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Legally Speaking

 

Issue: June, 2007
Author: John M. Burman

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Ethically Speaking - Communications About Legal Services Part II - the New Wyoming Rules

Effective July 1, 2006, the Wyoming Supreme Court adopted comprehensive changes to the Wyoming Rules of Professional Conduct. The new rules, the first comprehensive set of changes since 1986, include important changes to Part 7, which is entitled “Information About Legal Services.” It is the part that regulates lawyer communications with clients and prospective clients (extra-judicial statements about a client or a case are governed by Rule 3.6, “Trial publicity.”) The rules in Part 7 were substantially revised, and a new one that addresses communications about field of practice was added. Taken together, the revised rules and the additional one represent some of the more significant changes in the rules, changes with which every lawyer needs to be familiar, as they may alter significantly how that lawyer communicates with clients, prospective clients, or both.

The last column contained a discussion of the “Constitutional Framework” for communications about legal services. An understanding of that framework is critical to understanding the rules, as the rules, especially in Wyoming, tend to be driven by the decisions of the United States Supreme Court. That is, the new rules limit lawyer advertising and solicitation to the extent permissible under the decisions of the United States Supreme Court.

Communications in General
Before addressing advertising and solicitation, which tend to get all the attention, it is worth noting that all lawyers communicate with their clients at some time, regardless of whether they advertise or solicit for new ones. Accordingly, the rules regulate all communications with clients or prospective clients, not just advertisements and solicitations. All lawyers, therefore, need to be concerned about ensuring that their communications meet the standards set forth in the Rules.

Communications may not be “false or misleading”
As discussed in the last column, the United States Supreme Court first addressed commercial speech by lawyers in Bates v. Arizona. The Court held not only that advertising by lawyers was constitutionally permissible, but that states may regulate lawyers’ commercial speech, to prevent “false, deceptive, or misleading” communications. In addition, “there may be reasonable restrictions on the time, place, and manner of advertising.” The Wyoming Rules reflect that holding.

Rule 7.1 governs “all communications about a lawyer's services, including advertising . . . .” In accordance with Bates, the Rule’s general standard is that “[a] lawyer shall not make a false or misleading statement about the lawyer or the lawyer’s services.” The Rule contains four paragraphs that describe circumstances under which a statement is considered to be “false or misleading.”

Paragraph (a) addresses both active and passive misrepresentations. A communication is false or misleading under the Rule 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.” The first clause, which addresses active misrepresentations, applies to both statements of fact and law. The second clause, which addresses passive misrepresentations, applies only to statements of fact. Both parts apply to statements that are literally true, but misleading, nevertheless. A truthful statement is misleading “if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.”

Paragraph (b) focuses on the expectations that the communication creates. In particular, a communication is false or misleading if it either “creates an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these Rules . . . or other law.” The former provision has often been used to disallow advertisements or other communications about the results a lawyer has achieved for other clients, such as ads that recite the amount of prior jury verdicts. The rationale is that the circumstances of every case are so different, that even if it is true that a lawyer’s clients have received large verdicts in the past, such an ad creates the expectation that such results can be achieved in cases that are not similar enough to warrant comparison.

Paragraph (c) limits comparisons. A communication is false or misleading if it “compares the lawyer’s services with another specific lawyer’s services unless the comparison can be factually substantiated.” As it is virtually impossible to “substantiate” that one lawyer is better than another, this paragraph basically prohibits any qualitative comparisons.

Finally, paragraph (d) says that a statement is false or misleading if it “contains a dramatization prohibited by 7.2(h), a testimonial or endorsement.” Rule 7.2(h) is discussed below. The use of testimonials is increasing, and at least one state supreme court (Ohio) has said that endorsements, including celebrity endorsements, are permissible. The United States Supreme Court, however, has not addressed the issue.

Communications other than advertisements or solicitations
Communications between a lawyer and a client may, and should, begin with a discussion, and ultimately an agreement, about the scope and terms of the representation. While not required by the Rules, an engagement letter, setting forth that agreement, is both easy and advisable. Furthermore, the general standards of Rule 7.1 apply to communications with new or prospective clients, i.e., communications must not be false or misleading. Accordingly, when “entering into an actual client relationship a lawyer must make fair disclosure of the basis on which fees will be assessed.”

The next written communications with clients are generally correspondence and bills. As with disclosures about the basis for billing, bills themselves must meet the standards of Rule 7.1. In the words of the ABA’s Standing Committee on Ethics and Professional Responsibility, a lawyer has a “duty to render statements to the client that adequately apprise the client as to how that basis for billing has been applied.”

The situation is different, of course, when the payer is a third-party, such as an insurance company or a parent, and not the client. In such cases, it is clear that the lawyer owes his or her duty of confidentiality to the client, not the payer. The normal specificity of bills may disclose otherwise confidential information. To avoid disclosing such information to the payer, the lawyer should have an agreement with the payer and the client about how much detail will be included on the bills.

Finally, the attorney-client relationship should end with the sending of a closing letter. That communication, too, should not be false or misleading. It should include: (1) a description of how the matter was concluded; (2) any original documents in the lawyer’s possessions (such as titles); (3) a statement that the attorney-client relationship is ended; and (4) a description of the lawyer’s or firm’s document retention policy. Especially if the letter includes original documents, it should be sent by certified mail, return-receipt requested.

Advertising
As required by Bates, lawyers in Wyoming may advertise. They are, however, subject to restrictions aimed at preventing “false or misleading” statements, as also permitted by the United States Supreme Court.

Rule 7.2 is entitled “Advertising.” It reflects the relatively restrictive approach that has been taken to lawyer advertising in Wyoming.

Advertisements, as any communications, are “subject to the requirements of Rule 7.1.” They may not, therefore, be “false or misleading.” As one would expect, lawyers may advertise “through public media.” That term is defined broadly, to include “a telephone directory, Internet, legal directory, newspaper or other periodical, outdoor sign or billboard, radio or television . . . or electronic communication.” Advertisements may not involve the solicitation of clients, which is closely regulated by Rule 7.3, which is discussed below.

Lawyers may advertise through “public media, such as . . . [the] Internet, . . . or through written or electronic communication.” Advertisements on the Internet fall within subpart (f), which refers to “electronic media.” The unique issues involving lawyer advertising or communication to prospective clients through high technology have been previously discussed in this column.

A lawyer must retain a copy of any advertisement for “four years.” Until the most recent amendments to the Rules, the retention period was two years. The change to four brings Wyoming’s requirement into conformity with Colorado’s.

Rule 7.2 divides lawyer advertisements into two categories. Those which do not require a disclaimer, and those that do. The distinction depends on the type of information which appears in the advertisements.

The primary standard that applies to lawyer communications is the constitutional one announced in Bates, which is now enshrined in Rule 7.1. And while that case arose in the context of lawyer advertising, its holding applies to all lawyer communications.

Advertisements that do not require a disclaimer
Rule 7.2 permits lawyer advertisements to contain certain information without the need for the disclaimer which is generally required. The permitted information can best be described as biographical:

(1) the name of the lawyer or law firm (and a listing of the lawyers in the firm) and contact information;

(2) dates of admission to the Wyoming Bar and other jurisdictions to which the lawyer or lawyers are admitted to practice;

(3) any other “technical or professional” licenses held by the lawyer(s);

(4) foreign language abilities;

(5) “Prepaid or group legal service plans” in which the lawyer(s) participate;

(6) whether the lawyer(s) accept credit cards;

(7) fees for “initial consultations and fee schedule;” and

(8) the name and location of the lawyer(s) may appear “as a sponsor of a public service announcement or charitable, civic or community program or event.”

Including any other information in the advertisements means that the disclaimer required by Rule 7.2(g) must also appear.

The Disclaimer, and advertisements that require it
An advertisement that includes information not specified in Rule 7.2(c), discussed above, “shall contain” a disclaimer. The required language is in the Rule, and has not changed for a number of years:

The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise.

The part of the Rule which is most often overlooked is the requirement that the disclaimer not be hidden in the fine print. Rather, the disclaimer “shall be in a type size at least as large as the smallest type size appearing in the advertisement.”

In print advertisements, the disclaimer “must appear within the advertisement itself,” except that if the advertisement or listing is in a directory, such as the Yellow Pages, the disclaimer must appear “upon the same or facing page.” While the Rule is silent about where and when the disclaimer must appear when the advertisement is disseminated through electronic media, it seems clear that it must be read or physically appear for a reasonable length of time sometime during the transmission.

The recent amendments to the Rules permit lawyers to communicate the areas of law in which they do or do not practice. In addition, a procedure now exists for certification. Those new provisions are contained in Rule 7.4 and are discussed below.

Other restrictions on advertisements
Paragraph (d) of Rule 7.2 prohibits a lawyer from paying or giving “anything of value to a person for recommending the lawyer’s services.” That prohibition does not preclude a lawyer from paying “the reasonable costs” of the advertisement, the “usual charges” of a legal services plan, or pay for a law practice in accordance with Rule 1.17 (which is a new rule). These exceptions allow a lawyer to “compensate employees, agents and vendors who are engaged to provide marketing or client-development services . . .” The lawyer remains responsible for his/her activities, however, to the extent specified in Rule 5.3 (that Rule makes lawyers responsible for some of the activities of non-lawyer assistants).

Lawyers who wish to advertise must take responsibility for doing so. Accordingly, every advertisement must include the name and office address of the lawyer or law firm “responsible for its content.”

Paragraph (f) contains special requirements for advertisements that appear on electronic media, “such as television, radio and the Internet.” First, such ads may contain “the same factual information and illustrations” as print ads. Second, if a person “appears or speaks as a lawyer,” or otherwise creates the impression that the person is a lawyer, that person “must be a member [in good standing] of the Wyoming State Bar . . .” who will either actually provide the services or be a member of the firm that is doing the advertising. Third, a person who appears as an employee of the lawyer or law firm must be “an actual employee.” Finally, if an actor appears in a permissible role (as a client, for example), the advertisement “must disclose such person is an actor.”

Paragraph (h) reiterates the prohibition in Rule 7.1(d). on “testimonials, endorsements or dramatizations.” By definition, any of those three is “false or misleading” under that Rule.

A lawyer may not advertise under a name that “violates the provisions of Rule 7.5 (Rule 7.5. governs firm names, and is discussed below).”

The Rules previously contained much more detailed provisions regarding the content of advertisements. The new Rules recognize that “[q]uestions of effectiveness and taste in advertising are matters of speculation and subjective judgement.” For better or worse, lawyers have a constitutional right to have “undignified” advertisements, so long as their advertisements are not “false, deceptive, or misleading.” Attempts to further regulate lawyer advertising, therefore, would not only run afoul of constitutional standards, they would “impede the flow of information about legal services to many sectors of the public.” And in this electronic age, television and the Internet are “important source[s] of information about legal services . . .”

Solicitation (Direct contact with potential clients)
The Wyoming Rule on solicitation by lawyers creates three categories of direct contact with prospective clients: (1) contact which is never permissible; (2) permissible contact with persons “known to be in need of legal services;” and (3) “targeted communication” with persons “who may need legal services due to a specific occurrence,” which is only permissible if done in a certain manner after a specified time. Each type of contact is addressed below.

Impermissible contact
As discussed in the last column, states may constitutionally prohibit in-person solicitation of prospective clients. The ABA has recommended, and Wyoming has adopted, a prohibition on in-person solicitation, as well as a ban on live telephone and real-time electronic solicitation. Permissible solicitation is limited, therefore, to written or recorded communication, and Wyoming has adopted a thirty-day rule similar to that in Florida, which the Court upheld.

The ABA’s Model Rules contain a ban on “in-person, live telephone or real-time electronic” solicitation “when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.” The ABA considers live telephone and real-time electronic to be similar to in-person contact because all three types of contact involve the “potential for abuse” that is “inherent” whenever a lawyer and a prospective client have contact because “the layperson [is subject to] the private importuning of the trained advocate . . .”

While the potential for abuse seems lower in live telephone or real-time electronic contact, as opposed to in-person solicitation, Wyoming has adopted the ABA’s approach. The prohibition on Wyoming lawyers having direct contact with prospective clients has been extended to “live telephone [and] real-time electronic contact.” The rationale is also the same. Any of the prohibited forms of communication, in-person, live telephone, or real-time electronic contact, “subjects the lay person to the private importunings of the trained advocate.” Such situations are “fraught with the possibility of undue influence, intimidation and over-reaching.” That possibility, continues the Commentary, “justifies [the] prohibition” on those forms of direct contact.

One reason for treating live telephone and real-time electronic communication the same as in-person solicitation is that none of them leave behind a permanent record that can be reviewed later. Advertising, by contrast, “can be permanently recorded so that they cannot be disputed . . .” Advertisements can also be reviewed to determine whether they conform to applicable standards, unlike conversations, where there will always be at least two versions of what was said, the lawyer’s and the prospective client’s.

Otherwise impermissible direct contact is permitted if the person contacted “is a lawyer or has a family, close personal or prior professional relationship with the lawyer.” The reason for the exception is that “[t]here is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has a close personal or family relationship . . .”

Permissible contact
A lawyer may solicit professional employment from a prospective client “known to be in need of legal services” only by “written, recorded or electronic communication.” Any such communication “shall include the words ‘Advertising Material’ on the outside envelope . . . and at the beginning and ending of any recorded or electronic communication.”

As noted above, the types of direct contact which are permitted, “written, recorded or electronic communication,” all leave behind a permanent record. The record not only allows for review, the mere possibility of review “is itself likely to help guard against statements and claims that might constitute false and misleading” statements.

Targeted communication
While states may not categorically prohibit direct mail communication with prospective clients, they may regulate it. In particular, the United States Supreme Court upheld a Florida rule that prohibited plaintiffs’ lawyers from contacting the victims of an accident or disaster for thirty days after the event. Wyoming has adopted a similar, though more expansive, rule.

A Wyoming lawyer may not contact a prospective client, by any means, “who may need legal services due to a specific occurrence” within thirty days of the date of that occurrence. After thirty days have elapsed, “written communication may be directed” to that prospective client if such communication complies with Rule 7.1 (is not false or misleading) and Rule 7.3(c) (contains the words “Advertising Material” on the envelope).

Solicitation by groups or prepaid legal service plans
Notwithstanding the prohibitions and limitations on solicitation by or on behalf of a lawyer, the lawyer may participate in a “prepaid or group legal services plan operated by an organization not owned or directed by the lawyer” that itself solicits “memberships or subscriptions for the plan.” The contact is not to be with a prospective client “known to be in need of legal services in a particular matter covered by the plan.”

The purpose of permitting such communications is to “inform potential plan members generally of another means of affordable legal services.” Lawyers will not generally know what the organization is doing, nor will they be in a position to control its activities. Even if the organization engages in activities not permitted by the Rules, lawyers will not be liable for those activities as they may “reasonably assume that the plan sponsors are in compliance” with the Rules that regulate communications with clients and prospective clients, including solicitation.”

Specialization
As discussed in the previous column, lawyers have a constitutional right to advertise that they are “certified” as a specialist in some area(s) of the law if the certification means something. The recent amendments to the Wyoming Rules reflect that right.

Rule 7.4 is new (there was a Rule 7.4 in the old rules that referred to firm names; it is now Rule 7.5). It is entitled “Communication of fields of practice.” It contains two general provisions. First, lawyers “may communicate the fact that the lawyer does or does not practice in particular fields of law. Second, in addition to the traditionally permissible indications that one is a patent or an admiralty lawyer, a lawyer may communicate that he or she is “certified as a specialist in a particular field of law” under certain conditions. Those provisions are discussed in greater detail below.

First, any lawyer may now advertise or otherwise communicate “the fact that the lawyer does or does not practice in particular fields of law. This provision permits a lawyer to say that he or she “practices only in certain fields, or will not accept matters except in a specified field or fields . . .” It does not permit a lawyer, however, “to state that the lawyer is a ‘specialist,’ practices a ‘specialty,’ or ‘specializes in’ particular fields, unless that lawyer meets the requirements of paragraph (d) of this Rule.” Paragraph (d) is discussed below.

Allowing lawyers to advertise those areas of the law in which they do or do not practice should help both prospective clients and lawyers. The former will have a better idea of which lawyers to contact about a certain problem. The latter will not be contacted about matters they do not handle. The key for lawyers will be to avoid using words that suggest “specialization” or “certification.”

Allowing lawyers to communicate that they are “certified” is a new feature of the Wyoming Rules, and it is carefully circumscribed. A lawyer may not state that the lawyer is certified unless two conditions are met. First, the organization that does the certifying must have been “approved by the Wyoming State Bar.” Second, “the name of the certifying organization [must be] clearly identified in the communication.”

Communicating that one is certified is constitutionally permissible only if the certification means something. In Wyoming, “[c]ertification signifies that an objective entity has recognized that a lawyer has advanced knowledge and/or experience in the specialty area greater than is suggested by general licensure to practice law.” A reputable certifying organization “may be expected to apply standards of experience, knowledge and proficiency to insure that a lawyer's recognition as a specialist is meaningful and reliable.” The idea is to protect potential clients by communicating accurate information about the lawyer and the certifying organization. Accordingly, “the name of the certifying organization must be included in any communication regarding the certification.”

The control is that a Wyoming lawyer may not communicate that he or she is certified until the certifying organization has been approved by the Wyoming State Bar. As this Rule is new, the Wyoming State Bar will have to develop a mechanism for determining whether and when to approve certifying organizations.

Firm Names
Lawyers have traditionally practiced under their own names or the names of some or all of the firm’s partners, whether living or deceased. Some lawyers, however, now practice under other names, and the question becomes what types of names are permissible for a lawyer or a law firm?

Rule 7.5 (formerly Rule 7.4) is entitled “Firm names and letterheads.” Paragraph (a) begins with the sensible proposition that no firm name may violate Rule 7.1, i.e., no firm name may be “false or misleading.” The use of names of “living or deceased members [of the firm] where there has been a continuing succession in the firm’s identity . . .” is neither “false [n]or misleading,” and is, therefore, permissible.

Although states may prohibit the use of trade names by professionals, Wyoming’s Rules allow lawyers to use them. Although the term is not defined, it seems to refer to the use of a name that is not tied to the identity of any lawyers currently or formerly associated with the firm (the example given in the commentary is “a geographical name.”)

A lawyer’s use of a “trade name” is permitted so long as it “does not imply a connection with a government agency or with a public or charitable legal services organization . . .” Such an implication would, of course, be “misleading,” and impermissible under Rule 7.1. To avoid any impermissible implication, “an express disclaimer that [the law office] is a public legal aid agency may be required . . .”

Paragraph (b) addresses names for law firms that have offices in more than one jurisdiction. Such a firm “may use the same or a similar name in each jurisdiction . . .” The key, however, is that “the identification of the lawyers in an office . . . shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.” The purpose, once again, is to avoid misleading anyone into believing that all lawyers are licensed in the jurisdiction when they may not be.

The name of a lawyer who holds “public office” is not to be used in the firm name or in any of the firm’s communications “during any substantial period in which the lawyer is not actively and regularly practicing with the firm.” The Rule has never been applied to lawyers who serve in the Wyoming Legislature, as that body only meets part of the time, and the lawyers generally do not cease practicing entirely while the Legislature is in session.

To avoid misleading the public, lawyers are required to “clearly and accurately state the organizational structure of the organization in which they practice.” The concern is that lawyers not use a name that suggests they are in a firm if they are not. Once again, the attempt is to avoid misleading the public. If the name is potentially misleading as to the nature of the entity, “adding a disclaimer such as ‘not a partnership’ or ‘an association of sole practitioners’” will not suffice. The name may not be used. Lawyers who share office space, but are not partners, have to be especially careful, and “they may not, for example, denominate themselves as ‘Smith and Jones,’ for that title suggests” they are in a firm, when they are not.

Summary
Perhaps no area of the new Wyoming Rules of Professional Conduct have been changed more than the rules on communicating information about legal services. Those changes reflect the holdings of the United States Supreme Court, and the Rules reflect Wyoming’s generally conservative approach to lawyer communications. Whether one agrees with the Court or not is immaterial. The simple fact is that lawyers have a constitutional right to advertise, a limited right to solicit, and the right to communicate that they are certified.

As the changes to Wyoming’s Rules generally liberalize the previous ones, it is unlikely that any lawyer’s current forms of communication have become impermissible. Rather, lawyers may now decide if they wish to use other or different methods of communicating with clients or prospective clients.

Of all the changes, the most significant are to allow all lawyers to communicate their fields of practice to the public, and to permit some who are certified to communicate that, too. Both changes should help prospective clients by providing them more information about lawyers, and lawyers by eliminating prospective clients with problems the lawyers choose not to handle.

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 jmburman@uwyo.edu.

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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