Summary of Advertising Rule Changes

 

Sara Rittman, Legal Ethics Counsel

 

            “Since the belief that lawyers are somehow 'above' trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.”  Bates v. Arizona, 433 US 350, 371-372; 97 S.Ct. 2691, 2703 (1977).  The decision of the United States Supreme Court in Bates has had lasting effects on the types of advertising attorneys may use and has resulted in much more complex advertising regulations.  Although the U.S. Supreme Court found that some historical restraints, such as prohibitions on price advertising, were no longer permissible, the Court also recognized that certain other types of regulations would continue to be appropriate.  Against that backdrop, the Supreme Court of Missouri recently revised three of the five advertising rules.  

 

            The advertising rules are found in Rules 4-7.1 – 4-7.5.  The Supreme Court’s Order of September 19, 2005, makes major changes to Rules 4-7.1 – 4-7.3, effective January 1, 2006.   The remainder of this article will summarize the new rules in terms of the changes to attorney advertising in Missouri.  This article will not attempt to summarize provisions of the advertising rules that are included in the existing rules.

 

            As with the previous version of the rules, Rule 4-7.1 generally addresses types of advertising considered to be false or misleading.  Rule 4-7.2 addresses general advertising.  In other words, advertising not targeted to a particular individual or entity but generally broadcast or published.  Rule 4-7.2 usually applies to advertising distributed to particular people or entities based on demographics.  For example, advertising sent to everyone in a particular geographic area would normally be general advertising under Rule 4-7.2.  However, if that geographic area is chosen because of its proximity to toxic waste and the advertisement relates to representation regarding that toxic waste, it would be considered a solicitation and the requirements of Rule 4-7.3 would apply.

 

Rule 4-7.1

 

            False and misleading advertising by attorneys has always been prohibited and it will still be prohibited after the new rules take effect.  However, there are changes in some of the types of advertising that are specifically listed as considered to be misleading or false.

 

            A type of advertising that has been somewhat controversial in recent years is commonly referred to as “results advertising.”  Under the new rules, it will be clearly permissible to advertise using the lawyer’s past results.  However, such an advertisement must include a statement to the effect that “Past results afford no guarantee of future results.  Every case must be judged on its own merits.”

 

            Since In re RMJ, 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982), attorneys have been advertising fields of practice.  The new rules prohibit advertising a field of practice in which the attorney has “neither experience nor competence.”  They also prohibit advertising an area of practice in which the attorney routinely refers clients out to other attorneys, unless the fact of such routine referral is conspicuously disclosed.

 

            The 2005 rules require disclosure if an advertised office, other than the principal office, is staffed on a limited basis.  The essence of this requirement has not changed in the new rules.  An advertisement listing an office staffed, by an attorney, less than three days a week must still disclose the days and times when an attorney will be present or that meetings with attorneys will be by appointment only.  However, some details have changed.  The disclosure is required for all advertising, not just advertising “in the public media.”  Attorneys are no longer required to disclose the location of the “principal” office in all advertisements. 

 

            Rules 4-7.1(j) and 4-7.2(e) address the part-time office disclosure requirements.  Rule 4-7.2(f) exempts advertisements that contain only the following: name of the firm and attorneys, fields of practice, date and place of admission to the bar(s), address, e-mail address, website address, telephone number, and office hours.  In the previous version of the rule, this exemption only applied to “line advertisements” in directories. 

 

            The new rules retain the disclaimer requirement for situations in which legal services are advertised on a “contingent or no-recovery-no-fee basis.”  The requirement has been moved to Rule 4-7.1(k), rather than appearing separately in Rules 4-7.2 and 4-7.3.  The triggering requirement has changed somewhat.  Now, the disclaimer that the “client may be responsible for costs or expenses” is only necessary “if that is the case.”

 

Rule 4-7.2

 

            The new rule retains the requirement that a copy or recording of every advertisement be kept for two years along with a record of when and where it was used.  The new rule eliminates the need for the advertisement to contain the name of at least one attorney responsible for the advertisement, as long as the record of the advertisement that is maintained for two years contains the name of at least one attorney responsible for its content.

 

            The existing rule requires disclosure of an attorney who is financing advertising.  In addition, the new rule requires conspicuous disclosure if an attorney participates in a radio, television, or other electronic program purporting to give legal advice or legal information, if the broadcaster, directly or indirectly, receives anything of value from the attorney.

 

            Rule 4-7.2(f) contains a completely new disclosure requirement.  Any advertisement or communication, other than solicitations under Rule 4-7.3 or those exempted, must conspicuously contain the following statement: “The choice of a lawyer is an important decision and should not be based solely on advertisements.”  The required statement is very similar to another statement made by the U.S. Supreme Court in Bates, 433 US at 374; 97 S.Ct. at 2704: “Advertising does not provide a complete foundation on which to select an attorney.”  If the advertisement is on television, the statement may be oral or written.  If the advertisement is on radio, the statement must be made orally.  Rule 4-7.2(g) exempts advertisements that only contain name of the firm and attorneys, fields of practice, date and place of admission to the bar(s), address, e-mail address, website address, telephone number, and office hours. 

 

Rule 4-7.3

 

            This rule has been substantially re-written.  This article will not attempt to track provisions that have been reorganized within this rule, but only substantive changes.

 

            In-person solicitation is more limited, under the new rules.  An attorney may engage in in-person solicitation of only “an existing or former client, lawyer, close friend or relative.”  In-person solicitation of lawyers is permissible.  In-person solicitation is no longer permitted under the auspices of a public or charitable legal services organization, or bona fide political, social civic, fraternal, or trade organization.  In-person solicitation now expressly includes “real time electronic” communication, such as instant messaging and chat rooms.

 

            Written solicitations to anyone other than “an existing or former client, lawyer, friend or relative” must comply with certain requirements:

 

(1) The old ADVERTISING disclaimer is replaced with a requirement that the mail be plainly marked “ADVERTISEMENT” on the face of the envelope and at the top of the first page.  Rather than requiring that the disclaimer be “conspicuous,” the rule is specific that this word must be in type at least as large as the largest type used in the solicitation. 

 

(2) The rule now makes it clear that a copy of written solicitations must be kept for two years.  Alternatively, one copy of a solicitation sent to multiple people may be kept along with a list of names and addresses. 

 

(3)  The written solicitation must include the following statement: “Disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to in this solicitation.  You may wish to consult your lawyer or another lawyer instead of me (us).  The exact nature of your legal situation will depend on many facts not known to me (us) at this time.  You should understand that the advice and information in this solicitation is general and that your own situation may vary.  This statement is required by rule of the Supreme Court of Missouri.”

 

            Previously, written solicitations could be sent by any method.  After January 1, 2006,  they can only be sent by regular U.S. mail -- no special methods of delivery may be used.  The written solicitation cannot resemble legal documents and, in most situations, it must disclose how the attorney obtained the information prompting the solicitation.  The nature of the potential client’s legal problem must not be revealed on the outside of the solicitation.

 

            If the attorney sending the solicitation knows that another lawyer or firm will actually handle the matter, the solicitation must disclose this fact. 

 

            New circumstances in which written solicitations are prohibited:

 

(1) If the potential client is already represented by an attorney and the soliciting attorney knows or should know that fact.

 

(2) Fraud, overreaching, intimidation, and undue influence have been added to the prohibited circumstances of coercion, duress, and harassment listed in the 2005 rule.

 

(3) Solicitations containing statements that would violate Rule 4-7.1, assert opinions regarding liability, or offer assurances of client satisfaction.

 

(4) The solicitation is within 30 days and “concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person solicited or a relative of that person.”  Previously, during the 30 day period after an “incident giving rise to personal injury or death” it was presumed that a person would be unlikely to exercise reasonable judgment in employing a lawyer.  The change in language is likely to allow solicitation in criminal cases, within the 30 day period that would have been prohibited previously.  It will also prohibit solicitation of cases involving only property damage, within the 30 day period, if the property damage arises from an accident or disaster.

 

(5) The solicitation “vilifies, denounces or disparages any other potential party.”

 

            Although this article summarizes the changes made by the new rules, all attorneys are encouraged to read the actual text of the new rules.