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Attorney Advertising After the 1997 Overhaul of the Colorado
Rules of Professional Responsibility:  How Are You Affected?

© 1998 Charles F. Luce, Jr.
All Rights Reserved Worldwide

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         Once upon a time lawyers were forbidden to advertise. The only attorney on television was Perry Mason and the "A" listings in the Yellow Pages were considerably shorter. It was not, however, as you might imagine, a simpler time for attorney ethical codes. Instead, the Code of Professional Responsibility was a bulging repository of piecemeal "thou shalt nots" and "though mayests"; a contorted catalogue proscribing the forbidden and prescribing the permissible.

         Then came a great revolution: the Supreme Court decreed that attorneys' commercial speech was no less protected than that of public utilities. In a stunning series of decisions, the Court macheted through the twisted underbrush of legal ethics codes, striking down restrictions, inter alia, against targeted direct mail solicitation, Shapiro v. Kentucky Bar, 486 U.S. 466 (1988), and prohibitions against attorneys advertising if they have more than one professional license. Ibanez v. Florida Dept. of Business and Professional Regulation, 512 U.S. 136 (1994). First Amendment advocates and personal injury lawyers cheered. Perry Mason was now sandwiched in between commercials for attorneys with catchy monikers like, "Frank, the Tank." Local Yellow Pages publishers grew wealthier, and state supreme courts found themselves shortening their laundry list of "thou shalt nots" annually.

         In the midst of this revolution, the Kutak Commission began drafting what would become the ABA's Model Rules. With a clean slate, and a new judicial edict, the Model Rules emerged as a model of simplicity. The "Prime Directive," set forth in Rule 7.1 is short and simple: Don't lie, don't mislead, and don't create unjustified expectations. Colorado adopted the Model Rules in their then-current state in 1993.

         As these things go, a counter-revolution was inevitable. Repulsed by what they perceived to be distasteful and/or misleading advertising, a Colorado Bar Association Advertising Task Force began lobbying for sweeping revisions to the Colorado Rules of Professional Conduct. Their proposals were published in 25 The Colorado Lawyer 3 (August 1996), and a hearing on these proposals was held by the Colorado Supreme Court on 17 September 1996. Those advocating change punctuated their testimony with enlargements of Yellow Page listings of attorneys with nicknames like "Bulldog," and other manner of advertising the proponents of change thought foul. Those arguing that the simplicity of the Model Rules not be abandoned for the laundry list approach of the former Code, urged that the Court eschew becoming involved in attempts to regulating taste, that the existing rules were adequate to handle any actual horrors, and that Colorado consumers are not nearly as gullible as those who sought to protect them from commercial speech believed. Significantly, the court's own Grievance Committee noted that not one consumer complaint had ever been received regarding attorney advertising. The only complaints ever received were from other attorneys.

         In the end, neither side got what it wanted. The Colorado Supreme Court wisely declined to accede to the regulatory excesses advanced by the Advertising Task Force. These included a proposal to prohibit any advertising claim regarding a "lawyer's abilities or services" which "cannot be factually substantiated," the effect of which would have banished adjectives and adverbs from attorney advertising, and rendered virtually every law firm brochure in Colorado extinct.

         The Court did, however, substantially overhaul the Colorado Rules. A few of the changes were necessary to clarify the applicability of existing rules to electronic advertising. Many others, however, were merely discrete variations on the Prime Directive. These changes evidence a regression,  a disheartening departure from the Constitution-like elegance of the original Model Rules. It is difficult to see how the Prime Directive -- don't lie, don't mislead, don't create unjustified expectations -- is not adaptable for the year 2000. The micro management of attorney advertising represented by a majority of the new rules simply provides too little consumer benefit at too great a legislative cost. Nonetheless, it is important for advertising attorneys to take note of and pay heed to the jungle reemerging in Section 7 of the Colorado Rules of Professional Conduct. Below is a guide to the new advertising rules and pitfalls which might endanger an unwary attorney.

Colo. RPC 7.1 Communications Concerning A Lawyer's Services(1)

         Rule 7.1, the "Prime Directive" applicable to all attorney marketing communications, has been amended by adding five new paragraphs and an entirely new Official Comment. The new Comment recognizes that "[i]t is not possible to catalog all types and variations of communications that are false or misleading." Most of the of the additions to Rule 7.1 (and elsewhere in Section 7), however, ignore this fundamental truth, and are precisely an attempt to catalog situations the court believes "recur and deserve special attention."

         RPC 7.1(b)

         (b) No lawyer shall, directly or indirectly, pay all or a part of the cost of communications concerning a lawyer's services by a lawyer not in the same firm unless the communication 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.

         Subsection (b) is the lengthiest, and perhaps most interesting, addition to Rule 7.1. This subsection prohibits the undisclosed underwriting of attorney advertisements by attorneys not practicing in the same firm. It further mandates disclosure of the relationship between the attorney advertiser and the attorney underwriter, and whether the attorney advertiser may refer any case received through the advertisement to the underwriting attorney. Disclosure of non-attorney underwriters is not required, but disclosure of lawyer-underwriters is mandatory, regardless of whether a feeder operation may be reasonably presumed. Thus, an attorney-mother who underwrites her son's legal advertising when he first hangs out his shingle, for no motivation than parental love, must be identified in all of the son's advertising.

         Unquestionably, a feeder operation, such as Rule 7.1(b) is designed to expose under the bright lights of mandatory disclosure, is patently unethical, without any special rule. Colo. RPC 7.2(c) specifically prohibits all feeder operations. Such a bait-and-switch scheme would also be deceitful conduct under Rules 7.1(a)(1) and 8.4(c). The objection to the new rule, thus, is that it is superfluous. The author also doubts this situation recurs with such frequency as to warrant "special attention."

         RPC 7.1(c)

         (c) Unsolicited communications concerning a lawyer's services mailed to prospective clients shall be sent only by regular U.S. mail, not by registered mail or other forms of restricted delivery.

         New subsection (c) requires attorneys to use "only . . . regular U.S. mail" for disseminating "mailed" unsolicited communications. "Registered mail" and other forms of "restricted delivery" are forbidden. The stated purpose of this rule is:

It is misleading and an invasion of the recipient's privacy for a lawyer to send advertising information to a prospective client by registered mail or other forms of restricted delivery. Such modes falsely imply a degree of exigence or importance that is unjustified under the circumstances.

The "right to privacy" rationale for this new rule is both practically and constitutionally dubious. Restricted attorney advertising is no more than invasive of the recipient's privacy than restricted non-attorney advertising, which is protected commercial speech. In fact, restricted delivery is more of an annoyance than an invasion. Moreover, because of the expense of restricted delivery service, and the possibility that delivery will be delayed if the recipient is unavailable for signature, it is unlikely to be used.

         If the perceived evil sought to be remedied by Rule 7.1(c) is legal advertising masquerading as something more important than what it is, the rule could be more simple, direct and efficient were it to provide: "unsolicited communications concerning a lawyer's services shall not be communicated in any manner which is reasonably likely to suggest undue urgency, importance, or suggest that any legal consequence will result if the recipient disregards the communication." As drafted, Rule 7.1(c) covers only "mailed" communications, and addresses only one potentially deceptive practice: restricting delivery. The suggested alternative rule would encompass also simulated telegrams, simulated express delivery envelopes, simulated checks, and garishly colored envelopes, commonplace tactics in the direct mail marketing business. It would also address misleading advertising communicated by any media, whether "mailed" or not.(2) The point, however, is not that Rule 7.1(c) could have been much better drafted, but rather that it is unnecessary; misleading communications were adequately banned prior to enactment of this discrete rule, and the use of restricted delivery for legal advertising seems unlikely. In short, Rule 7.1(c) is a solution in search of a problem that does not deserve "special attention."

         RPC 7.1(d)

         (d) Any communication that states or implies the client does not have to pay a fee if there is no recovery shall also disclose that the client may be liable for costs. This provision does not apply to communications that only state that contingent or percentage fee arrangements are available, or that only state the initial consultation is free.

         Rule 7.1(d) is directed to advertisements of contingency fees. While the second sentence of this subsection provides a welcome safe harbor for contingency fee attorneys, the first sentence is simply a logical and obvious expansion of Rule 7.1(a)(1). Stating or implying that a client need not pay a fee if there is no recovery would "omit[] a fact necessary to make the statement considered as a whole not materially misleading," because, in Colorado, the client remains ultimately liable for litigation expenses. Colo. RPC 1.8(e).

         RPC 7.1(e)

         (e) A lawyer shall not knowingly permit, encourage or assist in any way employees, agents or other persons to make communications on behalf of the lawyer or the law firm in violation of this Rule or Rules 7.2 through 7.4.

         New Rule 7.1(e) is similarly redundant with Rules 8.4(a), which prohibits an attorney from knowingly inducing another to violate any rule of professional conduct, and Rule 5.3, which requires an attorney supervising non-lawyers to make reasonable efforts to insure the non-attorney's conduct complies with the Rules of Professional Conduct. The application of these general rules to the specific rules regarding attorney advertising seems patently obvious, and new Rule 7.1(e) superfluous.

         Official Comment

         The entirely new Comment to Rule 7.1 is more interesting and useful than the new rules themselves, and provides valuable guidance to advertising attorneys. One noteworthy change is the deletion in its entirety of the former Comment's suggestion that "advertisements containing client endorsements" are inherently likely to create "unjustified expectations." This should not be misread, however, as judicial endorsement of lawyer testimonials; attorneys engaging in testimonial advertising without appropriate disclaimers will still have a difficult time defending an "unjustified expectations" complaint. As the new Comment notes:

         Factually unsubstantiated characterizations of the results that a lawyer has in the past obtained . . . often implies that a lawyer will be able to obtain the same or similar results in the future. This type of statement, due to the inevitable factual or legal differences between different representations, is likely to mislead prospective clients.

(Emphasis added.) The qualification in the Comment is puzzling, since even factually substantiated descriptions of past results are likely to mislead unsophisticated clients if not appropriately qualified. Still, the change suggests that the court may recognize that attorney testimonial advertising is of some value to consumers, and need not be per se misleading.

Colo. RPC 7.2 Advertising

         The amendments to Rule 7.2 are mainly technical in nature. Subsection (a) adds "electronic media" as an example of a "public media" through which an attorney may advertise. Amendments to this subsection also define and differentiate "advertisements" from real-time solicitation, which is primarily regulated by Rule 7.3. The essence of the distinction is that "advertisements" are made through "public media," and directed to "prospective clients, consumers or the public at large."

         Rule 7.2(b) has been amended to increase the record retention requirements for advertisements from two to four years, while subsection (c) has been amended to conform to Rule 1.17, permitting the sale of a law practice. Finally, new subsection (e) of Rule 7.2 reminds attorneys that advertisements governed by Rule 7.2 must also comply with Rules 7.1 and 7.4.

Colo. RPC 7.3 Direct Contact with Prospective Clients

         RPC 7.3(a)-(b) & (d)

         Rule 7.3 governs real-time communications regarding legal services, specifically "in-person" and "live telephone contact," traditionally referred to as "solicitation." Rule 7.3 continues the general prohibition on solicitation where "a significant motive for the lawyer's doing so is the lawyer's pecuniary gain." Colo. RPC 7.3(a). The exception for attorneys having a "family or prior [legal] professional relationship" with a client remains.

         Rule 7.3(b) has been amended to include "electronic" communications. Subsection (d), formerly (c), has undergone minor revisions. The former rule required the words "Advertising Material" to be included on the outside of an envelope and at the beginning and end of any recording. The new rule changes the required notice to "This Is An Advertisement" and directs that it be "clear and conspicuous."

         While, viewed in isolation, these changes are an improvement, each departure from the ABA's Model Rules creates an incremental burden to an attorney soliciting in multiple states. Although Colorado was neither the first nor only state to depart from the Model Rules language, the cumulative affect of the regulatory fallout from Shapiro v. Kentucky Bar is that class action attorneys soliciting participation now face a state-by-state clearance process analogous to registering securities, but considerably more complex and less uniform. Because of state variations in the wording, placement, font, size and color of required notices, it is simply impossible to create a single conforming class action solicitation effective in all states. Accordingly, at least for the class action lawyer, attorneys may have the Constitutional right to use targeted direct mail solicitations, but at an astronomic regulatory cost that has very little demonstrable benefit to consumers.

         RPC 7.3(c)

         (c) A lawyer shall not solicit professional employment from a prospective client believed to be in need of legal services which arise out of the personal injury or death of any person by written, recorded, or electronic communication. This provision shall not apply if the lawyer has a family or prior professional relationship with the prospective client, or if the communication is issued more than 30 days after the occurrence of the event for which the legal representation is being solicited. Any such communication must comply with Rule 7.1, Rule 7.2 and the following:

         (1) No such communication may be made if the lawyer knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter.

         (2) If a lawyer other than the lawyer whose name or signature is contained in the communication will actually handle the case or matter, or if the case or matter will be referred to another lawyer or law firm, any such communication shall include a statement so advising the prospective client.

         (3) No such communication shall be made to resemble legal pleadings or other legal documents.

         (4) Any such written or recorded communication shall not reveal on the envelope or on the outside of a self-mailing brochure or pamphlet the nature of the prospective client's legal problem.

         (5) A copy of or recording of such communication and a sample of the envelopes in which the communications are enclosed shall be kept for a period of four years from the date of dissemination of the communication.

Colo. RPC 7.3(c). New subsection 7.3(c) is the most substantive and substantial addition to Rule 7.3. In essence, new subsection 7.3(c) establishes a 30-day moratorium on written targeted solicitations to persons believed to need legal services as the result "of the personal injury or death of any person," and further regulates communications permitted after the 30-day moratorium. This new rule, and  12-5-115.5, C.R.S., enacted one year earlier, are outgrowths of Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), which upheld a similar moratorium under Florida law.

         An exception for attorneys with "a family or prior professional relationship with the prospective client" remains. For all other attorneys, following the 30-day moratorium, targeted written solicitation relating to a personal injury or death is subject to unique regulation, in addition to general requirements of RPC 7.1 and 7.2.

         Subsection (c)(1) shields represented parties from targeted marketing efforts, much in the way RPC 4.2 shields clients from direct communications from opposing counsel. This situation may arise where a person sought to be solicited is already represented by someone with a family or prior professional relationship, where the prospective client actively sought and retained counsel during the moratorium, or the client has been effectively solicited by a non-Colorado attorney who is not subject to this rule or a similar restraint.(3)

         While protecting represented parties from persistent unwelcome suitors who would seek them to change their representation might advance a substantial governmental interest, it is not without potential cost to consumers. Insofar as the Supreme Court's generally unwavering support for attorney commercial free speech is rooted in the belief that advertising informs and enables consumers of legal services to make intelligent choices, a better rule might restrict all attorneys, including attorneys exempted from the moratorium under RPC 7.3(c), to an initial 90-day representation period, and permit direct mail solicitation from non-exempt attorney suitors after 30 days. Such a rule would both respect the grieving process, avoid clouded client judgments, and maximize consumer protection by creating a limited period of competition for the legal business between the 31st and 90th day after the triggering "personal injury or death."

         Subsection 7.3(c)(2) reflects the same bait-and-switch concern of new Rule 7.1(b), and, as noted above, is already encompassed within the purview of Rule 7.1(a)(1)'s against omission of material facts.

         RPC 7.3(c)(3), barring solicitations from resembling legal pleadings or legal documents, is, again, merely an expansion of Rule 7.1(a)(1)'s edict that communications not be misleading.

         Subsection (c)(4) reflects a laudable interest in respecting a potential client's privacy, but, again, not without a potential consumer cost. Coupled with Rule 7.3(d)'s requirement that attorney solicitations be clearly marked "This Is An Advertisement," a potential client who might be interested in receiving information specifically regarding his or her specific legal problem may discard an informative and useful solicitation without ever opening it.

         The Supreme Court's decision in Went For It represents the first Constitutional setback for attorney commercial free speech in over a decade. The policy behind RPC 7.3 (c),  12-5-115.5, C.R.S., and other similar enactments -- respecting a reasonable grieving period and avoiding hasty and clouded judgment by grieving clients in the selection of counsel -- cannot be gainsaid. Without a similar restriction on insurance adjusters and out-of-state attorneys,(4) however, the commendable purposes of attorney code provisions, such as Colo. RPC 7.3(c), are severely undermined, and, far from protecting consumers, merely create a 30-day "head start" for claims adjusters and out-of-state attorneys who are not bound by similar restrictions.

Colo. RPC 7.4 Communication of Fields of Practice

         Colo. RPC 7.4 adds two new subsections.(5)

         (f) In any advertisement in which a lawyer affirmatively claims to be certified in any area of the law, such advertisement shall contain the following disclosure: "Colorado does not certify attorneys as specialists in any field." This disclaimer is not required where the information concerning the lawyer's services is contained in a law list, law directory or a publication intended primarily for use of the legal profession.

         Subsection 7.4(f) is yet another specific variation on Rule 7.1(a)(1)'s prohibition against untruthful or misleading advertising. Because Colorado does not certify attorneys as specialists in any field, an affirmative claim to be so certified would be patently false. Similarly, a statement of certification, based on certification in another state, would almost certainly mislead by omission if the certifying body were not identified. Cf. Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990) (striking down state ban forbidding attorneys from truthfully advertising any certification as a specialist). Thus, this subsection appears to be directed more toward private certifying bodies which are unregulated, e.g., the National Institute for Trial Advocacy. To that extent, the addition is probably helpful for consumers, who could reasonably equate "certification" with government endorsement and regulation.

Conclusion

         So, how do the 1997 advertising amendments to the Colorado Rules of Professional Conduct affect the average Colorado attorney? Most likely, very little. The Prime Directive -- don't lie, don't mislead, and don't create unjustified expectations --  remains paramount and, for the most part, has simply been expanded upon. Attorneys engaged in cooperative advertising ventures and direct mail solicitation should pay careful attention to the new rules affecting their practices, and all attorneys should read the new Official Comment to Rule 7.1, for it provides great insight into the core concerns of the Colorado Supreme Court in this area. Although the author has taken the supreme court to task for, in his opinion, cluttering the Section 7 of Rules of Professional Conduct with redundant exposition of the cardinal precepts, he is the first to commend the court from resisting the excesses proposed by the CBA Advertising Task Force, which would have gone so far as to include bans on "dramatizations" and "added background sounds other than instrumental music."

         The elegant power of the ABA's original Model Rules is found in their simplicity; they focus attorneys' attention on the cardinal principles, and recognize the futility of cataloging every potential violation of the Prime Directive. The 1997 amendments to the Colorado advertising rules, while certainly not repugnant in themselves, represent a backward slide down the slippery slope toward the laundry-list approach of the Colorado Code of Professional Responsibility. How long that slope is, and how much further the Colorado Supreme Court will slide, remains to be seen.


         1. Minor amendments to the advertising rules ancillary to earlier enacted Rule 1.17 permitting the sale of a law practice are beyond the scope of this article.

         2. The phrase "mailed" is undefined, however Rule 7.1(c) appears to apply only to communications sent through the United States Postal Service, and does not appear to either prohibit, or regulate written communications delivered through other means, e.g., handing out pamphlets, Federal Express®, or electronic mail.

         3. In this last case, the representation agreement may be voidable pursuant to  12-5-115(4), C.R.S. However, the detained would-be suitor for legal business is forbidden from communicating this information to a represented party because of new Rule 7.3(c)(1).

         4. Commendably,  12-5-115.5 bars and renders voidable "any release or covenant not to sue" obtained within the 30-day period.

         5. Subsection 7.4(g), not discussed, is a conforming amendment to Rule 1.17, relating to the sale of a law practice.



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