Ethical Marketing

• Publication year: 2003
• Pages: 30
• Citation: Vol. 32 No. 10 Pg. 30

32 Colo.Law. 30 Colorado Lawyer 2003.

2003, October, Pg. 30. Ethical Marketing

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30

Vol. 32, No. 10, Pg. 30

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 30]

Ethics for Colorado Lawyers

Ethical Marketing
by Paula M. Ray, Stephen G. Masciocchi

Paula M. Ray Stephen G. Masciocchi

Paula M. Ray is a solo practitioner - (303) 292-0110. Stephen G. Masciocchi is a partner with Holland & Hart LLP - (303) 295-8000. Both authors are members of the CBA Ethics Committee

Ned Newbie is anxious to start his law practice but, just out of law school, he's unsure about his ethical responsibilities when he begins looking for clients. He's asked us to give him some advice on these specific questions

Can I name my firm anything I want to, such as "Cheap Lawyer"

Can I advertise myself as a specialist in representing toxic waste disposal firms?

Is it okay for my website to include a picture of me and my family, as well as testimonial endorsements from my friends?

Can I solicit business by answering people's legal questions in Internet "chat rooms"?

Can I pay my friend, who runs a financial planning business, $50 a month to refer clients who need legal advice or, instead of paying him monthly, can I give him a cut of my hourly fee?

We researched each of these issues for Ned and gave him the following advice.

Trade Names

Ned would like to promote his firm and use the name "Cheap Lawyer." This would not be acceptable in Colorado. The Colorado Rules of Professional Conduct ("Colorado Rules" or Colo.RPC") are clear. Colo. RPC 7.5(b) states:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such a name, or firm name containing names other than those of one or more of the lawyers in the firm. . . .

The Comment to Colo.RPC 7.5 notes:

The firm may be designated by the names of all or some of its members or by the names of deceased members where there has been a continuing succession in the firm's identity. It may be observed that any name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms is proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm.1

Based on this reasoning, it would follow that Ned should not be using a name other than his own to describe his firm.2

Also, even though Ned believes that the "Cheap Lawyer" handle has more sales appeal, it is not an advisable mode of advertising and goes against Colo.RPC 7.1: "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." Using "Cheap Lawyer" as an advertising tool could be deemed misleading. We advised Ned to stick with his own name.

Advertising

Ned believes he needs to advertise in order to attract clients. The U.S. Supreme Court has decided that it would be unconstitutional to deprive a lawyer of the right to advertise.3 Despite this ruling, Ned would do well to familiarize himself with Colo.RPC 7.1, 7.2, 7.3, and 7.4 before venturing into this quagmire. Generally, Colorado lawyers can "advertise" to the general public,4 as long as the advertisement does not make false or misleading statements and complies with the Colorado Rules.5 As discussed below, Ned also needs to steer clear of a form of "soliciting" clients that would be contrary to the Colorado Rules.6

Colo.RPC 7.1(a) sets out a test for what would be considered "false or misleading" advertising.7 Colo.RPC 7.1(b) warns lawyers not to pay the cost of advertising by another lawyer, unless such advertisement "discloses the name and address of the non-advertising lawyer, the relationship between the advertising lawyer and the non-advertising lawyer and whether the advertising lawyer may refer any case received through the advertisement to the non-advertising lawyer." Under Colo.RPC 7.1(c), unsolicited advertisements cannot be mailed to prospective clients by registered mail or other forms of restricted delivery.8 Also, under Colo.RPC 7.1(d), if the advertisement states or implies that a client does not have to pay a fee where there is no recovery in the case, it must state that the client may be responsible for costs.9

Lawyers have frequently been disciplined for violating these rules, particularly Colo.RPC 7.1. For example, in People v Pittam, the court addressed a situation where an attorney advertised in the Yellow Pages a "free initial consultation."10 However, once the client...