proro class 26

lawyer advertising. 
either to other lawyers or to non-lawyer professionals provided that the referral agreement is not exclusive and provided that the client is told that you have this reciprocal referral agreement.

comment 1: rule 7.1 very much intented to apply to lawyer advertising/ self-promotion of services.
comments 2&3: cover the situation of truthful but misleading advertising

see rule 7.3, comment 6:


"i'm back on my feet" problem.
is there a danger that potential clients would be mislead by this advertisement?
it's not per se unethical to have an ad and not include a disclaimer, but it is fine for a state to require a disclaimer and not run afowl of the first amendment.

rule 7.1 - 7.3
don't need anti-advertising rules to punish fraud. the ads contain information which is helpful for consumers, drives down legal services prices...

what explains the anti-advertising rules? because they are concerned with the "dignity of lawyers"

after SCOTUS struck down flat bans on advertisements so that competition on basics just as price and credentials improve, bar associations have been engaged in rear-guard action to protect/restrict against things that are/not permissible. what's annoying isn't the ads but the claims that these rules are for consumer protection.

pape&chandler pit bull case: "what these advertisements do is demean all lawyers and the public's trust in lawyers."

if a doggy ampersand can bring down the profession, then the profession has more problems than the rule itself can solve. lawyers nor the industry is not inerently dignified. should be based on
1. behavior of lawyers
2. how clients interpret behavior of the lawyers

clients are entitled to any information that helps to make this kind of info. the lawyers who would run these types of ads, are the lawyers who would let these types of ads run.

bates: "cynicism is bred by the fact that lawyers don't advertise aggressively enough."

the State can ban certain ads, can require disclaimers, can ban/regulate certain descriptions of services provided, but absolute bans to lawyer advertising are a no-no

this is not just about what single practitioner and small firms can do, but law firms as well. a large firm isn't going to take out time on TV or in the paper, but instead searches for more sophisticated marketing strategies.

orahlik 
the lawyer says that this is no different than bates.
the court says that it's not: "The solicitation of business by a lawyer through direct, in-person communication with the prospective client has long been viewed as inconsistent with the profession's ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. . . . [T]he State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity."

commercial speech rights for lawyers do not extend to solitication of strangers (prospective clients) for profit. pro bono solitication however is not covered by this rule, and it is okay. it may be that we want to protect people's autonomy to create an attorney-client relationship. but these are still perception issues still involved as well, in terms of what's decorous or invasive.

fit: ohralik says that the State does not have to weigh less intrusive means of regulating the means of this solicitation, it can just bar it.

would expect that you could ban (something)
eden v. bane -- FL bans cold-calls to medium sized clients, and distinguishes ohralik to say that there's a difference between CPAs and lawyers

zauderer case:
advertisement asking if you need representation for IUD use, contact our firm. the ad successfully draws many clients.
the ad seems to give advice, it doesn't contain a disclaimer about costs, it has an illustration.
zauderer wins on every claim except the disclaimer language issue.

zauderer is also a "fit" case: the State has a legit interest in preventing deceptive ads

shapero:
the lawyer sends targeted letters to potential victims of foreclosure actions. the rule in KY at the time prohibits mail solicitation that is targeted at a person knwon to need legal services, if the significant motive for the lawyer doing so is pecuniary gain.

not ohralik because mail solicitation presents a lower risk of imposition, because the mail can be ignored unlike a face to face conversation.

N.B. -- the nature of a phone call is problematic


*** read Justic O'Connor's dissent**

"membership in the profession means you will temper your personal... to the aims of public service"
absent proof of a causal relationship between marketing and professionalism, to whom shoudl the court defer -- to the state's perception of a connection, to first amendment, shoudl it accept the state's claims at face value, rely on intuition... what should the court take as fundamental in deciding who wins these kinds of cases?