Rule 4-7.2 Information About Legal Services - Advertising

COMMENT

[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

Paying Others to Recommend a Lawyer.

[2] A lawyer is allowed to pay for advertising permitted by this Rule 4-7.2, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer’s services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral programs and pay the usual fees charged by such programs. Rule 4-7.2(c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule. Rule 4-7.2(c) also does not prohibit paying a person for making a testimonial or endorsement in compliance with Rule 4-7.1(h).

SUPPLEMENTAL MISSOURI COMMENT

Advertising concerning a lawyer's services should be motivated by a desire to educate the public to an awareness of legal needs and to provide information relevant to the selection of appropriate counsel. Information communicated in advertising should be disseminated in an objective and understandable fashion and should be relevant to a prospective client's ability to choose a lawyer. A lawyer should strive to communicate such information without undue emphasis upon advertising stratagems, which serve to hinder rather than to facilitate intelligent selection of counsel. Tasteful advertising is a matter of subjective interpretation. However, in all communications concerning a lawyer's services, a lawyer should avoid advertising that serves to denigrate the dignity of the profession or trust in courts, of which every lawyer functions as an officer.

Rule 4-7.2(d) and (e) have been added to jointly address the problem of advertising that experience has shown misleads the public concerning the location where services will be provided or the lawyer who will be performing these services. Together they prohibit the same sort of “bait and switch” advertising tactics by lawyers that are universally condemned.

Rule 4-7.2(e) also prohibits advertising the availability of a satellite office that is not staffed by a lawyer at least on a part-time basis. Rule 4-7.2 does not require, however, that a lawyer or firm identify the particular office as its principal one. Experience has shown that, in the absence of such regulation, members of the public have been misled into employing a lawyer in a distant city who advertises that there is a nearby satellite office, only to learn later that the lawyer is rarely available to the client because the nearby office is seldom open or is staffed only by lay personnel.

Rule 4-7.2(e) is not intended to restrict the ability of legal services programs to advertise satellite offices in remote parts of the program’s service area even if those satellite offices are staffed irregularly by attorneys. Otherwise, low-income individuals in and near such communities might be denied access to the only legal services truly available to them.

When a lawyer or firm advertises, the public has a right to expect that lawyer or firm will perform the legal services. Experience has shown that lawyers not in the same firm may create a relationship wherein one will finance advertising for the other in return for referrals. Nondisclosure of such a referral relationship is misleading to the public. Accordingly, Rule 4-7.2(d) prohibits such a relationship between an advertising lawyer and a lawyer who finances the advertising unless the advertisement discloses the nature of the financial relationship between the two lawyers. Rule 4-7.2(d) also requires disclosure if a broadcaster receives remuneration from a lawyer appearing on any television, radio, or other electronic program purporting to give the public legal advice.

In the case of television, the disclosure required by Rule 4-7.2(f) may be made orally or in writing. In the case of radio, the disclosure must be made orally. The disclosure required by Rule 4-7.2(f) may, at the option of the advertiser, include the following language: “This disclosure is required by rule of the Supreme Court of Missouri.” This disclosure is only required for advertisements in Missouri.

Disclosures that are large in size, are emphasized through a sharply contrasting color, and, in the case of television advertisements, remain visible or audible for a sufficiently long duration are likely to be more effective than those lacking such prominence. The disclosure should be prominent enough that the ordinary person will actually see and understand it in the context of the actual advertisement. Disclosures generally are more effective when they are made in the same mode (visual or oral) in which the claim necessitating the disclosure is presented.

Even if a disclosure is large in size and long in duration, other elements of an advertisement may distract the ordinary person so that they may fail to notice the disclosure. The advertisement should take care not to undercut the effectiveness of disclosures by placing them in competition with other arresting elements of the advertisement.