Issue: April, 2007
Author: John M. Burman
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Ethically Speaking - Communications About Legal Services
We tend to think of advertising and solicitation by lawyers when we think of lawyers communicating with clients or prospective clients. And while advertising and solicitation draw most of the attention, they are not the only forms of lawyer communication with clients or prospective clients. Rather, virtually all lawyers communicate in some way(s) with such persons, and all should, therefore, be aware of the limitations that apply to their communications. Since the parameters of permissible lawyer speech are established by the First Amendment to the United States Constitution, as interpreted by the United States Supreme Court, it is critical to understand the constitutional framework before analyzing the new Wyoming Rules of Professional Conduct, which differ significantly from the previous version. Accordingly, this article will discuss that framework, and the next will discuss the new Wyoming rules.
One who becomes a lawyer does not thereby lose his or her First Amendment right to make extra-judicial (out of court) statements. The same is true, although to a lesser extent, when it comes to a lawyer’s communications with prospective clients (advertising or solicitation). Such communications are protected, but to a lesser extent than other extra-judicial statements by lawyers.
Lawyer communication with clients or prospective clients falls into five general areas: (1) general communications; (2) advertising seeking new clients; (3) solicitation of prospective clients; (4) communications about the lawyer’s specialization; and (5) the creation and use of firm names. The constitutional framework for each is discussed below.
Lawyers traditionally did not advertise or otherwise actively seek new clients. Rather, law was thought to be a profession, and professionals let clients come to them, and not vice versa. The tradition became part of the rules of ethics. The American Bar Association’s (“ABA”) Model Code of Professional Responsibility (the predecessor to the current Model Rules), for example, contained an express prohibition on lawyers advertising for clients, as did its predecessor, the 1908 ABA Canons. That all changed in 1977, with the United States Supreme Court’s decision in Bates v. State Bar of Arizona.
Advertising for Clients
Before discussing lawyer advertising, it is useful to define it. According to the Seventh Circuit, “[t]he term ‘advertising’ has been defined as follows: ‘the action of calling something (as a commodity for sale, a service offered or desired) to the attention of the public especially by means of printed or broadcast paid announcements.’ Webster's Third New International Dictionary of the English Language Unabridged 31 (1963).” The key is that it is a communication to “the public,” not to any specific person or persons known to be in need of legal services. It is, in short, a general invitation to use the services of a lawyer. The issue of the constitutional propriety of advertising by lawyers came to the fore in the United States Supreme Court’s opinion in Bates v. State Bar of Arizona.
Bates involved two lawyers in Maricopa County, Arizona (Phoenix). They decided to open a “legal clinic” to provide “legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid . . .” The clinic focused on providing “routine matters, such as uncontested divorces . . .” After two years, the lawyers who operated the clinic realized that they would have to generate more clients. The “legal clinic” concept would fail, they believed, “unless the availability of legal services at low cost was advertised and in particular, fees were advertised.”
Despite the State of Arizona’s ban on lawyer advertising, the lawyers placed an ad in the Arizona Republic, a newspaper of general circulation in the Phoenix area, which stated that the legal clinic was “offering ‘legal services at very reasonable fees,’ and listed their fees for certain services.”
The lawyers conceded that their advertisement was in violation of Arizona’s rule prohibiting lawyer advertising, and the ads resulted in a grievance. The state bar committee which heard the grievance recommended a suspension of six months, which was reduced to one-week by the Arizona Board of Governors. That suspension was reduced to a censure by the Arizona Supreme Court. The lawyers then sought review in the United States Supreme Court, claiming that the rule prohibiting lawyers from advertising violated their First Amendment rights.
The previous year, the United States Supreme Court had held that pharmacists have a constitutional right to advertise prescription drug prices. The Court looked to that decision in considering the issue of attorney advertising. In discussing the reasons for permitting the advertisement of drug prices, the Bates Court said that advertising “should not be withdrawn from [First Amendment] protection merely because it proposed a mundane commercial transaction.” Such “commercial speech,” it said, “serves to inform . . . the availability, nature and price of products and services and thus performs an indispensable role . . .”
After rejecting all the arguments against lawyer advertising, the Court held that lawyer advertising is constitutionally similar to advertising prices for pharmaceuticals. Each involves commercial speech. Each, therefore, is entitled to First Amendment protection; that protection is not, however, absolute. States may regulate commercial speech, including lawyer advertising, to prevent “false, deceptive, or misleading” communications. In addition, “there may be reasonable restrictions on the time, place, and manner of advertising.”
Several years later, the Court was faced with the related issue of whether attorneys may include illustrations in their advertisements. Once again, the Court came down on the side of the lawyer.
Phillip Zauderer was an attorney practicing in Columbus, Ohio. He placed a print advertisement in the Columbus Citizen Journal seeking clients who had used the Dalkon Shield, an intra-uterine device, and been injured. The advertisement “featured a line drawing of the [device] . . .” The ad worked. Zauderer received over 200 inquiries from the ad; he also received a public reprimand from the Ohio State Bar. The United States Supreme Court granted certiorari to decide several issues, including “whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations . . . . The answer, said the Court, was “no.”
The Court held that the inclusion of the illustration in the advertisement did not change the communication’s fundamental nature. Rather, the communication, including the illustration, was “advertising pure and simple . . .” Accordingly, “[w]hatever else the category of commercial speech may encompass . . . it must include appellant's advertisements.”
The Court ratified the use of illustrations in lawyer advertising so long as they are not false or misleading, the general standard that applies to lawyer advertising. “The use of illustrations or pictures in advertisements serves important communicative functions . . .” As illustrations are constitutionally permissible, states may not categorically ban them. Rather, when a state seeks to prohibit a particular illustration, “the burden is on the State to present a substantial governmental interest justifying” the preclusion. The Court found that the state was unable to carry that burden in the Zauderer case, and whatever potential abuses might result from the use of illustrations, those abuses could be combated by means short of an absolute ban.
Wyoming’s Rule 7.2, which will be discussed in the next issue, implements the Court’s decisions in Bates and Zauderer. It regulates attorney advertising in Wyoming.
Solicitation of Prospective Clients
In contrast to advertising, which is a general invitation directed at the public, solicitation is aimed at a person or persons known or thought to be in need of legal services. As the United States Supreme Court has noted, professional solicitation is qualitatively different than advertising. When solicitation occurs, “[a] seller has a strong financial incentive to educate the market and stimulate demand for his product or service, so solicitation produces more personal interchange between buyer and seller than would occur if only buyers were permitted to initiate contact.” Solicitation by attorneys may take many forms, but the form in which it first reached the Court was in-person solicitation.
In 1978, the year after the Bates decision permitting lawyer advertising, the Court addressed the constitutionality of prohibiting lawyers from in-person solicitation of prospective clients. In that case, a lawyer made in-person visits to two young women who had been involved in an automobile accident; the purpose of the lawyer’s visits was to convince them to retain him to be their lawyer. The solicitation was in clear violation of an Ohio rule, and the Court granted certiorari “to consider the scope of protection of another form of commercial speech, and an aspect of the state’s authority to regulate and discipline members of the bar . . .”
The lawyer argued that the Ohio State Bar had acted unconstitutionally in prohibiting lawyers from engaging in in-person solicitation as such solicitation necessarily involves speech, which made in-person solicitation “indistinguishable” from lawyer advertising. The Court disagreed.
First, the Court distinguished between speech and speech which is merely part of a course of conduct. “‘[I]t has never been deemed an abridgement of freedom of speech . . . ,” said the Court, “to make a course of conduct illegal merely because the conduct was in part . . . carried out by means of language . . .’” Second, the Court classified in-person solicitation as “a business transaction in which speech is an essential but subordinate component.”
The Court then discussed the dangers of in-person solicitation, as opposed to advertising. While advertising “simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection.”
The Court said the State’s interest in prohibiting in-person solicitation is “particularly strong [because i]n addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions.” Accordingly, a rule prohibiting lawyers from engaging in in-person solicitation is a permissible, “prophylactic measure whose objective is the prevention of harm before it occurs.”
The Court summed up its opinion by declaring that the solicitations that had occurred in the Ohralik case “present a striking example of the potential for overreaching that is inherent in a lawyer’s in-person solicitation of professional employment.” It is constitutionally permissible, therefore, for a state to prohibit in-person solicitation by lawyers. Wyoming’s Rule 7.3 prohibits in-person solicitation, and will be discussed in the next issue.
Having held that in-person solicitation could be constitutionally banned, the Court was asked in 1988 to rule on the constitutionality of solicitation by direct mail. Shapero v. Kentucky Bar Association addressed whether states may “categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.”
Richard Shapero was an attorney practicing in Kentucky. He asked the Kentucky Attorney Advertising Commission for approval of a letter to send to prospective clients who had received foreclosure notices. The request was not found to be false or misleading, but it was denied anyway because a Kentucky Supreme Court rule prohibited direct mail solicitation of prospective clients known to be in need of legal help because of a particular occurrence. Shapero asked the United States Supreme Court to review the denial. The Court agreed to.
The Court began its analysis of direct-mail solicitation by noting that lawyer advertising is “constitutionally protected commercial speech.” It then distinguished between in-person solicitation and written advertisements or letters. “Like print advertising, petitioner’s letter–and targeted direct-mail solicitation generally–‘poses much less risk of overreaching or undue influence’ than does in-person solicitation. . . . Neither mode of written communication involves ‘the coercive force of the personal presence of a trained advocate’ or the ‘pressure on the potential client for an immediate yes-or-no answer . . .’” Furthermore, both kinds of written communications provide useful and important information about the availability of legal services to the recipients. Such information “can readily be put in a drawer to be considered later, ignored, or discarded.”
The Court also considered the use of bold and capital letters. “But a truthful and nondeceptive letter, no matter how big its type and how much it speculates can never ‘shou[t] at the recipient’ or ‘gras[p] him by his lapels.’” A state may not, therefore, categorically ban direct-mail solicitation of clients known to be in need of legal services.
Although Shapero recognized attorneys’ right to solicit clients by direct-mail, the Court subsequently held that the right is not unfettered. States may, therefore, limit direct-mail solicitation.
The Florida Bar passed a rule that banned plaintiffs’ lawyers from making written contact with the victim(s) of an accident or disaster within thirty days of the date of that incident. The rule was challenged, leading to the opinion in Florida Bar v. Went For It, the most recent decision in which the Court has addressed the constitutional limits on lawyers’ commercial speech. Despite having held that direct-mail solicitation by attorneys was constitutionally permissible, the Court limited that right by upholding the Florida rule.
Florida Bar was an unusual five-four decision. Justice O’Connor wrote for the majority, joined by Chief Justice Rehnquist, and Justices Scalia, Thomas, and Breyer. Justice Kennedy, joined by Justices Stevens, Souter, and Ginsburg, dissented. While the majority and dissenting opinions differed about the proper result, they agreed on the standard to analyze cases involving attorneys’ communications with prospective clients.
First, lawyers’ communications with the public, in general, or with potential clients, in particular, are “commercial speech,” which is “accorded a measure of First Amendment protection,” but that protection “is not absolute.” Second, because commercial speech is entitled to some First Amendment protection, restrictions on such speech are reviewed under the “‘intermediate’ scrutiny.”
Restrictions on lawyer speech must meet a three-part test: (1) The government must have a “substantial interest” to justify the restriction; (2) The government must show that the restriction “directly and materially advances that interest;” and (3) The restriction must be “narrowly drawn.” The majority found that the Florida rule satisfied all three criteria.
The majority held that Florida had two “substantial interests.” First, “[s]tates have a compelling interest in the practice of professions within their boundaries.” And second, “the protection of potential clients’ privacy is a substantial state interest.” The thirty day restriction on mailing to victims or their families was then found to advance those substantial interests directly and materially. Finally, the third prong of the test was met because the restriction was “reasonably well-tailored” to achieving its objectives. The dissenters agreed on the test, but came to a completely contrary result. Wyoming Rule 7.3 (Direct contact with prospective clients) is Wyoming’s version of the Florida rule. It, too, will be discussed next time.
Attorney Specialization or Certification
The final issue that the Court has addressed involves whether a lawyer may constitutionally advertise or otherwise communicate that he or she is a specialist. The answer is a qualified “yes.”
The State of Illinois had a rule that prohibited lawyers from holding themselves out as specialists, other than in admiralty, trademark, or patent law. Attorney Gary Peel had became certified as a civil trial specialist by the National Board of Trial Advocacy (“NBTA”). He had that information printed on his letterhead. Mr. Peel subsequently received a public censure for suggesting that he was a specialist. That censure was affirmed by the Illinois Supreme Court, but reversed by the United States Supreme Court for violating the First Amendment.
The issue before the Court was “whether a lawyer has a constitutional right . . . to advertise his or her certification as a trial specialist by the NBTA.” The Court found that “some consumers will infer” from the statement on Peel’s letterhead, that his qualifications “exceed the general qualifications for admission to a state bar.” That was constitutionally permissible, said the Court, so long as the NBTA’s certification meant something, as “the strength of a certification is measured by the quality of the organization for which it stands.” The Court found the NBTA’s requirements to be “objectively clear.” Accordingly, Mr. Peel’s letterhead “was neither actually nor inherently misleading.” It was, therefore, constitutionally permissible.
Under Peel, attorneys have a First Amendment right to communicate that they are “certified” if the certification means something. That right does not include “certification” by or membership in an organization if certification or membership does not mean anything, such as organizations in which membership is contingent only upon paying a fee. It is constitutional, therefore, for a state to limit attorneys’ communications to certification by reputable organizations, but it is not constitutional to prohibit such communications entirely. Wyoming’s new Rule 7.4, which is completely new–old Rule 7.4 is now Rule 7.5–implements that distinction.
Whether we like it or not, lawyer advertising is here to stay. It is commercial speech, which is entitled to limited constitutional protection. Accordingly, attorneys have the right to advertise. Further, lawyers have a limited right to solicit potential clients. And they have the rights to do either in ways that we might consider tacky or inappropriate. Finally, attorneys have a limited right to communicate that they are certified in some certain area(s) of the law.
Within the constitutional framework discussed above, states may regulate commercial speech to prevent false, misleading or deceptive speech. In addition, they may prohibit in-person solicitation and limit direct-mail solicitation. States vary significantly in how they regulate lawyers’ commercial speech. Although Wyoming’s new rules liberalize the restrictions which were previously in effect, the state’s approach remains more conservative than that advocated by the American Bar Association, and that of many other states. The new Wyoming rules will be discussed in the next issue.
John M. Burman teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at firstname.lastname@example.org.
The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.
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