Legal Ethics: Unit 6 ADVERTISING AND SOLICITATION

Don't Pay That Florida Traffic Ticket!! CONTACT THE TICKET CLINIC OF FLORIDA TODAY

There is an ever-widening gap between the need for legal representation and the satisfaction of that need. What is the primary reason for this problem?

The inability of many people to pay for legal assistance

What is one effective method of bringing competent legal assistance to the public at a reasonable cost in the opinion of most lawyers?

The use of paralegals

There can be several ‘unpopular’ client types including rapists, tobacco companies, drug companies, and gun manufacturers What is the rule regarding these types of possible clients?

The duties of competency and integrity do not change for different types of cases or clients. Each and every client is entitled to the very best work product and consideration regardless of one’s personal likes or dislikes.

Does the paralegal have much input in what clients a law firm will take?

No but should have some say in what cases he or she will work on

What should you do if you think you can’t do your best work, duty of zealous representation, on a case because of your personal beliefs?

Talk to a supervising lawyer about being reassigned

The lawyer has a duty to not “avoid appointment” of representation (Model Rule 6.2), is he then obligated to accept a client?

A lawyer is not obligated to accept a client whose character or cause is repugnant.

Are lawyers often appointed to cases for which they will not get paid or which they are not competent?

Yes, due to the lack of lawyers for poor people who have been accused of crimes has necessitated the “forcible” appointment of lawyers, rather like indentured servitude.

Because the legal problems of laypeople are not always obvious to them, what does Rule 6.1 say regarding members of the legal profession?

They should assist laypeople in recognizing their legal problems and attended to within a certain time period.

How can the legal professional assist with getting laypeople aware of legal assistance available?

Legal professionals should encourage and participate in educational and public relations programs for members of the general public to provide them with an opportunity to meet with conscientious lawyers.

According to NFPA EC 1.7(b), a paralegal’s title shall be included on what?

If the paralegal’s name appears on business cards, letterhead, brochures, directories, and advertisements

For advertisement, you won’t find any ABA Model Code equivalents as the Model Code prohibited most forms of advertising except for the most basic name, address, phone number, and areas of practice general guidelines. So how do you know what the specifics would be?

What you will need to know is the law in your state

Advertising is permitted, what about solicitation?

Most of the time it is not permitted but all states have rules that prohibit in- person “soliciting”

According to Rule 7.3, a lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted is connected in what way?

Is a lawyer; or Has a family, close personal, or prior professional relationship with the lawyer

What is the difference between solicitation and advertising?

Solicitation is in person, by telephone, or by written communication that is directed to a specific individual. Advertising is directed to the public at large.

What if a paralegal is found soliciting clients at the request of the lawyer, who will be held responsible?

The lawyer

Several states have enacted statutes that prohibit any contact for a certain amount of time to what type of group of people?

People who have been charged with crimes or people who are related to victims of mass disasters

Why are these statute designed?

To protect people from making choices about legal representation while they are especially vulnerable

In-person solicitation is still improper, whether by a lawyer or paralegal. The line between solicitation and helping a member of the public understand a legal problem is not a clear one, but the motivation of the legal professional is a guide… Explain:

If the in-person communication is motivated by the desire to make money, it is probably improper solicitation. If it is motivated by a desire to assist a member of the public in recognizing a legal problem, it is more likely proper.

What about solicitation of legal work from people who are already clients of the firm or family members?

It is permitted

Can Paralegals Advertise?

Paralegals cannot deliver legal services directly to the public, so they cannot advertise directly to the public

When can paralegals advertise?

Paralegals may advertise their services to lawyers and law firms through letters, advertisements in legal directories, and legal periodical publications.

It is important to allow a layperson to lead the discussion and ask the paralegal for a referral to a lawyer or firm before such a referral is offered. It is not improper solicitation to give the business card of your law firm to laypeople if they ask for it. What examples can be given for improper solicitation?

If you put the card in the pocket of an accident victim or to offer the card to a stranger

What problem arises when lawyers must refrain from actively seeking out people who may have legal claims and to refrain from “convincing” laypeople that they do have a legal claim?

Laypeople may be irreparably injured if they do not seek legal assistance to pursue their claims or refuse to believe they have a claim.

Are Corporate Clients Treated Differently?

Yes, the in-person solicitation rules do not apply to corporate counsel in some states. The non-solicitation rules exist to protect members of the public.

Can We Pay Someone for Referring a Case or Client?

The ABA and most states agree that a lawyer should not be paid any more than the “responsibility assumed or work performed is worth.” In other words, if a lawyer didn’t work on the case, the lawyer shouldn’t get paid

If this is the law, why is it that we hear so much about lawyers and non-lawyers alike being paid referral fees? What is a referral fee and when is it permissible?

The ABA apparently disapproves of referral fees but doesn’t mind dividing fees.

What is a division of fee?

It is a single billing to a client covering the fee of two or more lawyers who are not in the same firm.

How does this differ from a referral fee?

A referral fee is a fee paid for doing nothing other than bringing the client to the lawyer.

In many instances, getting paid for bringing a case to a lawyer is called champerty—how is that defined?

The purchasing of a claim or a client

Define who are “Runners and Cappers”?

They are typically non-lawyers, people who get paid for bringing a case to a lawyer or law firm, or a patient to a doctor or hospital. Paying a runner or capper for bringing a case to a law firm is the illegal practice of champerty, or the purchasing of a claim.

Should paralegals accept referral fees from lawyers or agree to share a fee with a lawyer?

Paralegals should not accept referral fees from lawyers or agree to share a fee with a lawyer.

If a law firm Internet site can be viewed by people in all states across America, does it have to comply with the advertising rules of every state bar?

Apparently not. Compliance with the rules of the states where the firm has offices should be sufficient.

How can you put a client on a page listing of clients?

Most states require a lawyer to have written permission from the client to list the client as a reference.

If we link to other Web sites, are we responsible to their content?

No, but if there is false or misleading information on those other websites and we give the appearance that we are endorsing that false information, we probably violate state regulations on false advertising.

If your firm’s Web site has a method for the public to communicate with you, what problem might you have created?

A confidentiality problem for yourself (according to an ethics opinion from California). Visitors to the Web site have a reasonable belief that communication with the firm creates an attorney/client relationship that protects their secrets unless your disclaimer is clear and in plain language so it overcomes that presumption.

What input has the ABA made?

The ABA has stepped into the fray pretty much right on the heels of each new ethical issue. Model Rule 7.3 addresses “real-time electronic contact” such as Internet chat rooms in its prohibition against in-person solicitation as of 2002.