ETHICS DOCKET NO. 1988-33

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-33

Advertising - Solicitation: Mail Solicitation

  You state that you and two other attorneys, none of whom are associated with each other in the general practice of law, plan to send out an advertising flier, and you ask if there are any problems in so doing. A copy of the flier was furnished, which you describe as ""a mailing . . . to convey information concerning an employment law educational and consulting service.""

  The flier submitted states that an organization, trading under a trade name, offers seminars and training ""in employment and equal opportunity law."" Its speakers are described as ""all lawyers who have wide knowledge of the law, as well as years of practical experience"" and ""who have strong academic credentials ... [with] years of experience as litigators and counselors."" The ""presentations"" offered by the organization are described as ""go[ing] beyond identifying actual and potential problems in the work place. They assist executives and managers in developing constructive ways to handle personnel, EEO and labor relations problems.""

  Factual background information is given in the flier on each of the three attorneys/speakers, which includes employment and educational information and where each is licensed to practice law. In addition, for two of the three lawyers mentioned general statements regarding specialization/experience are provided. one is described as having ""specialized in the practice of employment law ... since 196611 and having ""litigated on behalf of and provided counsel to a wide variety of profit and non-profit clients."" The second is described as having a practice which ""emphasizes employment law, with representation of numerous employers,"" and as having ""particularly wide experience in race and age discrimination claims, as well as contract and defamation litigation.""

  The Committee is of the view that the Maryland Rules of Professional Conduct govern your activities, generally, respecting the organization described, and, specifically, the advertising of its services. This is so whether the activities of the organization are considered merely ""law related,"" or whether they amount to ""the practice of law"" or dealing ""as a lawyer.""¹     In Opinion Docket 86-23 the Committee reviewed the applicability of the then existing Code of Professional Responsibility to

lawyers engaging in dual professions and concluded that it is appropriate to require that ""a lawyer engaging in a law-related second occupation to be bound by the standards of the legal profession whether dealing as a lawyer or in a law-related occupation.""

  We have advised in earlier opinions on questions related to advertising by lawyers that those who propose to advertise should carefully review all of the new Rules applicable thereto, including Rules 7.1 through 7.5, as it is not our policy to review and approve specific proposed advertisements, but rather to set out the Rules and general guidelines. With this in mind, we point out that the mailing of an advertising flier is permitted by Rule 7.2(a), which allows the advertising of services, subject to the requirements of Rules 7.1 and 7.3(b), ""through public media. . . or through communications not involving in-person contact.""² The comment to the Rule states that it is permissible to send a ""communication by mail to a specific individual as well as general mailings, but does not permit contact by telephone or in-person delivery of written material.""

  Rule 7.1 requires that a lawyer not make a false or misleading communication about the lawyer or the lawyer's service and goes on to set forth when a communication is false or misleading.

  Rule 7.3(b) states that a lawyer shall not send a communication to a prospective client for the purpose of obtaining professional employment, if:

(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;

(2) the person has made known to the lawyer

(3) the communication involves coercion, duress or harassment.

Other requirements include Rule 7.2(b), providing that any advertisement, such as the flier in question, be kept for at least three (3) years along with a record of when and where it was used. And, Rule 7.2(e) requires that the lawyer be personally responsible for compliance with all the provisions of Rule 7.1, 7.2, 7.3, 7.4 and 7.5, and further requires that the lawyer be prepared to substantiate such compliance. In this regard, we wish to direct your attention especially to the following two issues raised by the flier.

Regarding the statements about specialization or concentration in the various lawyers' work or practice, Rule 7.4 provides that a lawyer may communicate the fact that he or she does or does not practice in a particular field of law, subject to the requirements of Rule 7.1. Opinion Docket 86-61, wherein statements concerning specialization were discussed in the light of the current Rules of Professional Responsibility. In that opinion it was stated:

""The Committee is of the opinion that as to indicating specialization, its Informal Opinion Dockets 85-5 and 80-10 still stand. Each lawyer must review his or her own statements concerning specialization, weighing education experience and personal qualifications, and be prepared to substantiate the credibility of claims of specialized expertise.""

  As for statements regarding the concentrations of individual lawyer's practice, in Opinion Docket 80-10 we stated:

""In the absence of the set standards which specialization rules could be expected to establish, lawyers are at risk in declaring themselves to be specialists in one or more fields of law or, to the extent it implies specialization, in declaring their practice limited to certain fields of law . . . . [However] there is no prohibition against the attorney, explaining in . . . [an] advertisement, that while he or she practices more frequently in one or more areas of law, no special expertise is claimed over and above that of the bar in general. . .

  As for the use of the term ""consultant"" or words similar thereto, in Opinion Docket 88-16, we stated:

""Webster defines the term 'consultant' to mean 'one who consults another; one who gives professional advice or services; expert.' Such a term is too open-ended and, in the Committee's view, is 'likely to create an unjustified expectation about results the lawyer can achieve.' Rule 7.1(b). This is especially true when the term 'consultant' is defined as 'expert,' as per Webster. . .. [I]f a lawyer hold(s) himself out as an expert' on certain legal matters, that status needs to be factually substantiated. . .""

  Regarding the association of lawyers in an organization such as the one referred to, the following Rules should be carefully considered. Rule 7.5(d) provides that ""Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact."" The implication in the advertisement is that the individual lawyers/speakers associated with the organization are practicing therein in a partnership, and this is permissible, provided that is true. And this is so even though the lawyers, or some of them, are at the same time associated in the practice of law with other firms. However, in Opinion Docket 88-45 we noted that such dual associations raise many potential ethical problems, and that such associations must be carefully evaluated to assure compliance with: Rules 1.7 (Conflict of Interests: General Rule); Rule 1.8 (Conflict of Interest: Prohibited Transactions); Rule 1.9 (Conflict of Interest: Former Client); Rule 1.10 Imputed Disqualification: General Rule); Rule 5.1 (Responsibilities of a Partner or Supervisory Lawyer); Rule 5.2 (Responsibilities of a Subordinate Lawyer); Rule 5.3 (Responsibilities Regarding Non-lawyer Assistants); and Rule 5.4 (Professional Independence of a Lawyer).

 ¹""The power to regulate and define what constitutes the practice of law is vested solely with the judicial branch of government. . . 11 Lukas v. Bar Association of Montgomery County, 35 Md. App. 442, 447 (1977). In Lukas, the court said it would not formulate a precise definition of ""the practice of law"", but it quoted, with approval, the opinion in Shortz v. Farrell, 327 Pa. 81, 84, 193 A.20, 21 (1937). Therein it was stated, in pertinent part, as follows:

""'[W]hen a lawyer has, through patient years of study, acquired an understanding of the law and obtained a license to engage in its practice, he applies his knowledge in three principal domains of Professional activity. . . . [One of these involves] instructing and advis(ing] clients in regard to the law, so that they may properly pursue their affairs and be informed as to their rights and obligations. . ..'""

  ²   ""In-person"" delivery of materials is governed by Rule 7.3(a). It is permissible only in the following circumstances:

""(l) if the prospective client is a close friend, relative, former client or one whom the lawyer reasonably believes to be a client;
(2)under the auspice of a public or charitable legal services organization; or
(3)under the auspices of a bona fide political, social, civic, fraternal, employee or trade organization whose purposes include but are not limited to providing or recommending legal services if the legal services are related to the principal purposes of the organization.""