REPORT . . . LAWYERS PROFESSIONAL RESPONSIBILITY BOARD
By
R. Walter Bachman, Jr., Administrative Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (December
1978)
Judging from the
number of calls from attorneys to the Board’s office inquiring about lawyer
advertising rules, some confusion exists regarding the present rules and
enforcement policies of the Board in this area. I have avoided writing about this subject in Bench & Bar
prior to this date, since there is a risk that a short article will
oversimplify the complicated issues raised by the infinite possible forms of
advertising. Nonetheless, certain
general propositions upon which we frequently receive questions, and upon which
many misconceptions still remain afloat, are perhaps suitable for discussion
here.
The following
questions and answers set forth the most common inquiries and the answers that
indicate the present enforcement position on lawyer advertising issues in
Minnesota. Except as otherwise
indicated, the answers given represent personal opinions of this writer; they
do not necessarily constitute the position of the Lawyers Professional Responsibility
Board or any of its members.
1. What is the general rule in effect
regarding lawyer advertising in Minnesota?
ANSWER: An Order of the Minnesota Supreme Court,
dated April 14, 1978, amended the Code of Professional Responsibility to permit
“public communications” unless they are “false, fraudulent, misleading or
deceptive”. That phrase is defined as
follows: “ A false, fraudulent,
misleading or deceptive statement or claim includes a statement or claim which:
(1)
Contains a
misrepresentation of fact;
(2)
Is likely to mislead or
deceive because in context it makes only a partial disclosure of relevant
facts;
(3)
Is intended or is likely
to create false or unjustified expectations of favorable results;
(4)
Conveys the impression
that the lawyer is in a position to influence improperly any court, tribunal,
or other public body or official;
(5)
Is intended or likely to
result in a legal action or legal position being taken or asserted merely to
harass or maliciously injure another; or
(6)
Contains other
representations or implications that in reasonable probability will cause an
ordinary, prudent person to misunderstand or be deceived.”
This
rule will remain in effect for a one-year period, when a hearing will be held
to consider proposed additions or amendments to the rule.
2. Is
there any prohibition against television or radio advertising by attorneys in
Minnesota?
ANSWER: An advertisement placed by an attorney to be
broadcast by the electronic media is subject to the same general rule set forth
in the answer to Question No. 1 above.
Such advertising is not prohibited per se.
3. Does
the present rule permit attorneys to advertise in the “yellow pages” of the
telephone directory?
ANSWER: Yes.
The Lawyers Professional Responsibility Board considered this question
and determined that yellow pages advertising was a permissible “public
communication”, subject to the general rules set forth in the answer to
Question No. 1 above.
4. Is
attorney advertising that is “undignified” or “self-laudatory” prohibited by
the present rule?
ANSWER: No, not per se. Although most attorney advertising in Minnesota to date has
been dignified and proper by any standards, there is no rule presently in
effect which would serve as a basis for disciplining an attorney who would
place an “undignified” or “self-laudatory” advertisement.
5. May an
attorney advertise that he or she is a specialist in such fields of practice as
domestic relations, personal injury, probate, or the like?
ANSWER: No.
Only those fields in which there is authorized certification of
specialists (e.g., patents, trademarks, or admiralty) could be advertised as
specialist fields. See DR 2-105. Advertising oneself as a “specialist” in
personal injury work would tend to mislead the public to believe that the
advertiser has been certified as a specialist in the field. However, the prohibition against using the
term “specialist” does not restrain an attorney from listing one or more fields
in which the lawyer wishes to announce his or her availability
6. Is
advertising by mail permitted?
ANSWER: The answer to this question depends upon the
content of the mailed communication and related circumstances. The rules prohibiting direct solicitation of
legal work are contained in DR 2-103, and that rule is not altered by the
liberalized advertising rules. A letter
written to a particular individual to solicit legal work, such as a letter
written to an accident victim in a hospital recommending the employment of
oneself as an attorney, would constitute prohibited solicitation. In contrast, a direct mail communication to
a significant number of persons merely announcing the availability of an
attorney in certain areas could fall within the permitted definition of a
“public communication”. The distinction
between permitted advertising, on the one hand, and prohibited solicitation, on
the other hand, depends on all facts and circumstances. The mere fact that a communication is made
in writing does not necessarily assure that it will be construed as
advertising, rather than as solicitation.
7. Would
telephone solicitation or door-to-door solicitation be permitted?
ANSWER: No. The present enforcement policy of the
Board’s staff is that all such communications are prohibited per se as
solicitation.
8. Do the
amendments to the advertising rules contain any changes with respect to letterheads
or proper firm names?
ANSWER: No.
Rules previously in effect regarding content of attorneys’ letterhead
and firm names are still being enforced.
See DR 2-102(A)(4) and DR 2-102(B).
The easing of restrictions on advertising does not permit the attorneys’
letterhead to be used as a forum for advertising. Also, lawyers in private practice may not list non-lawyers on
their letterheads or use a partnership or firm name to apply to a mere
office-sharing arrangement.