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Complete Home & Office Legal Guide
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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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1993-08-16
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/* The final section on attorney's ethical rules. */
Comment
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. The public's need to know about legal
services can be fulfilled in part through advertising which
provides the public with useful, factual information about legal
rights and needs and the availability and terms of legal services
from a particular lawyer or law firm. This need is particularly
acute in the case of persons of moderate means who have not made
extensive use of legal services. Nevertheless, certain types of
advertising by lawyers create the risk of practices that are
misleading or overreaching and can create unwarranted
expectations by laymen untrained in the law. Such advertising
can also adversely affect the public's confidence and trust in
our judicial system.
In order to balance the public's need for useful
information, the state's need to ensure a system by which justice
will be administered fairly and properly, as well as the state's
need to regulate and monitor the advertising practices of
lawyers, and a lawyer's right to advertise the availability of
the lawyer's services to the public, this rule permits public
dissemination of information concerning a lawyer's name or firm
name, address, and telephone number; the kinds of services the
lawyer will undertake; the basis on which the lawyer's fees are
determined, including prices for specific services and payment,
and credit arrangements; a lawyer's foreign language ability;
names of references and, with their consent, names of clients
regularly represented; and other factual information that might
invite the attention of those seeking legal assistance.
Television is now one of the most powerful media for
conveying information to the public, a blanket prohibition
against television advertising, therefore, would impede the flow
of information about legal services to many sectors of the
public. However, the unique characteristics of electronic
media, including the pervasiveness of television and radio, the
ease with which these media are abused, and the passiveness of
the viewer or listener, make the electronic media especially
subject to regulation in the public interest. Therefore, greater
restrictions on the manner of television and radio advertising
are justified that might be appropriate for advertisements in the
other media. To prevent abuses, including potential
interferences with the fair and proper administration of justice
and the creation of incorrect public perceptions or assumptions
about the manner in which our legal system works, and to promote
the public's confidence in the legal profession and this
country's system of justice while not interfering with the free
flow of useful information to prospective users of legal
services, it is necessary also to restrict the techniques used in
television and radio advertising.
Paragraphs (b) and (e) of this rule are designed to ensure
that the advertising is not misleading and does not create
unreasonable or unrealistic expectations about the results the
lawyer may be able to obtain in any particular case, and to
encourage a focus on providing useful information to the public
about legal rights and needs and the availability and terms of
legal services. Thus, the rule allows all lawyer advertisements
in which the lawyer personally appears to explain a legal right,
the services the lawyer is available to perform, and the lawyer's
background and experience.
The prohibition in paragraph (b) against any background
sound other than instrumental music precludes, for example, the
sound of sirens or car crashes and the use of jingles. Paragraph
4-7.1(d) forbids use of testimonials or endorsements from clients
or anyone else. Paragraph (e) prohibits dramatizations in any
advertisement, including those appearing on the electronic media.
This is intended to preclude the use of scenes creating suspense,
scenes containing exaggerations or situations calling for legal
services, scenes creating consumer problems through
characterization and dialogue ending with the lawyer solving the
problem, and the audio or video portrayal of an event or
situation. While informational illustrations may attract
attention to the advertisement and help potential clients to
understand the advertisement, self-laudatory illustrations are
inherently misleading and thus prohibited. As an example, a
drawing of a fist, to suggest the lawyer's ability to achieve
results, would not be informational and would be barred.
Regardless of medium, a lawyer's advertisement should
provide only useful, factual information presented in a
nonsensational manner. Advertisements utilizing slogans or
jingles, or oversized electronic and neon signs or sound trucks,
fail to meet these standards and diminish public confidence in
the legal system.
/* Which is not binding since it is only in a comment. */
The disclosure required by paragraph (d) of this rule is
designed to encourage the informed selection of a lawyer. As
provided in rule 4-7.3, a prospective client is entitled to know
the experience and qualifications of any lawyer seeking to
represent the prospective client. The required disclosure would
be ineffective if it appeared in an advertisement so briefly or
minutely as to be overlooked or ignored. This in print
advertisements, the type size used for the disclosure must be
sufficient to cause the disclosure to be conspicuous; in recorded
advertisements the disclosure must be spoken at a speed that
allows comprehension by the average listener. This rule does not
specify the exact type size to be used for the disclosure or the
exact speed at which the disclosure may be spoken; good faith and
common sense should serve as adequate guides for any lawyer.
Neither this rule nor rule 4-7.4 prohibits communications
authorized by law, such as notice to members of a class in class
action litigation.
This rule applies to advertisements and written
communications directed at prospective clients and concerning a
lawyer's or law firm's availability to provide legal services.
The rule does not apply to communications between lawyers,
including brochures used for recruitment purposes.
Paying others to recommend a lawyer
A lawyer is allowed to pay for advertising permitted by this
rule, but otherwise is not permitted to pay or provide other
tangible benefits to another person for procuring professional
work. However, a legal aid agency or prepaid legal services plan
may pay to advertise legal services provided under it auspices.
Likewise, a lawyer may participate in lawyer referral programs
and pay the usual fees charged by such programs, subject,
however, to the limitations imposed by rule 4-7.8. Paragraph (q)
does not prohibit paying regular compensation to an assistant,
such as a secretary or advertising consultant, to prepare
communications permitted by this rule.
Paying others to recommend a lawyer
A lawyer is allowed to pay for advertising permitted by this
rule, but otherwise is not permitted to pay or provide other
tangible benefits to another person for procuring professional
work. However, 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 lawyer referral programs
and pay the usual fees charged by such programs, subject,
however, to the limitations imposed by rule 4-7.8. Paragraph (q)
does not prohibit paying regular compensation to an assistant,
such as a secretary or advertising consultant, to prepare
communications permitted by this rule.
RULE 4-7.3 LEGAL SERVICE INFORMATION
(a) Each lawyer or law firm that advertises his, her, or its
availability to provide legal