. Otherwise, low-income individuals in and near such communities might be denied access to the only legal services truly available to them.
When a lawyer or firm advertises, the public has a right to expect that lawyer or firm will perform the legal services. Experience has shown that lawyers not in the same firm may create a relationship wherein one will finance advertising for the other in return for referrals. Nondisclosure of such a referral relationship is misleading to the public. Accordingly, Rule 4-7.2(d) prohibits such a relationship between an advertising lawyer and a lawyer who finances the advertising unless the advertisement discloses the nature of the financial relationship between the two lawyers. Rule 4-7.2(d) also requires disclosure if a broadcaster receives remuneration from a lawyer appearing on any television, radio or other electronic program purporting to give the public legal advice.
In the case of television, the disclosure required by Rule 4-7.2(f) may be made orally or in writing. In the case of radio, the disclosure must be made orally. The disclosure required by Rule 4-7.2(f) may, at the option of the advertiser, include the following language: “This disclosure is required by rule of the Supreme Court of Missouri.” This disclosure is only required for advertisements in Missouri.