Advertising & Solicitation
Question 1
Joshua Sands is an attorney who just obtained a certification as a specialist in “Therapeutic Lawyering” from the Moon Beam Institute of Therapeutic Justice. The Institute has not yet been accredited or approved to grant specialist certifications by any state’s authority or the American Bar Association. Joshua hopes that this new training and credential will help him attract the right kind of client. Which of the following statements most accurately describes Joshua’s options under the Model Rules of Professional Conduct?
- Joshua may advertise that he practices therapeutic law.
- Joshua may advertise the certification because he actually acquired it.
- Joshua may advertise the certification as long as he identifies the Institute as the organization that granted it.
- Joshua may advertise the certification as long as his advertisement is not false or misleading
Question 2
Wayne Youngblood is an attorney who wants to attract business in the following way. He has a friend who works for a chiropractor. Wayne wants to make an agreement with the friend under which Wayne will hire the friend for $1000 to write an advertisement for Wayne every time the friend sends a patient to Wayne and that patient signs up as a client with Wayne. Which of the following most accurately describes the propriety of Wayne’s plan under the Model Rules of Professional Conduct?
- Wayne may not execute this plan because he may not give anyone anything of value in exchange for recommending his services.
- Wayne may not execute this plan without the informed consent of the clients he obtains this way.
- Wayne may execute the plan because he is permitted to pay for advertising services.
- Wayne may execute the plan as long as the referral arrangement is not exclusive.
Question 3
Cathy Rodriguez is an attorney whose specialty is civil rights litigation. Cathy learns that several students have been suspended from an elite local private high school for wearing shirts with slogans that denounce war. She wants to represent these students to establish important precedent but she also needs the money that the wealthy parents of the students could afford to pay. Which of the following statements most accurately describes Cathy’s options under the Model Rules of Professional Conduct?
- Cathy may solicit the students because she is not motivated entirely by pecuniary gain.
- Cathy may solicit the students because this is a civil rights case.
- Cathy may not solicit the students because pecuniary gain is a significant motive for doing so.
- Cathy may not solicit the students because they are not existing clients.
Question 4
Scott Clough is an attorney who wants to advertise that he was honorary chairman of the local judge’s recent successful reelection campaign. Which of the following statements most accurately describes Scott’s obligations under the Model Rules of Professional Conduct?
- Scott may not use the advertisement because it is in poor taste.
- Scott may not use this advertisement because it implies an ability to achieve results by means that would violate the law.
- Scott may use the advertisement if he obtains the judge’s permission to do so.
- Scott may use this advertisement if it is true.
Question 5
Judy Meade is an attorney whose specialty is estate planning. Judy also volunteers for the local softball league, and in that capacity she has come into possession of the cell phone numbers of all the parents of players in the league. These parents are exactly the type of clients that Judy would like to have, and she has recently learned how to send text messages with her cell phone. Judy would like to send a text message to all the parents on the list and offer her services as an attorney. A few of the parents are Judy’s close personal friends, but the rest are not. Which of the following statements most accurately describes Judy’s options under the Model Rules of Professional Conduct?
- Judy may send the message as long as it is not false or misleading.
- Judy may send the message only to the parents who are close personal friends.
- Judy may not send the message unless she includes the words, “Advertising Material” at the beginning and end of the message to all recipients other than close personal friends.
- Judy may not send the message because it would be improper solicitation.
Question 6
Robert Katz is an attorney whose firm specializes in receiverships of financial institutions. Frank has received a request from the Federal Deposit Insurance Corporation that asks his firm to submit a written proposal to represent the FDIC in a certain region for a certain period of time. Which of the following statements most accurately reflects Robert’s options under the Model Rules of Professional Conduct?
- Robert may submit the written proposal.
- Robert may submit the written proposal as long as it contains the words “advertising material” on the outside of the envelope.
- Robert may not submit the proposal unless he has a prior professional relationship with the FDIC.
- Robert may not submit the proposal if pecuniary gain is a significant motivation.
Question 7
Joe Lemire is an attorney who is attempting to establish his practice in his hometown of Centerville. He believes that it would help him do so to advertise his practice as the “Centerville Legal Clinic.” Which of the following statements most accurately describes Joe’s obligations under the Model Rules of Professional Conduct?
- Joe may use the trade name if he includes a disclaimer that makes it clear that his practice is not a public legal aid agency.
- Joe may use the trade name as long as its offices are located in Centerville.
- Joe may not practice law using a trade name.
- Joe may use the trade name as long as the practice specializes in providing legal services to low-income clients.
Question 8
Clarence & Madsen is a law firm that has applied to become the contract public defender for the county. Under the contract, the county would pay the firm $20,000 per month in exchange for which the firm would represent all of the county’s indigent criminal defendants. The contract is awarded by the chief judge of the state court. In the past election cycle, the firm contributed a significant amount of money to the reelection campaign of the chief judge. Which of the following statements most accurately describes the firm’s options under the Model Rules of Professional Conduct?
- The firm may not accept the contract because it made campaign contributions to the chief judge.
- The firm may not accept the contract if it made the contributions for the purpose of obtaining or being considered for the contract.
- The firm may accept the contract as long as the campaign contributions would not constitute bribery or another crime.
- The firm may accept the contract.
Question 9
Aaron Chapman and Brian McCain are attorneys who were law school classmates. They have entered into an office-sharing arrangement under which they share rent for office space and share the costs of common areas and services such as a secretary and a copier. Each will retain control over his own cases, billing, and revenue. To garner greater credibility for their respective practices, and to save money on letterhead, they want to practice under the name “Chapman & McCain.” Under the Model Rules of Professional Conduct, which of the following statements most accurately reflects the lawyers’ options?
- The lawyers may describe themselves as Chapman & McCain because they share office space.
- The lawyers may describe themselves as Chapman & McCain because those are their real names.
- The lawyers may not describe themselves as Chapman & McCain because they are not members of the same law firm.
- The lawyers may not describe themselves as Chapman & McCain unless they inform all prospective clients that they do not practice as a law firm.
Question 10
Jesse Compton is an attorney who is considering whether he should participate in a prepaid legal services plan owned and operated by a national company. He is concerned because he knows that employees of the plan personally contact people and ask them to become members. Under the Model Rules of Professional Conduct, which of the following statements most accurately describes the propriety of Jesse’s participation in the plan?
- Jesse may participate in the plan as long as the prospective members being contacted are not known to be in need of particular services covered by the plan.
- Jesse may not participate because the plan is engaged in improper solicitation of prospective clients.
- Jesse may participate in the plan because he does not own the plan or direct its activities.
- Jesse may participate because he is not personally soliciting prospective clients.
Question 11
Antonio Vitale is an attorney who wants to increase the volume of new clients served by his law firm, which specialize in representing people who have been involved in automobile accidents. Antonio wants to sign a contract to pay a local, non-profit referral service for including him on its roster of attorneys. Under the Model Rules of Professional Conduct, which of the following statements most accurately describes the propriety of Antonio’s plan?
- Antonio may pay the referral service if the service has been approved by his state’s regulatory authority.
- Antonio may pay the referral service as long as he is only paying its usual charges for inclusion on the list.
- Antonio may not pay the referral service.
- Antonio may pay the referral service because he does not own or operate it himself.
Question 12
Mary Jane McCorkle is an attorney who specializes in personal injury cases for plaintiffs. Mary Jane has a cousin, Gretchen, to whom she is very close. Gretchen’s husband Patrick is a corporate lawyer who was recently injured in a collision with a gravel truck, Mary Jane wants to contact Patrick, whom she does not know, by telephone and offer to represent him for her usual fee. Under the Model Rules of Professional Conduct, which of the following statements most accurately describes the propriety of Mary Jane’s proposed course of conduct?
- Mary Jane may not call Patrick because she is motivated by pecuniary gain.
- Mary Jane may not call Patrick because she does not know him and has never represented him.
- Mary Jane may call Patrick because she has a close family relationship with Patrick’s wife.
- Mary Jane may call Patrick because he is a lawyer.
Question 13
William Broughton is an attorney who recently paid AMERILAW, a trade publication, to be included in the publication’s list of “Best Lawyers in America.” Under the Model Rules of Professional Conduct, which of the following statements most accur atements most accurately describes William’s options regarding publication of this honor?
- William may advertise himself as one of the “AMERILAW Best Lawyers in America” because it is true that he was on the list.
- William may advertise himself as one of the “AMERILAW Best Lawyers in America” because he has a constitutional right to advertise.
- William may not advertise himself as one of the “AMERILAW Best Lawyers in America” because the statement would be misleading.
- William may not advertise himself as one of the “AMERILAW Best Lawyers in America” because it is an implied comparison with other lawyers’ services.
Question 14
Gustav Spillers is an attorney who wants to be known as the kind of lawyer who will “go the extra mile for a client.” He actually does violate the law and rules of conduct when it is necessary to help his clients. Gustav proposes to run an advertisement that shows a poker player holding a hand of five aces, with the caption, “You need a lawyer who knows how to stack the deck. Call Gustav Spillers at 1-800-CHEATER.” Under the Model Rules of Professional Conduct, which of the following statements most accurately describes the propriety of Gustav’s advertisement?
- The advertisement is permissible because questions of taste are matters of speculation and subjective judgment.
- The advertisement is permissible because it is not false or misleading.
- The advertisement is impermissible because it brings disrepute to the legal profession and the system of justice.
- The advertisement is impermissible because it implies that Gustav can achieve results by violating the rules of conduct or other law.
Question 15
Sonny Guest is an attorney who wishes to advertise using the following slogans: “When you need a lawyer, save money by seeing Sonny” and “For your legal needs, Guest is the best!” What advice would you give Sonny about the propriety of these advertisements under the Model Rules of Professional Conduct?
Question 16
Hattie Dougherty is an attorney who specializes in representing plaintiffs in accidents involving all-terrain vehicles. She has won several huge verdicts that have garnered headlines such as “Hattie Wins $10 million Verdict from Local Jury” and “Dougherty Does it Again: ATV Manufacturer Socked for $15.2 million.” Hattie would like to include a “montage” of these headlines as the background for her new television advertisements. What advice would you give Hattie about the propriety of this idea under the Model Rules of Professional Conduct?
Question 17
Rita McCue is an attorney who specializes in elder law. She would like to increase her volume of business by conducting a series of “educational seminars” around her state through the auspices of local senior citizen centers. She is hoping that many of the attendees will become clients. As she embarks on his tour of seminars, what ethical advice would you give Rita?
Answers
Question 1
The correct answer is Answer A. With or without any certification as a specialist, a lawyer can always under Rule 7.4(a) advertise that the lawyer does or does not practice in particular fields of law. Answers B., C, and D., however, are incorrect. Joshua is not permitted to advertise this certification as a specialist. To be entitled to do that, the certifying organization would have to be approved by an appropriate state authority or accredited by the ABA, and the advertisement would need to include the name of the Institute. Here, the Institute has not been approved by anyone, and so the lawyer may not advertise a specialty based upon a certification from the Institute.
Question 2
The correct answer is A. Wayne is giving something of value to the friend in exchange for sending him business, and that violates Rule 7.2(b). Even if the $1000 fee really is for writing advertisements — and one must be skeptical of that characterization of the arrangement - the facts make it clear that the friend receives the valuable opportunity to write the ad for a fee only because of the referral. At the very least, Wayne would be giving that bit of value for the referral, and that is a violation. Answer B. is incorrect because client consent is not relevant to a violation of Rule 7.2(b). The clients should never have been steered to Wayne by such an arrangement in the first place. Answer C is incorrect because Wayne is not just paying for advertising in the normal course of business. He is engaging in a quid pro quo — the friend sends business and in exchange the friend gets to do the advertisir is incorrect because exclusivity only matters to a reciprocal referral arrangement not otherwise prohibited by the rules. This is not a reciprocal referral arrangement, such as one between Wayne and the chiropractor. Furthermore, the arrangement does otherwise violate the rule because of the value that Wayne is giving for the referrals.
Question 3
The correct answer is C. Lawyers may not solicit clients when a significant motive for the lawyer doing so is pecuniary gain, with some exceptions that do not apply here. Rule 7.3(a). Cathy is trying to set precedent, but she needs the money. The fee is therefore a significant motive for the solicitation and it is not allowed. If she was motivated solely by the desire to set a precedent or by other reasons that had nothing to do with money, then she could solicit. Answer A is incorrect because it is enough for pecuniary concerns to be a significant motivation. They need not be the only motivation. Answer B. is incorrect because what matters is the motivation, not the type of case. Answer D. is incorrect because there are circumstances under which lawyers can solicit prospective clients who are not existing clients, although the solicitation of existing clients is allowed.
Question 4
The correct answer is B. This particular advertisement comes dangerously close to stating that clients should hire Scott because he will have influence with the judge. Indeed, it is hard to imagine why else the lawyer would want to advertise his role in the judge’s campaign. An advertisement that stated truthfully that the lawyer could obtain results by trading on his relationship with the judge would violate Rule 8.4(e). This advertisement, which implies the same thing, also violates that Rule even though the influence is merely implied. See also Comment 4 to Rule 7.1. Answer A is incorrect because the Model Rules do not purport to regulate good taste in advertising. See Comment 3 to Rule 7.2. Answer C is incorrect because the judge’s permission is irrelevant if the message is that the lawyer has inappropriate influence. Answer D. is incorrect because it is not always enough for an advertisement to be true.
Question 5
The correct answer is Answer C. With only a few exceptions, lawyers are not allowed to solicit employment face-to-face, by live telephone contact, or through real-time electronic communication. A text message, unlike for example a “live chat” over the internet, is not a real-time electronic communication. Like an e-mail or a letter, a text message does not require an immediate response. Therefore, lawyers may solicit by text just as they could by letter, as long as the message contains the words “advertising material” at the beginning and end of each message to someone other than Judy’s close personal friends. Answer A is incorrect because it states the general rule for lawyer communications rather than the specific rule dealing with solicitation. Answer B. is incorrect because this is not a real-time electronic contact and therefore Judy is not limited to contacting only close personal friends. Answer D. is incorrect for the same reason.
Question 6
The correct answer is Answer A. The proposal would be a written solicitation of work, which normally would require the warning to the recipient that it is “advertising material.” However, no such warning is necessary because the recipient asked to receive the proposal. Comment 7 to Rule 7.3. Answer B. is incorrect because “advertising material” need not be included on the outside of the envelope of a response to a request for information from a potential client. Answers C & D are incorrect, because they involve the conditions applicable to an attorney’s face-to-face, live telephone, or real-time electronic solicitation. Those conditions don’t apply here, because the attorney has not engaged in any such solicitation, but is responding to an inquiry from a prospective client.
Question 7
The correct answer is Answer A. The name “Centerville Legal Clinic” might create the false impression that the law office is a public legal aid agency. Joe may use the trade name if he guards against that mistake by including a disclaimer that makes it clear that his practice is not a public legal aid agency. See Comment 1 to Rule 7.5. Answers B and D are incorrect, because they don’t address the problem of client confusion. Answer C is incorrect, because trade names for law firms are permissible if they are not confusing or misleading.
Question 8
The correct answer is B.. Under Rule 7.6, the firm cannot accept the appointment if it made political contributions for the purpose of obtaining or being considered for the contract to be the county defender. Answer A is incorrect because the contributions in and of themselves are not improper. They raise an issue under Rule 7.6 only if they were made for the purpose of obtaining or being considered for the contract. Answer C is incorrect because the contributions can be improper even if they do not constitute a crime (but if they are criminal, then Rule 8.4(b) would also apply). See Comment 6 to Rule 7.6. Answer D. is incorrect because Rule 7.6 may not permit the firm to accept the contract if the contributions were made for the wrong reasons.
Question 9
The correct answer is C. Under Rule 7.5(d), lawyers may not state or imply that they practice as a partnership or other organization if that is not true. Here, these lawyers are both solo practitioners, but use of the name “Chapman & McCain” would imply that they are a partnership. Answer A is incorrect because it is not enough to share office space. If the lawyers do not practice as part of the same organization, they may not imply that they do. Answer B. is incorrect because it is irrelevant that the lawyers are using their real names. The problem is the implication that they practice as part of an organization when in truth they do not. Answer D. is incorrect because it would permit a form of “bait and switch.” The firm name may attract clients because it implies that this is a law firm — indeed, that is one of the reasons the lawyers want to use it - and it would be unfair and deceptive to allow clients to come to them for that reason only to be told that, after all, the lawyers do not practice as a firm.
Question 10
The The correct answer is A. Under Rule 7.3(d), a lawyer does not violate the anti-solicitation provisions of Rule 7.3(a) just because the lawyer participates in a prepaid legal services plan, as long as certain conditions are met. Answer B is incorrect, b ecause participation in a pre-paid legal services doesn’t necessarily violatte Rule 7.3(a). Answer C is incorrect, even though it correctly states one of the conditions that must be satisfied under Rule 7.3(d). Even if the lawyer does not own or operate the plan (and here the attorney clearly does not), the Rule would be violated if the plan was soliciting people who were known to be in need of particular legal services covered by the plan. Answer D. is incorrect because an attorney can commit misconduct through the acts of another. See Rule 8.4(a). It is not enough to say that the attorney was not personally involved. Answer A is correct.
Question 11
The correct answer is B. Under Rule 7.2(b), a lawyer is prohibited from giving anything of value in exchange for recommending the lawyer’s services, with certain exceptions. One of those exceptions is that an attorney may pay the usual charges of an attorney referral service if the service is not for profit or is a “qualified referral service,” which means that it has been approved by the appropriate regulatory authority. Answer A is incorrect because regulatory approval is not necessary if the service is non-profit, as it is here. Answer C is incorrect because Antonio is allowed to pay the usual charges of such a non profit service. Answer B. is, therefore, correct. Answer D. is wrong because it is not enough that Antonio does not own or operate the service, although those would be relevant factors if he tried to obtain regulatory approval for a referral service. See Comment 6 to Rule 7.2. If, for example, the service was for profit and not “qualified,” payments to the service would be improper even if Antonio did not own or operate it. Answer B. is correct.
Question 12
The correct answer is D. Mary Jane is planning to engage in telephonic solicitation for employment as a lawyer for pecuniary gain. That is improper unless an exception applies, and the only one that applies is that the prospective client is a lawyer. The rules assume that Patrick can protect himself against solicitation by a trained advocate because of his legal training. Answer A is incorrect because an exception applies to solicitation for pecuniary gain when the target is a lawyer. Answer B. is incorrect because the two stated exceptions to the anti-solicitation rule are not the only ones. Another one, that the prospective client is a lawyer, applies here. Answer C is incorrect because a lawyer’s solicitation will be permitted if it is to a close family member, not to someone unknown to the lawyer but married to a close family member. The reason for the exception for a close family member is that the rules assume a lawyer would not take advantage of such a person. That assumption is slightly less justifiable when the connection is merely by marriage to a close family member. Answer D. is correct.
Question 13
The correct answer is C. Under Rule 7.1, lawyers are permitted to advertise their services as long as the communication is not false or misleading. Answer A is wrong because it is not enough for the statement to be literally true. If it is misleading, the communication violates Rule 7.1. This statement by itself would be misleading because it omits a crucial fact: that the lawyer paid to be on the list. Without that additional information, the statement would lead a reasonable person to conclude that some objective body had found William to be among the best lawyers. Answer C is, therefore, correct. See Comments 1 and 2 to Rule 7.1. Answer B. is incorrect because the lawyer’s constitutional right to advertise does not include the right to make false or misleading statements. Answer D. is incorrect because lawyers are permitted to compare their services if the comparison can be substantiated. See Comment 3 to Rule 7.1. Answer C is correct.
Question 14
The correct answer is D.. Under Rule 8.4(e), lawyers are not permitted to state or imply an ability to achieve results by means that violate the rules of conduct or other law. This advertisement, with one more ace than a deck of cards allows, and with a phone number that includes the word “cheater,” does exactly that. Answer A is wrong because this is not a matter generally of taste. It is a question of a lawyer specifically advertising the ability to help clients by cheating. Answer B. is incorrect because the danger is not client rather the encouragement of illegal conduct and damage to public perception about the profession and the system. Truthfully stating that you cheat the system is still a violation. Answer C is incorrect because there is no such general standard for advertising. This ad runs afoul of a specific prohibition, and the underlying concern is in part disrepute for the profession and the legal system, but the answer as stated is too general. Answer D. is correct.
Question 15
Sonny has two problems. Under Rule 7.1, he may not advertise in any way that is false and misleading. The statement that you will “save money” by hiring him is a comparison of the cost of his services with the competition. Similarly, to say “Guest is the best” is a comparison of the quality of his services with the services of other lawyers. The risk is that these statements may be construed to have been presented with sufficient specificity as to cause a reasonable person to believe that they can be substantiated. If the statements do give rise to that reasonable belief, and they cannot be substantiated, they are misleading under Rule 7.1. See Comment 3 to Rule 7.1.
Question 16
Hattie’s problem is that using the headlines, even if they are truthful, may create an unjustified expectation in the minds of potential clients that Hattie can secure similar results for them. That unjustified expectation would mean that the advertisement would be misleading under Rule 7.1. See Comment 3 to Rule 7.1. If Hattie wants to use the headlines, she will need to include a disclaimer, for example, that she cannot necessarily obtain results like the results depicted or that all cases must be evaluated on their own merits.
Question 17
Rita needs to be particularly careful about in-person solicitation of clients. Although nothing in the Rules of Professional Conduct forbids a lawyer from educating the public about legal issues, this plan will put Rita face-to-face with people she hopes will become clients. Under Rule 7.3, she may not solicit employment from them unless they are lawyers or Rita has a previous professional, family, or close personal relationship with them. Rule 7.3(a). Although Rita may certainly respond to requests for assistance from attendees who initiate contact with her, she may not initiate the relationship by soliciting employment.