ATTORNEY ADVERTISING IN TEXAS AFTER THE 2005 RULES CHANGES

Transcription

1 ATTORNEY ADVERTISING IN TEXAS AFTER THE 2005 RULES CHANGES WILLIAM J. CHRISS Law Office of William J. Chriss, P.C. Of Counsel to Gravely & Pearson, L.L.P. 515 Congress Ave. Suite 2355 Austin, Texas BRANDY M. WINGATE Senior Staff Attorney, Thirteenth Court of Appeals 100 E. Cano, 5 th Floor Edinburg, Texas brandy.wingate@courts.state.tx.us State Bar of Texas 23rd ANNUAL ADVANCED CIVIL APPELLATE PRACTICE COURSE September 10-11, 2009 Austin CHAPTER 24

2

3 WILLIAM J. CHRISS Of counsel GRAVELY & PEARSON, L.L.P. 515 Congress Ave. Suite 2355 Austin, Texas (512) Complex Civil Litigation and Appeals, including Insurance Coverage and Extra-contractual Claims, Ethics and Legal Malpractice, Discrimination, Defamation, Privacy, and other Personal Injury EDUCATION J.D., Harvard Law School, Mark DeWolfe Howe Fellow (Civil liberties/legal history). Ph.D. (pending-a.b.d.) in History, University of Texas at Austin (graduation expected 2010). M.A. in History & Politics (Political Science), Texas A&M University at Kingsville. M.A. in Applied Orthodox Christian Theology, St. John of Damascus Institute of Theology, University of Balamand. B.A. with high honors (Government), The University of Texas at Austin, Phi Beta Kappa, Magna Cum Laude, Junior Fellow (Constitutional History), Rhodes Scholarship Nominee. PROFESSIONAL ACTIVITIES, LICENSES, AND AWARDS (abridged): Board Certified: Civil Trial Law and Personal Injury Trial Law, Texas Board of Legal Specialization Martindale-Hubbell: "A.V." rated. Licensed: State Bar of Texas, U.S. District Court for the Southern District of Texas, U.S. Court of Appeals for the Fifth Circuit, U.S. Supreme Court. Executive Director and Dean of Curriculum and Instruction, Texas Center for Legal Ethics and Professionalism ( ). Recipient of the 2005 Texas Bar Foundation Dan R. Price Award for excellence in legal writing, unwavering commitment to clients, and service to the profession. President, Corpus Christi Bar Association ( ). Chair, District 11 Grievance Committee, State Bar of Texas ( ). Texas Board of Legal Specialization Advanced Civil Trial Advisory Panel ( ). Committee on Pattern Jury Charges of the State Bar of Texas- Business, Consumer, Employment; Chair, Contract Law subcommittee. ( ). Governing Council of the Insurance Section of the State Bar of Texas. Governing Council of the Litigation Section of the State Bar of Texas (ex officio). Governing Council of the Appellate Law Section of the State Bar of Texas (ex officio). American Board of Trial Advocates. PUBLISHED WORKS (abridged): Commentary on the Texas Disciplinary Rules of Professional Conduct Governing the Duties between Lawyer and Client, (with John F. Sutton, Jr.) Texas Lawyers Professional Ethics, 4 th ed. (State Bar of Texas, 2007). Personhood and the Right to Privacy in Texas South Texas Law Review 48, no. 3 (Spring 2007) Coverage for Ensuing Water Damage under Texas Property Insurance Policies. South Texas Law Review 46, no. 4 (Summer 2005) ; Coverage for Ensuing Water Damage under Texas Homeowners Policies. Journal of Texas Insurance Law 5, no. 1 (Feb. 2004):

4

5 Brandy M. Wingate Senior Staff Attorney Thirteenth Court of Appeals 100 E. Cano, 5 th Floor Edinburg, Texas Phone: (956) brandy.wingate@courts.state.tx.us EDUCATION B.A. in Anthropology, Texas A & M University J.D., magna cum laude, Baylor University School of Law BIOGRAPHICAL INFORMATION PROFESSIONAL ACTIVITIES Law Clerk to former Texas Supreme Court Chief Justice Thomas R. Phillips Co-Editor-in-Chief of The Appellate Advocate ; Associate Editor State Bar of Texas Local Bar Services Committee Texas Young Lawyer s Association Minority Involvement Committee and Member Services Committee Hidalgo County Bar Association; Treasurer, ; Board of Directors ; Chairperson, Women s Bar Section ; Chairperson, Appellate Bar Section Hidalgo County Young Lawyers Association: Secretary, ; Board of Directors PROFESSIONAL AWARDS Recognized as a Rising Star in appellate practice in the 2006, 2007, and 2008 Texas Super Lawyers Rising Stars Edition of Texas Monthly Stars of the Bar Award, State Bar of Texas: co-authored of a series of eight articles titled, Anatomy of an Appeal: TRAPS (Texas Rules of Appellate Procedure) for the Trial Lawyer, recognized as best substantive series in a bar association newsletter Outstanding Board Member Award 2008, Hidalgo County Bar Association Board of Directors Outstanding Law Section Award 2008 for leadership in Women s Bar Section, Hidalgo County Bar Association PUBLICATIONS Brandy M. Wingate & Tina S. Koch, Would You Swear to That? Problems With Verifying a Petition for Writ of Mandamus, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 19 No. 4, p. 26 (Summer 2007) Brandy M. Wingate & Robert B. Gilbreath, Review of Arbitration Awards After Hall Street Associates v. Mattel: The Supreme Court Says No to Contractual Expansion... and to Manifest Disregard of the Law?, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 20 No. 4, p. 277 (Summer 2008) Brandy M. Wingate & Dan Worthington, 2009 Legislative Preview, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 21 No. 3, p. 161 (Spring 2009) Monthly contributor to The Summons, the Hidalgo County Bar Association Newsletter, including a monthly series, Cases to Use and Peruse Contributing author to Texas Lawyer s Professional Ethics (4th ed. 2007). Assisted Chief Justice Thomas R. Phillips of the Texas Supreme Court in drafting The Constitutional Right to a Remedy, published in Volume 78 of the New York University Law Review

6

7 TABLE OF CONTENTS I. ADVERTISING UNDER THE NEW RULES... 1 II. Rule 7.01: Firm Names and Letterhead... 1 A. Misleading Firm Names... 1 B. Firm Offices and Jurisdictional Limitations... 3 C. Official Positions... 3 D. Lawyer Affiliations... 3 III. RULE 7.02: COMMUNICATIONS CONCERNING A LAWYER S SERVICES... 4 A. False, Misleading, or Deceptive Communications... 4 B. Past Successes or Results and Unjustified Expectations... 4 C. Comparison of Lawyers Services... 6 D. Improper Influence... 7 E. Area of Practice... 7 F. Client Testimonials... 7 IV. RULE 7.03: PROHIBITED SOLICITATIONS AND PAYMENTS... 8 A. Direct Solicitation... 8 B. Referrals... 9 C. Client Advances... 9 D. Prohibitions Extend to Client Agreements and Receipt of Fees V. RULE 7.04: ADVERTISEMENTS IN THE PUBLIC MEDIA A. Coverage B. Advertising Areas of Practice C. Required Disclosures Lawyer s name Geographic location Contingent Fees Likelihood of Referral Advertising Paid for by Other Lawyers or Done as Part of an Advertising Cooperative Infomercials Disclaimer Formatting D. Prohibited Content Actor Portrayals of Lawyers Mottos, Slogans, or Jingles E. Practice Management and Record Keeping VI. RULE 7.05: PROHIBITED WRITTEN, ELECTRONIC, OR DIGITAL SOLICITATIONS A. False or Misleading Information B. Required Disclosures and Banned Content Labeling Solicitations as an ADVERTISEMENT No Resemblance to Legal Pleadings or Legal Documents Packaging or Subject Line Content Disclosure of How Information was Obtained Exceptions C. Practice Management and Record Keeping VII. REVIEW BY THE ADVERTISING REVIEW COMMITTEE A. The Committee B. What Must Be Submitted? i

8 C. Review Process and Consequences for Non-filing VIII. CONCLUSION ii

9 ATTORNEY ADVERTISING IN TEXAS AFTER THE 2005 RULES CHANGE I. ADVERTISING UNDER THE NEW RULES The rules governing lawyer advertising in Texas are found in part VII of the Texas Disciplinary Rules of Professional Conduct. 1 The advertising rules were amended in The rules restrict both what the lawyer can claim about his or her services and how the lawyer circulates these claims to the public and others. 3 These rules are important because violations subject lawyers to the grievance process. 4 The purpose of Part VII of the rules is to protect the public from false, misleading, and deceptive communications, 5 although that purpose may not always be clear from the text of the rules. In fact, at times the rules are counterintuitive. That is why it is so important to know the rules and to seek help when necessary. Fortunately, the State Bar has created an Advertising Review Committee (the ARC ) to assist lawyers and to ensure compliance with the rules. 6 The ARC drafts interpretive comments, which are published in the Texas Bar Journal and can be found on the State Bar s website. 7 These interpretive 1 TEX. DISCIPLINARY R. PROF L CONDUCT Part VII, reprinted in TEX. GOVT. CODE ANN., tit. 2, subtit. G app. (Vernon Supp. 2008). 2 The 2005 Rule Revisions updated the rules to apply to all communications, including audio, digital, and electronic communications. The Texas Supreme Court approved the revisions, effective June 1, Supreme Court of Texas, Misc. Docket A. For a detailed description of the process of adoption of the rules, see Texans Against Censorship, Inc. v. State Bar of Texas, 888 F. Supp. 1328, (E.D. Tex. 1995). 3 See generally TEX. DISCIPLINARY R. PROF L CONDUCT Part VII; see also Texans Against Censorship, Inc., 888 F. Supp. at See Texans Against Censorship, Inc., 888 F. Supp. at See id. at See id. at See State Bar of Texas, Professional Requirements---Part 7: Information About Legal Services Interpretive Comments (hereinafter Interpretive Comments ), available at 1 comments are directed toward specific questions that frequently arise during the ARC s review, and the comments are occasionally revised. 8 The Interpretive Comments are designed to establish objective means for staff members to review advertisements or writings and to determine whether they comply with Part 7 of the Texas Disciplinary Rules of Professional Conduct. 9 This paper provides an overview of the advertising rules and accompanying comments, and the cases, ethics opinions, 10 and interpretive comments that provide guidance on the rules application. The paper will specifically point out changes made during the 2005 revisions. The paper then describes the role of the ARC and the required filing procedures for attorney communications regarding the attorneys services. II. RULE 7.01: FIRM NAMES AND LETTERHEAD Rule 7.01 regulates firm names, letterheads, and other advertisements used to disseminate attorney and firm information. 11 A. Misleading Firm Names First, subsection (a) prohibits the use of trade names, firm names that are misleading as to the identity of the lawyer or lawyers practicing under the eys&template=/contentmanagement/contentdisplay.cfm& ContentID=8559 (last visited June 11, 2009). 8 See, e.g., Interpretive Comments Nos. 3, See Interpretive Comments, Introduction. 10 Pursuant to the Texas Government Code, the Professional Ethics Committee consists of nine members of the State Bar of Texas appointed by the Texas Supreme Court, and it issues advisory opinions that interpret the rules. TEX. GOV'T CODE ANN (Vernon 2007). These opinions are available on the website of the Texas Center for Legal Ethics and Professionalism, (last visited June 16, 2009), and on the University of Houston s Ethics Reporter website, ersindexb.html (last visited June 15, 2009). 11 TEX. DISCIPLINARY R. PROF L CONDUCT 7.01.

10 name, and firm names that contain names other than those of one or more lawyers in the firm. 12 A trade name is a designation that is adopted and used by a person either to designate a good he markets, a service he renders, or a business he conducts. 13 It has also been defined as an impersonal name or an assumed name not containing the name or names of those lawyers practicing under that name. 14 The use of a trade name may seem innocuous; however, in the context of optometrical practices, the Supreme Court has explained that trade names pose a significant risk of deception: The possibilities for deception are numerous. The trade name of an optometrical practice can remain unchanged despite changes in the staff of optometrists upon whose skill and care the public depends when it patronizes the practice. Thus, the public may be attracted by a trade name that reflects the reputation of an optometrist no longer associated with the practice. A trade name frees an optometrist from dependence on his personal reputation to attract clients, and even allows him to assume a new trade name if negligence or misconduct casts a shadow over the old one. 15 For example, names like Southwest Trial Associates, 16 Texas Legal Center, or The Employment Law Clinic violate the trade name prohibition. Additionally, a lawyer who advertised an Accidental Injury Hotline was found to have violated the trade name prohibition. 17 Furthermore, any language added to the name of a lawyer that claims or implies the qualities of the firm s 12 Id. at R. 7.01(a). 13 Commission for Lawyer Discipline v. C.R., 54 S.W.3d 506, 515 (Tex. App. Fort Worth 2001, pet. denied). legal services is prohibited. Thus, The Legal Clinic of John Doe, Jane Doe Trial Lawyers, Discount Legal Services of Jones and Doe, and Doe and Jones Lawmart would be prohibited under the rule. 18 The ARC has explained that [a]mong other things, the use of the term Law as a noun, or as a part of a noun in a firm name constitutes in the absence of a firm lawyer named Law an impermissible trade name. 19 For example, JonesLaw is an impermissible trade name. 20 The ARC recently clarified that Uniform Resource Locator s (URL s) cannot be used as trade names. 21 For example, could not be used as a firm name. However, the rules do not prohibit a firm from advertising a URL as the Internet address for the lawyer or law firm as long as the requirements of the Rules are met. 22 Additionally, the ARC has opined that in certain circumstances, acronyms may be used in a firm name: When designating a law firm name, the use of the initial letter of attorneys surnames in an acronym is permissible under Rule 7.01 only when: (1) Each letter in the acronym is derived from a surname: (i) that is not prohibited by Rule 7.01, and (ii) is otherwise permissible under the Texas Rules of Disciplinary Conduct, and (2) the resulting firm name: (i) does not constitute a trade name, (ii) is not misleading as to the lawyers practicing under that name, and (iii) is not otherwise prohibited under Rule 7.01 or the Texas Rules of Disciplinary Conduct. 14 Tex. Comm. On Prof l Ethics, Op. 398 (1978). 15 See Friedman v. Rogers, 440 U.S. 1, 13, 99 S.Ct. 887, 896, 59 L.Ed.2d 100 (1979); Texans Against Censorship, Inc., 888 F. Supp. at 1350; see also TEX. DISCIPLINARY R. PROF. CONDUCT 7.01 cmt. 1 ( Trade names are generally considered inherently misleading. ). 16 Tex. Comm. On Prof l Ethics, Op. 398 (1978). 17 C.R., 54 S.W.3d at Tex. Comm. On Prof l Ethics, Op. 529 (1999). 19 Interpretive Comments No Id. 21 Id. 22 Id. 2

11 For example, a firm named Jones, Smith & Miller, LLP would be allowed to adopt the name JSM, LLP or JS Miller, LLP only if Jones, Smith and Miller were permissible names under Rule By contrast, a firm named Williams, Iverson & Nelson, P.C. would not be allowed to adopt the name WIN, P.C. because use of such name would constitute a prohibited trade name under Rule 7.01 and would create unjust expectations about the results a lawyer can achieve in violation of Rule 7.02(a)(3). 23 Rule 7.01(a) does not prohibit including a corporate designator along with the firm name. Thus, P.C., L.L.P., P.L.L.C., or similar symbols may be included in a firm name. 24 Furthermore, the rule does not prohibit the use of the name of one or more deceased or retired members of the firm or a predecessor firm in a continuing line of succession. 25 Rule 7.01(e) provides that the prohibitions in (a) apply to advertisements in the public media or communications that seek professional employment. 26 Rule 7.01(f) reiterates that any firm name, letterhead, or professional designation must not be false or misleading in violation of Rule 7.02(a). 27 B. Firm Offices and Jurisdictional Limitations Subsection (b) permits a firm with offices in more than one jurisdiction to use the same name in each jurisdiction. 28 However, the identification of attorneys in an office of the firm must indicate any jurisdictional limitations applicable to those lawyers. 29 The comments explain that [a]lthough it is not necessary that the name of an interstate firm include Texas lawyers, a letterhead including the name of any lawyer 23 Interpretive Comments No TEX. DISCIPLINARY R. PROF L CONDUCT 7.01(a). 25 Id. 26 Id. at R. 7.01(e) & cmt Id. at R. 7.01(f) & cmt. 4. For example, an attorney was disciplined when his letterhead indicated he was board certified but had allowed that certification to expire. See State Bar of Texas v. Faubian, 821 S.W.2d 203, 206 (Tex. App. Houston [14th Dist.] 1991, writ denied). 28 TEX. DISCIPLINARY R. PROF L CONDUCT 7.01(b). 29 Id. not licensed in Texas must indicate the lawyer is not licensed in Texas. 30 C. Official Positions Subsection (c) prohibits firms from using the name of a lawyer occupying a judicial, legislative, or public executive or administrative position in the firm s name or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. 31 The comments explain that this provision is designed to prevent the exploitation of a lawyer s public position for the benefit of the lawyer s firm. 32 Additionally, if a lawyer also holds an official position, that lawyer should not indicate his or her official position on letterhead that identifies the lawyer as an attorney in private practice because such a use may be misleading to the public. 33 D. Lawyer Affiliations The rule prohibits a lawyer from holding himself or herself out as being a partner, shareholder, or associate with another lawyer unless they are actually partners, shareholders, or associates. 34 The comments explain that a firm name may be misleading if it creates the appearance that lawyers are partners or employees of a single law firm when in fact they are merely associated for the purpose of sharing expenses. 35 When lawyers are merely associated to share fees, they may not denominate themselves in any manner suggesting such an ongoing professional relationship as, for example, Smith and Jones or Smith and Jones Associates or Smith and Associates. 36 These titles may create the false impression that the lawyers have assumed a joint 30 Id. at R cmt Id. at R. 7.01(c). 32 Id. at R cmt Id. 34 Id. at R. 7.01(d). 35 Id. at R cmt. 1. This issue can arise in the context of billing clients for the work of a contract attorney who is not a partner, shareholder, or associate of the firm, when the firm bills the client more than it pays the contract attorney. For a detailed discussion of this problem, see Tex. Comm. On Prof l Ethics, Op. 577 (2007). 36 TEX. DISCIPLINARY R. PROF L CONDUCT 7.01 cmt. 1. 3

12 professional responsibility for clients, when that is not the case. 37 For example, in Curtis v. Commission for Lawyer Discipline, Chadderdon agreed to allow Curtis to work on two of her cases and to split expenses and fees earned on the cases. 38 Without Chadderdon s knowledge, Curtis contacted the clients and had them sign a contingent fee contract that referred to the two lawyers as the Law Office of Mary Curtis and Joanne Chadderdon. 39 The court held that the combination of the two names on the contingent fee agreement was some evidence that Curtis had held herself out as a partner with Chadderdon, when no such relationship existed. 40 The trial court ultimately suspended Curtis from the practice of law for one year based on that violation and others, and ordered her to pay $7,087 to the Commission for attorney fees and $ for court costs. 41 Ouch! III. RULE 7.02: COMMUNICATIONS CONCERNING A LAWYER S SERVICES A. False, Misleading, or Deceptive Communications Rule 7.02 prohibits false, misleading, or deceptive communications about the qualifications or the services of a lawyer or firm. 42 It is intended to broadly regulate [any] communications made for the purpose of obtaining professional employment. 43 The rule generally provides that a communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement as a whole not materially misleading. 44 For example, a lawyer violated rule 7.02 by repeatedly using the words we and our on the firm s website, when he was a solo practitioner. 45 Another attorney 37 Id S.W.3d 227, 230 (Tex. App. Houston [14th Dist.] 2000, no pet.). 39 Id. at Id. 41 Id. at TEX. DISCIPLINARY R. PROF L CONDUCT Id. at R cmt Id. at R. 7.02(a)(1). 45 In re Zuniga, 332 B.R. 760, 784 (Bankr. S.D. Tex. 2005). violated rule 7.02 by misrepresenting to her clients that an attorney with whom she shared the clients was too ill to handle the clients cases. 46 A violation under this section does not require proof that a client or potential client was actually misled by the attorney s communications. 47 Rule 7.01(f) prohibits the use of a false or misleading firm name, letterhead, or other professional designation. 48 We all graduated as doctors of jurisprudence, and it is typically not misleading to refer to a lawyer as Dr. Jane Doe, or Jane Doe, J.D. 49 Every communication, however, must be taken in context. 50 Thus, if a lawyer advertises that he specializes in medical malpractice law and also refers to himself as Dr. John Doe, that reference may be misleading to the public. 51 B. Past Successes or Results and Unjustified Expectations Rule 7.02 further provides specific examples of misleading communications. First, a communication is misleading if it contains a reference to past successes or results, unless the following criteria are met: (1) the communicating lawyer or member of the law firm served as lead counsel in the matter or was primarily responsible for the success or result; (2) the client actually received the amount involved; (3) the communication contains adequate information regarding the nature of the case or matter and the damages or injuries sustained by the client; and (4) if the gross amount received is stated, the communication states the attorney s fees and litigation expenses that were withheld as well Curtis, 20 S.W.3d at Rodgers v. Comm n for Lawyer Discipline, 151 S.W.3d 602, 612 (Tex. App. Fort Worth 2004, pet. denied). 48 TEX. DISCIPLINARY R. PROF L. CONDUCT 7.01(f). 49 Tex. Comm. On Prof l Ethics, Op. 550 (2004). 50 Interpretive Comments No Tex. Comm. On Prof l Ethics, Op. 550 (2004). 52 TEX. DISCIPLINARY R. PROF L CONDUCT 7.02(a)(2). 4

13 In Interpretive Comment 26, the ARC explained, in detail, the rules relating to the discussion of past successes: When making any reference to past successes or results obtained in advertisements in the public media, an attorney or law firm must comply with the general rule contained in Rule 7.02(a)(1), which prohibits communications that: (i) contain a material misrepresentation of fact or law, or (ii) omit a fact necessary to make a statement not materially misleading. In addition, Rule 7.02(a)(2) imposes an affirmative requirement that advertising lawyers and law firms include specific information when referring to past successes or results obtained. 1. A lawyer or lawyer firm publishing a claim of past successes or results obtained in an advertisement in the public media must include information sufficient to provide the basis for a reasonable person to understand the nature of the case, matter or representation, and the advertising lawyer or law firm s role in it. a. When reference is made to past successes or results obtained by a lawyer or firm in a matter where any or all of the descriptive elements of 7.02(a)(2)(i)-(iv) apply, the applicable elements must be incorporated into that reference. b. When reference is made to past successes or results obtained by a lawyer or firm in a matter where one or more of the descriptive elements of 7.02(a)(2)(i)-(iv) do not apply either because of the nature of the matter or representation or for any other reason the advertising lawyer or law firm must not only comply with the applicable elements, but must also comply with the requirement that sufficient information be included to avoid misleading a reasonable person. That lawyer bears the burden of providing in the advertisement the information required by the particular facts and circumstances of that representation and that communication If any reference is made to a sum of money, a particular type of relief, or some other amount or value, care must be taken to make clear the nature of the result, the role of the advertising lawyer or law firm, their relationship to that result, relief, or amount, and the net effect thereof. 3. Claims referencing cumulative results or successes must be accompanied by information sufficient to meet the advertising lawyer or law firm s burden under 7.02(a)(2) with regard to each individual case, matter, or representation. 4. A disclaimer regarding the uniqueness of client matters will not cure a failure to provide adequate information about a claim of past successes or results obtained. 5. If a lawyer or law firm describes his or her legal experience with reference to a specific matter without claiming responsibility for success or results obtained, that communication may not be subject to the requirements of Rule 7.02(a)(2). In that instance, however, the general rules regarding communications about qualifications and services still apply, and the burden lies with the advertising lawyer or law firm to demonstrate that a reasonable person would not conclude that a claim of responsibility for a particular result is being made. 53 It is important to distinguish here between claims merely of past experience and claims of past successes or results. For example, a lawyer could truthfully report or advertise that he or she had tried x number of cases to verdict or written y number of wills, so long as no express or implied claim is made as to the results or relative success of the representation. Thus, [e]ven an advertisement that fully and accurately reports a lawyer s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client s case. 54 While [t]hose unique circumstances would ordinarily preclude 53 Interpretive Comments No TEX. DISCIPLINARY R. PROF. CONDUCT 7.02 cmt. 4 (emphasis added).

14 advertisements in the public media and solicitation communications that discuss the results obtained on behalf of a client, such as the amount of a damage award [and] the lawyer s record in obtaining favorable settlements or verdicts, 55 it is also the case that a simple statement of a lawyer s own qualifications devoid of comparisons to other lawyers does not pose the same risk of being misleading Second, a communication is misleading if it is likely to create 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. 57 A lawyer s claim of success in a past matter may mislead a prospective client about what the lawyer can do for the prospective client. 58 The comments to the rule note that a disclaimer or qualifying language may preclude a finding that the communication is likely to create unjustified expectations or mislead prospective clients. 59 However, disclaimers and qualifying language will not always save a communication. 60 As noted in Interpretive Comment 26, disclaimers regarding the uniqueness of clients cases will not cure an improper reference to past successes. 61 This is a change from the prior rules, where a disclaimer stating, Results depend on the facts of each case, was sufficient to remove any unjustified expectations from a discussion of past results. You must provide the information required by rule 7.02(a)(2)! Attorneys should also be aware that before 2005, cumulative results could be advertised without any additional information. Now, claims referencing cumulative results or successes must meet the requirements under 7.02(a)(2) with regard to each individual case, matter, or representation. 62 The ARC has also opined that [w]hen an unjustified expectation is created through use of a 55 Id. 56 Id. at R cmt Id. at R. 7.02(a)(3). 58 Id. at R cmt Id. at R cmt Id. 61 Interpretive Comments No Id. picture or image of cash, checks or other monetary benefit, the inclusion of a disclaimer and/or information... will not cure the violation of Rule Think Geico s commercials with the stack of money staring at you. You can t do that if you are a lawyer! Furthermore, the days of small print disclaimers are over. After the 2005 revisions, any disclaimers or qualifying language, where appropriate, must be displayed prominently; otherwise, the information can still mislead prospective clients. 64 Any disclaimer or statement required by the rules must also be made in each language used in the advertisement or solicitation communication with respect to which such required statement or disclaimer relates; provided, however, the mere statement that a particular language is spoken or understood shall not alone result in the need for a statement or disclaimer in that language. 65 The comments to the rule explain that, obviously, it is in the best interest of the public that lawyers advertise their ability to speak a second language, and this can be done without elaboration. 66 However, if a lawyer chooses to communicate with potential clients in a second language, all statements or disclaimers... must also be made in that language. 67 Otherwise, a client could potentially be misled. 68 C. Comparison of Lawyers Services Third, rule 7.02(a)(4) prohibits a lawyer from comparing his services with other lawyers services, unless the comparison can be substantiated by reference to verifiable, objective data. 69 [A]n unsubstantiated comparison of the lawyer s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. 70 For example, the comments note that statements like, We are the 63 Interpretive Comment No TEX. DISCIPLINARY R. PROF L CONDUCT 7.02 cmt Id. at R. 7.02(d). 66 Id. at R cmt Id. 68 Id. 69 Id. at R. 7.02(a)(4). 70 Id. at R cmt. 5. 6

15 toughest lawyers in town, We will get money for you when other lawyers can t, or We are the best law firm in Texas if you want a large recovery, can mislead prospective clients. 71 This prohibition does not preclude a lawyer from making a simple statement about his own qualifications without reference to or comparison with other lawyers, as those sorts of statements are not inherently misleading. 72 And, a lawyer making a referral may express a good faith subjective opinion regarding the other lawyer without violating this rule. 73 D. Improper Influence Fourth, rule 7.02(a)(5) prohibits a lawyer from stating or implying that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official. 74 The purpose for this rule is obvious: Such conduct brings the profession into disrepute, even though the improper or irrelevant activities referred to are never carried out, and so are prohibited without regard to the lawyer s actual intent to engage in such activities. 75 E. Area of Practice Fifth, rule 7.02(a)(6) precludes lawyers from advertising their focus on one or more specific areas of practice unless the advertising or soliciting lawyer is competent to handle matters in those areas. 76 Although a lawyer is not required to be certified by the Texas Board of Legal Specialization in order to advertise that he or she practices in a particular area of law, 77 certification of the lawyer conclusively establishes that the lawyer is competent and that such an advertisement is not misleading. 78 Competency in an area of law may be established by other means as well. 79 The 71 Id. 72 Id. 73 Id. at R cmt Id. at R. 7.02(a)(5). 75 Id. at R cmt Id. at R. 7.02(a)(6). comments instruct lawyers to refer to rules 7.04 and 7.05, as applicable, as these rules must be construed together with rule 7.02(a)(6). 80 F. Client Testimonials Sixth, communications about the qualifications or services of any lawyer or firm may not use an actor to model or portray a client of the lawyer or firm. 81 As the comments to the rule explain, Sub-paragraph (a)(7) further protects prospective clients from false, misleading, or deceptive advertisements and solicitations by prohibiting the use of actors to portray clients of a lawyer or law firm. Other rules prohibit the use of actors to portray lawyers in the advertising or soliciting lawyer's firm. See Rules 7.04(g), 7.05(a). The truthfulness of such portrayals is extremely difficult to monitor, and almost inevitably they involve actors whose apparent physical and mental attributes differ in a number of material respects from those of the actual clients portrayed. 82 The ARC has also issued an interpretive comment regarding client testimonials: Any person appearing or speaking as though he or she were a client of the advertising lawyer or firm in a public media advertisement must be an actual client of the lawyer or law firm whose services are being advertised. A lawyer or law firm may not avoid complying with Part 7 through the use of a client spokesperson. Further, a client presenting the facts or circumstances surrounding a case or matter may only appear as a client of the lawyer or firm relative to a case or matter in which he or she was a party. The name, address and telephone number of the client appearing or speaking in a public media advertisement shall be identified to the committee. Interpretive Comment Number 25 details the requirements for factual substantiation required when an 77 An attorney may not represent that he or she is a specialist, except as permitted by rules 7.04 and See id. at R. 7.02(c) & cmt. 12. See discussion, infra, Part V. 78 TEX. DISCIPLINARY R. PROF L CONDUCT 7.02(b). 79 Id. at R cmt Id. at R cmt. 10; see discussion, infra, Part V. 81 TEX. DISCIPLINARY R. PROF L CONDUCT 7.02(a)(7). 82 Id. at R cmt

16 advertisement in the public media references results obtained or past successes.83 IV. RULE 7.03: PROHIBITED SOLICITATIONS AND PAYMENTS Rule 7.03 addresses solicitations by lawyers and payments by clients. 84 A. Direct Solicitation First, subsection (a) addresses in-person contact, telephone, or electronic communication. 85 That section provides: A lawyer shall not by in-person contact, or by regulated telephone or other electronic contact as defined in paragraph (f) seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. Notwithstanding the provisions of this paragraph, a lawyer for a qualified nonprofit organization may communicate with the organization's members for the purpose of educating the members to understand the law, to recognize legal problems, to make intelligent selection of counsel, or to use legal services. In those situations where inperson or telephone or other electronic contact is permitted by this paragraph, a lawyer shall not have such a contact with a prospective client if: (1) the communication involves coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment; (2) the communication contains information prohibited by Rule 7.02(a); or (3) the communication contains a false, fraudulent, misleading, deceptive, or unfair statement or claim Interpretive Comments No TEX. DISCIPLINARY R. PROF L CONDUCT Id. at R. 7.03(a). 86 Id. This rule is in place to protect clients from overreaching, and as explained by the comments, the principal concerns presented by such contacts are that they can overbear the prospective client s will, lead to hasty and ill advised decisions concerning choice of counsel, and be very difficult to police. 87 The prohibition on telephone and electronic solicitations prohibit any communication initiated by a lawyer or by any person acting on behalf of a lawyer or law firm that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or electronic means, but it does not apply to a website. 88 The comments clarify that the prohibition on electronic communications with prospective clients applies to chat rooms or solicitations, but not to pre-recorded telephone messages requiring a separate return call to speak or retain an attorney or websites that must be accessed by an interested person and that provide relevant and truthful information concerning a lawyer or law firm The absolute prohibition in rule 7.03(a) is limited to solicitations that concern matters arising out of a particular occurrence, event, or series of occurrences or events. 90 As long as the conditions of sub-paragraphs (a)(1) through (a)(3) are not violated by a given contact, a lawyer may engage in in-person, telephone, or other electronic solicitations when the solicitation is unrelated to a specific occurrence, event, or series of occurrence or events. 91 Furthermore, the absolute 87 Id. at R cmt. 1; see Texans Against Censorship, Inc., 888 F. Supp. at (citing Ohralik v. Ohio State Bar, 436 U.S. 447, (1978)). 88 TEX. DISCIPLINARY R. PROF L CONDUCT 7.03(f) & cmt. 2. For example, in O Quinn v. State Bar of Texas, the State Bar filed a disciplinary proceeding against O Quinn alleging that various non-lawyers had, at O Quinn s behest, recommended to prospective clients that they hire O Quinn where those prospective clients did not initially seek O Quinn s assistance. 763 S.W.2d 397, 398 (Tex. 1988). O Quinn then paid these runners for referring the clients. Id. at ; Musselwhite v. State Bar of Texas, 786 S.W.2d 437, 442 (Tex. App. Houston [14th Dist] 1990, writ denied) (finding that attorney was responsible for solicitation of clients by third party). 89 TEX. DISCIPLINARY R. PROF L CONDUCT 7.03 cmt Id. at R cmt Id. 8

17 prohibition does not apply where the prospective client has a family or past or present attorney-client relationship with the attorney, or where the prospective client requested the communication. 92 Additionally, rule 7.03(a) does not prohibit a lawyer for a qualified non-profit organization from inperson, telephone, or other electronic solicitation of prospective clients for purposes related to that organization. 93 Non-profit legal aid agencies, unions, or other qualified non-profits and their lawyers may solicit clients in person and by telephone, or by electronic means. 94 However, attorneys for non-profits must still refrain from undue influence, intimidation, overreaching, and other coercive acts. 95 B. Referrals Subsection (b) prohibits lawyers from paying, giving, or offering to pay or give anything of value to a person not licensed to practice law for soliciting or referring prospective clients, except that a lawyer may pay a reasonable fee for advertising and public relations services or the usual charge for a lawyer referral service that meets the requirements of the Occupations Code. 96 For example, in Ethics Opinion 524, the professional ethics committee determined that an attorney did not violate the rules prohibiting solicitation of clients where the attorney received referrals from a health care provider, the attorney did not pay or give any benefit to the health care provider, the health care provider s telephone solicitation involved only an offer of health care services, and information about the attorney s services were only provided upon request by the patient. 97 As provided in rule 7.03(b) and (e), attorneys must decline referrals from referral services that the attorney does not know or reasonably believe meet the requirements of chapter 952 of the Occupations 92 Id. 93 Id. at R cmt Id. 95 Id.; see Tex. Comm. On Prof l Ethics, Op. 519 (1997) for a discussion of the application of this provision to foreign governments who sponsor legal aid offices who provide services to foreign nationals. 96 TEX. DISCIPLINARY R. PROF L CONDUCT 7.03(b). 97 Tex. Comm. On Prof l Ethics, Op. 524 (1998). Code. 98 The Texas Occupations Code creates a licensing scheme for any service or program that refers potential clients to lawyers regardless of whether the program or service characterizes itself as a referral service and specifically prohibits the operation of a lawyer referral service in Texas unless the service holds a certificate issued under the Texas Lawyer Referral Act. 99 To obtain a certificate to operate, the referral service must be operated by a governmental entity or a tax-exempt non-profit entity and must meet a number of specific requirements. 100 Attorneys contemplating joining a referral service should ask the service to provide proof that it has obtained a certificate to operate. C. Client Advances Subsection (c) prohibits lawyers from offering a prospective client to pay, give, or advance anything of value, other than actual litigation expenses and other financial assistance. 101 For example, the ARC has indicated that [a]n advertisement that contains statements or representations that the lawyer or law firm will loan or advance specific sums of monies to prospective clients is misleading and creates unjustified expectations in violation of Rule 7.02(a)(1) and (2). 102 Statements like, We will advance or loan up to $2,000 to clients, would violate the rule. 103 The ARC has clarified that [a] lawyer may, however, include a statement in an advertisement or writing that 98 TEX. DISCIPLINARY R. PROF L CONDUCT 7.03(b), (e). Attorneys must pay particular attention to internet services they subscribe to. [I]f an internet site is using information about participating lawyers for the purpose of identifying or selecting a lawyer or group of lawyers whose names are then suggested, offered or recommended to a consumer for consideration, the site is not advertising or providing public relations services but is rather soliciting or referring prospective clients. Tex. Comm. On Prof l Ethics, Op. 561 (2005) (privately owned internet service operated by forprofit company was not a qualified referral service); Tex. Comm. On Prof l Ethics, Op. 573 (2006) (discussing limitations on internet services that would make them permissible). 99 Tex. Comm. On Prof l Ethics, Op. 562 (2005) (citing TEX. OCC. CODE , (Vernon 2004)). 100 Id. 101 TEX. DISCIPLINARY R. PROF L CONDUCT 7.03(c). 102 Interpretive Comments No Id. 9

18 actual litigation expenses, court costs, and other financial assistance may be advanced to a client. 104 D. Prohibitions Extend to Client Agreements and Receipt of Fees Subsection (d) clarifies that not only is an attorney prohibited from the improper solicitation of clients described in subsections (a), (b), and (c), but an attorney is also prohibited from entering into an agreement for, charge for, or collect a fee from employment obtained in violation of those subsections. 105 V. RULE 7.04: ADVERTISEMENTS IN THE PUBLIC MEDIA The prohibitions found in Rules 7.02 and 7.03 apply to any communication by an attorney made for the purpose of obtaining professional employment. 106 Rule 7.04 supplements these rules with additional requirements for lawyers advertising in the public media. 107 It regulates (1) when an attorney can refer to himself or herself as a specialist; (2) the content of public media advertisements; and (3) the attorney s obligations with respect to approval of the advertisements, record-keeping, and conformance with the claims made in the advertisements. 108 A. Coverage Rule 7.04 governs communications that are available to the general public, 109 including billboards; print advertisements in magazines, newspapers, and the yellow pages; television and radio advertisements, including infomercials and call-in television shows paid for by the attorney; and websites. 110 The rule does not apply to information sent to other lawyers or current or former clients, such as legal newspapers, legal directories, letters or materials mailed to other lawyers, information provided upon request by an 104 Id. 105 TEX. DISCIPLINARY R. PROF L CONDUCT 7.03(d). 106 Id. at R cmt. 1; id. at R. 7.03(a). 107 Id. at R Id. 109 See id. at R cmt. 5 (explaining that because legal newspapers and legal directories are not available to the general public, they need not comply with rule 7.04(b)). 110 Id. at R. 7.04(b)(3), (d). 10 individual, or letters to clients or former clients, except that, as always, these types of communications must be truthful. 111 B. Advertising Areas of Practice Rule 7.04(a) and (b) govern the circumstances under which an attorney may advertise that he or she specializes in a particular area of law. 112 Under rule 7.04(a), a lawyer may only refer to himself as a specialist only in specific circumstances. 113 For example, lawyers are permitted to list their names in a lawyer referral service according to the area of law in which they practice, as long as the referral service is certified under the occupations code. 114 Additionally, a lawyer may refer to himself as a specialist if he is board certified in a particular area of law. 115 Prior to the 2005 revisions, every advertisement had to include a statement that the attorney either was or was not board certified by the Texas Board of Legal Specialization for any area of law mentioned in the advertisement. 116 Now, there is no disclaimer required. Rather, rule 7.04(b)(2) now provides that a lawyer advertisement cannot include a statement that the lawyer has been certified or designated by an organization as possessing special competence or a statement that the lawyer is a member of an organization the name of which implies that its members possess special competence, unless (1) the lawyer has been awarded a certificate of special competence by the Texas Board of Legal Specialization, or (2) the organization referred to has been accredited by the Texas Board of Legal Specialization Id. at R. 7.04(a)(3) & cmt Id. at R. 7.04(a), (b). As discussed previously, an attorney must be truthful in advertising that he or she practices in a particular area of law and may not designate a specific area of practice in an advertisement unless he or she is competent to handle such types of matters. Id. at R. 7.02(a)(6). 113 Id. at R. 7.04(a). 114 Id. at R. 7.04(a)(2). 115 Id. at R. 7.04(b)(2). 116 See Texans Against Censorship, Inc., 888 F. Supp. at TEX. DISCIPLINARY R. PROF L CONDUCT 7.04(b)(2); Interpretive Comments No. 7. Advertising by a lawyer that

19 Lawyers may advertise to other lawyers and in legal directories and legal newspapers that they are available to practice in a particular area. 118 The comments note that these types of advertisements traditionally contain information about the name, location, telephone numbers, and general availability of a lawyer to work on particular legal matters. Other information may be included so long as it is not false or misleading. 119 Although the rule lists this as an exception to the general rule prohibiting lawyers from advertising that they are specialists, this is not to be interpreted as a license to use the word specialist or make any similar implication. Rather, this particular exception only authorizes a lawyer to advertise that he or she is available to practice in a particular area of he or she is a certified legal specialist may be misleading, especially if the certifying organization has not made a thorough inquiry into the lawyer's ability before issuing its certification. Texans Against Censorship, Inc., 888 F. Supp. at Requiring that lawyers refrain from claiming a specialty certification unless the organization is accredited by the Texas Board of Legal Specialization ensures that certificates of specialization are actually earned, and are not spurious. Id. 118 TEX. DISCIPLINARY R. PROF L CONDUCT 7.04(a)(3). Likewise, the rule does not apply to tombstone advertisements: Some advertisements, sometimes known as tombstone advertisements, mention only such matters as the name of the lawyer or law firm, a listing of lawyers associated with the firm, office addresses and telephone numbers, office and telephone service hours, dates of admission to bars, the acceptance of credit cards, and fees. The content of such advertisements is not the kind of information intended to be regulated by Rule 7.04(b). However, if the advertisement in the public media mentions any area of the law in which the lawyer practices, then, because of the likelihood of misleading material, the lawyer must comply with paragraph (b). Id. at R cmt Id. at R cmt. 5. law. 120 The rule of thumb publicly disseminated by the Advertising Review Committee staff has been that anyone who is not board certified must refrain from using the terms certified, specialization, specialty, or any derivative of these terms. Note that any mention of an area of practice or specialization must be displayed conspicuously and in language easily understood by ordinary consumers, and it must be made separate and apart from any other statements. 121 Intellectual property lawyers receive special treatment: lawyers admitted to practice before the United States Patent Office can refer to themselves as Patent Lawyers. Additionally, [a] lawyer engaged in the trademark practice may use the designation Trademark, Trademark Attorney, or Trademark Lawyer, or any combination of those terms. Finally, lawyers engaged in patent and trademark practice may hold themselves out as specializing in Intellectual Property Law, or any combination of the terms patent, trademark, copyright, or unfair competition. 122 C. Required Disclosures Rule 7.04 provides general guidelines as to what must be or what may not be included in an advertisement in the public media. 123 The following must be included in advertisements in the public media: 120 Id. at R. 7.04(a)(3) (emphasis added). 121 Id. at R. 7.04(c). Under rule 7.04(c), disclaimers required by the rules cannot be abbreviated in such a manner that the disclaimer becomes unintelligible. For example, under the prior rules, attorneys had to include the following disclaimer, if applicable, Not Certified by the Texas Board of Legal Specialization. One attorney attempted to get around this rule by including the following abbreviation instead, NOT BD CERTT TX BD LEG SPEC. See Abascal v. State Bar of Texas, No CV, 1996 WL , at *4 (Tex. App. San Antonio Dec. 19, 1996, no writ) (not designated for publication). 122 TEX. DISCIPLINARY R. PROF L CONDUCT 7.04(a)(1). 123 Id. at R Rule 7.04 s subsections are organized in a somewhat misleading fashion---attorneys should be aware that general rules applicable to all advertisements are found in the subsections that deal primarily with specific topics. See, e.g., id. at R. 7.04(b). 11