1976, January, Pg. 29. Advertising for Lawyers?.

5 Colo.Law. 29

Colorado Lawyer

1976.

1976, January, Pg. 29.

Advertising for Lawyers?

29Advertising for Lawyers?The ABA Discussion Draft of Proposed Changes in Canons of Ethics and Disciplinary RulesThe following is a discussion draft of proposed amendments of the Code of Professional Responsibility prepared by the ABA Standing Committee on Ethics and Professional Responsibility. The ABA is requesting comment on the draft, and members of the Colorado Bar Association may direct their comments, in writing, to Charles Painter, Chairman, CBA Ethics Committee, 200 West Fourteenth Avenue, Denver, Colorado 80204. Comments should be submitted as soon as possible for consideration by the CBA Board of Governors at its January meeting.

DISCUSSION DRAFT

Tentative proposed deletions are bracketed; additions are italicized

Canon 2

A Lawyer Should Assist the Legal Profession in Fulfilling Its Duty to Make Legal Counsel Available

EC 2-1 * * *Recognition of Legal ProblemsEC 2-2 The legal profession should assist lay[men] persons to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers [acting under proper auspices] should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. [Such educational programs should be motivated by a desire to benefit the public rather than to obtain publicity or employment for particular lawyers. Examples of permissible activities include] Preparation of [institutional] advertisements and professional articles for lay publications and participation in seminars, lectures, and civic programs should be motivated by a desire to benefit the public in its awareness of legal needs and selection of the most appropriate counsel. [But a lawyer who participates in such activities should shun personal publicity.]

EC 2-3 Whether a lawyer acts properly in volunteering advice to a lay[man] person to seek legal services depends upon the circumstances. The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist lay[men] persons in recognizing legal problems. The advice is proper whenever it is [only if] motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. It [Hence, the advice] is improper if motivated by a desire to [obtain personal benefit, secure personal publicity,30or] cause [litigation] legal action to be taken [brought] merely to harass or injure another. A lawyer best serves the public if he does not volunteer advice in order to obtain private gain in regard to employment. [Obviously] A lawyer should not contact a non-client, personally or through a representative, [directly or indirectly,] for the purpose of being retained to represent him for compensation.EC 2-4 Since motivation is subjective and often difficult to judge, the motives of a lawyer who volunteers advice likely to produce legal controversy may well be suspect if he receives professional employment or other benefits as a result. A lawyer who volunteers advice that one should obtain the services of a lawyer [generally should not himself] and who then accepts employment, compensation, or other benefit in connection with that matter gives at least the appearance of impropriety. However, it is not improper for a lawyer to volunteer such advice and render resulting legal services to close friends, relatives, former clients (in regard to matters germane to former employment), and regular clients.

EC 2-5 A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems and informing them of his services should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems, since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for lay[men] persons should caution them not to attempt to solve individual problems upon the basis of the information contained therein.Selection of a Lawyer [Generally]EC 2-6 * * *EC 2-7 Changed conditions, however, have seriously restricted the effectiveness of the traditional selection process. Often the reputations of lawyers are not sufficiently known to enable lay[men] persons to make intelligent choices. The law has become increasingly complex and specialized. Few lawyers are willing and competent to deal with every kind of legal matter, and many lay[men] persons have difficulty in determining the competence of lawyers to render different types of legal services. The selection of legal counsel is particularly difficult for transients, persons moving into new areas, persons of limited education or means, and others who have little or no contact with lawyers. Lack of information about the availability of lawyers and the expense of initial consultation have been said to lead lay persons to avoid seeking legal advice.EC 2-8 Selection of a lawyer by a lay person should be informed. [man often is the result of the] Advice and recommendation of third parties---relatives, friends, acquaintances, business associates, or other lawyers---and proper publicity may be helpful. [. A layman is best served if the recommendation is disinterested and informed. In order that the recommendation be disinterested, a lawyer should not seek to influence another to recommend his employment. A lawyer should not compensate another person for recommending him, for influencing a prospective client to employ him, or to encourage future recommendations.] Advertisements and public communications, whether in law lists, announcement cards, newspapers or other forms, should be formulated to convey only information that is necessary to make an appropriate selection. Self-laudation should be avoided. Information that may be helpful in some situations would include: (I) office information, e.g., name, including name of law firm and names of professional associates; addresses; telephone numbers; and office hours; (2) biographical data: and (3)31description of the practice, e.g., one or more fields of law in which the lawyer or law firm concentrates; a statement that practice is limited to one or more fields of law; and a statement that the lawyer or law firm specializes in a particular field of law or law practice but only if authorized by the rules of the authority having jurisdiction under state law over the subject of specialization.

The proper motivation for commercial publicity by lawyers lies in the need to inform the public of the availability of competent, independent legal counsel. The public benefit derived from advertising depends upon the usefulness of the information provided to the community or to the segment of the community to which it is directed. Advertising marked by excesses of content, volume, scope of frequency, or which unduly emphasizes unrepresentative biographical data, does not provide that public benefit. For example, undue prominence should not be given to a prior governmental position outside the context of biographical information. Similarly, the use of media whose scope or nature clearly suggests that the use is intended for self-laudation of the lawyer without concomitant benefit to the public does not serve the public need. Improper advertising may hinder informed selection of competent, independent counsel, and advertising involving excessive cost may unnecessarily increase fees for legal services.

EC 2-8AAdvertisements and other public communications should make it apparent that the necessity and advisability of legal action depends on variant factors that must be evaluated individually. Fee information usually will be incomplete and misleading to a lay person. Therefore, public communications should not attempt to give fee information beyond a statement of a standard consultation fee, a statement of a range of fees for specific types of legal services, and the availability of credit arrangements. Because of the individuality of each legal problem, public statements regarding average, minimum or estimated fees normally will be deceiving as will commercial publicity conveying information as to results previously...