Attorneys are held to strict compliance in advertising, but there is some subjective elements to certain forms of advertising (radio, television, direct solicitation letters and websites). However, clearly false and misleading representations in advertising and paying others (non-lawyers) for referrals is specifically precluded.
I mention this because I happen to advertise on occasion via my website and have utilized such services as Bing advertising and Google Adwords campaigns. I recently saw an advertisement of a competitor who claimed in their particular Adwords ad that they had the "Best DUI Dismissal Rate in Seattle." Okay, some say maybe that is just hyperbole, but I say it is a clear misrepresentation of that firm's success in an attempt to mislead prospective clients
RPC 7.1 states:
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 contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
Here, the statement by the attorney that they have the "Best DUI Dismissal rate" is clearly a materially misleading statement because without some sort of checks and balances or foundation for comparison with other attorneys' dismissal rates, it clearly is a false communication to a prospective client.
Another popular approach to advertising I have seen is to send direct solicitation letters to persons arrested for various offenses. Now many of my colleagues find this practice deplorable, but under the rules it is allowed. It is barely allowed, but allowed.
RPC 7.3 (a) states: A "lawyer shall not directly or through a third person, 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..."
Now that seems pretty clear, "a lawyer shall not directly...solicit professional employment from a prospective client..." However, comment (2) to this rules allows for the mailing of letters.
Comment (2) to RPC 7.3: This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or autodialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct in-person, telephone or real-time electronic persuasion that may overwhelm the client's judgment.
Again, many of us do not like this approach because of the intimidating language used by these attorneys. They utilize words such as "you are facing jail" "you could go to jail for a year!" etc. I believe it is tacky, but allowed.
The final advertising approach I wanted to address is having others refer business to you; for example, having tow truck drivers give out your card to every DUI arrestee who picks up their car after they are released by law enforcement. This approach is addressed by RPC 7.2.
RPC RULE 7.2 ADVERTISING (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (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 cost of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; (3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. (c) Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer or law firm responsible for its content.
Comment (5) to RPC 7.2: Paying Others to Recommend a Lawyer - Lawyers are not permitted to pay others for channeling professional work. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business- development staff and website designers. See Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing materials for them.
This means that if a lawyer pays a tow truck driver or tow lot to hand out their card, they are very likely in violation of this rule if they gave anything of value for that potential referral.
Obtaining DUI clients is extremely competitive in the Puget Sound area and I am all for advertising, but attorneys need to ensure they are abiding by the RPCs when attempting to garner business.
I've had many potential clients ask if I will bend the rules in their case and my answer is always "My bar card is more valuable than any potential client." The same goes for advertising.
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