ATTORNEY ADVERTISING IN TEXAS AFTER THE 2005 RULES … · Appellate Advocate, State Bar of Texas...

ATTORNEY ADVERTISING IN TEXAS AFTER THE 2005 RULES CHANGES

WILLIAM J. CHRISS Law Office of William J. Chriss, P.C.

Of Counsel to Gravely & Pearson, L.L.P.

515 Congress Ave. Suite 2355

Austin, Texas 78701 [email protected]

BRANDY M. WINGATE

Senior Staff Attorney, Thirteenth Court of Appeals 100 E. Cano, 5th Floor Edinburg, Texas 78539

[email protected]

State Bar of Texas 23rd ANNUAL ADVANCED

CIVIL APPELLATE PRACTICE COURSE September 10-11, 2009

Austin

CHAPTER 24

WILLIAM J. CHRISS Of counsel

GRAVELY & PEARSON, L.L.P. 515 Congress Ave.

Suite 2355 Austin, Texas 78701

(512) 716-8338 [email protected]

Complex Civil Litigation and Appeals, including Insurance Coverage and Extra-contractual Claims, Ethics and Legal

Malpractice, Discrimination, Defamation, Privacy, and other Personal Injury

EDUCATION

J.D., Harvard Law School, Mark DeWolfe Howe Fellow (Civil liberties/legal history).

Ph.D. (pending-a.b.d.) in History, University of Texas at Austin (graduation expected 2010).

M.A. in History & Politics (Political Science), Texas A&M University at Kingsville.

M.A. in Applied Orthodox Christian Theology, St. John of Damascus Institute of Theology, University of Balamand. B.A. with high honors (Government), The University of Texas at Austin, Phi Beta Kappa, Magna Cum Laude, Junior

Fellow (Constitutional History), Rhodes Scholarship Nominee.

PROFESSIONAL ACTIVITIES, LICENSES, AND AWARDS (abridged): Board Certified: Civil Trial Law and Personal Injury Trial Law, Texas Board of Legal Specialization Martindale-Hubbell: "A.V." rated. Licensed: State Bar of Texas, U.S. District Court for the Southern District of Texas, U.S. Court of Appeals for the Fifth

Circuit, U.S. Supreme Court. Executive Director and Dean of Curriculum and Instruction, Texas Center for Legal Ethics and Professionalism (2007-

2009). Recipient of the 2005 Texas Bar Foundation Dan R. Price Award for excellence in legal writing, unwavering

commitment to clients, and service to the profession. President, Corpus Christi Bar Association (1993-94). Chair, District 11 Grievance Committee, State Bar of Texas (1997-99).

Texas Board of Legal Specialization Advanced Civil Trial Advisory Panel (1997-98). Committee on Pattern Jury Charges of the State Bar of Texas- Business, Consumer, Employment; Chair, Contract Law

subcommittee. (2005-2007). Governing Council of the Insurance Section of the State Bar of Texas. Governing Council of the Litigation Section of the State Bar of Texas (ex officio). Governing Council of the Appellate Law Section of the State Bar of Texas (ex officio). American Board of Trial Advocates. PUBLISHED WORKS (abridged): “Commentary on the Texas Disciplinary Rules of Professional Conduct Governing the Duties between Lawyer and

Client,” (with John F. Sutton, Jr.) Texas Lawyers’ Professional Ethics, 4th ed. (State Bar of Texas, 2007). “Personhood and the Right to Privacy in Texas” South Texas Law Review 48, no. 3 (Spring 2007) 575-611. “Coverage for Ensuing Water Damage under Texas Property Insurance Policies.” South Texas Law Review 46, no. 4

(Summer 2005) 1247-1281; “Coverage for Ensuing Water Damage under Texas Homeowners Policies.” Journal of Texas Insurance Law 5, no. 1

(Feb. 2004): 28-36.

Brandy M. Wingate Senior Staff Attorney

Thirteenth Court of Appeals 100 E. Cano, 5th Floor Edinburg, Texas 78539 Phone: (956) 318-2412

[email protected]

BIOGRAPHICAL INFORMATION

EDUCATION B.A. in Anthropology, Texas A & M University J.D., magna cum laude, Baylor University School of Law PROFESSIONAL ACTIVITIES Law Clerk to former Texas Supreme Court Chief Justice Thomas R. Phillips 2002-2003 Co-Editor-in-Chief of The Appellate Advocate 2009-2012; Associate Editor 2006-2009 State Bar of Texas Local Bar Services Committee 2008-2011 Texas Young Lawyer’s Association Minority Involvement Committee and Member Services Committee 2007-2008 Hidalgo County Bar Association; Treasurer, 2009-2010; Board of Directors 2007-2009; Chairperson, Women’s Bar

Section 2007-2008; Chairperson, Appellate Bar Section 2007-2008 Hidalgo County Young Lawyers’ Association: Secretary, 2008-2009; Board of Directors 2006-2008 PROFESSIONAL AWARDS Recognized as a Rising Star in appellate practice in the 2006, 2007, and 2008 Texas Super Lawyers “Rising Stars”

Edition of Texas Monthly Stars of the Bar Award, State Bar of Texas: co-authored of a series of eight articles titled, Anatomy of an Appeal:

TRAPS (Texas Rules of Appellate Procedure) for the Trial Lawyer, recognized as best substantive series in a bar association newsletter

Outstanding Board Member Award 2008, Hidalgo County Bar Association Board of Directors Outstanding Law Section Award 2008 for leadership in Women’s Bar Section, Hidalgo County Bar Association PUBLICATIONS Brandy M. Wingate & Tina S. Koch, Would You Swear to That? Problems With Verifying a Petition for Writ of

Mandamus, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 19 No. 4, p. 26 (Summer 2007)

Brandy M. Wingate & Robert B. Gilbreath, Review of Arbitration Awards After Hall Street Associates v. Mattel: The Supreme Court Says “No” to Contractual Expansion . . . and to “Manifest Disregard of the Law”?, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 20 No. 4, p. 277 (Summer 2008)

Brandy M. Wingate & Dan Worthington, 2009 Legislative Preview, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 21 No. 3, p. 161 (Spring 2009)

Monthly contributor to The Summons, the Hidalgo County Bar Association Newsletter, including a monthly series, Cases to Use and Peruse

Contributing author to Texas Lawyer’s Professional Ethics (4th ed. 2007). Assisted Chief Justice Thomas R. Phillips of the Texas Supreme Court in drafting The Constitutional Right to a

Remedy, published in Volume 78 of the New York University Law Review

Attorney Advertising in Texas after the 2005 Rules Changes Chapter 24

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TABLE OF CONTENTS

I. ADVERTISING UNDER THE NEW RULES ................................................................................................. 1 II. Rule 7.01: Firm Names and Letterhead ............................................................................................................. 1

A. Misleading Firm Names ............................................................................................................................. 1 B. Firm Offices and Jurisdictional Limitations ............................................................................................... 3 C. Official Positions ........................................................................................................................................ 3 D. Lawyer Affiliations .................................................................................................................................... 3

III. RULE 7.02: COMMUNICATIONS CONCERNING A LAWYER’S SERVICES .......................................... 4 A. False, Misleading, or Deceptive Communications ..................................................................................... 4 B. Past Successes or Results and Unjustified Expectations ............................................................................ 4 C. Comparison of Lawyers’ Services ............................................................................................................. 6 D. Improper Influence ..................................................................................................................................... 7 E. Area of Practice .......................................................................................................................................... 7 F. Client Testimonials .................................................................................................................................... 7

IV. RULE 7.03: PROHIBITED SOLICITATIONS AND PAYMENTS ............................................................... 8

A. Direct Solicitation ...................................................................................................................................... 8 B. Referrals ..................................................................................................................................................... 9 C. Client Advances ......................................................................................................................................... 9 D. Prohibitions Extend to Client Agreements and Receipt of Fees .............................................................. 10

V. RULE 7.04: ADVERTISEMENTS IN THE PUBLIC MEDIA ..................................................................... 10

A. Coverage .................................................................................................................................................. 10 B. Advertising Areas of Practice .................................................................................................................. 10 C. Required Disclosures ............................................................................................................................... 11

1. Lawyer’s name ............................................................................................................................... 12 2. Geographic location ....................................................................................................................... 12 3. Contingent Fees ............................................................................................................................. 13 4. Likelihood of Referral ................................................................................................................... 13 5. Advertising Paid for by Other Lawyers or Done as Part of an Advertising Cooperative .............. 13 6. Infomercials ................................................................................................................................... 13 7. Disclaimer Formatting ................................................................................................................... 13

D. Prohibited Content ................................................................................................................................... 13 1. Actor Portrayals of Lawyers .......................................................................................................... 13 2. Mottos, Slogans, or Jingles ............................................................................................................ 14

E. Practice Management and Record Keeping ............................................................................................. 14 VI. RULE 7.05: PROHIBITED WRITTEN, ELECTRONIC, OR DIGITAL SOLICITATIONS ....................... 14

A. False or Misleading Information .............................................................................................................. 14 B. Required Disclosures and Banned Content .............................................................................................. 14

1. Labeling Solicitations as an “ADVERTISEMENT” ..................................................................... 15 2. No Resemblance to Legal Pleadings or Legal Documents ............................................................ 15 3. Packaging or E-mail Subject Line Content .................................................................................... 15 4. Disclosure of How Information was Obtained .............................................................................. 15 5. Exceptions ...................................................................................................................................... 16

C. Practice Management and Record Keeping ............................................................................................. 16 VII. REVIEW BY THE ADVERTISING REVIEW COMMITTEE ..................................................................... 16

A. The Committee ......................................................................................................................................... 16 B. What Must Be Submitted? ....................................................................................................................... 17


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C. Review Process and Consequences for Non-filing .................................................................................. 19

VIII. CONCLUSION ................................................................................................................................................ 21


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ATTORNEY ADVERTISING IN TEXAS AFTER THE 2005 RULES CHANGE I. ADVERTISING UNDER THE NEW RULES The rules governing lawyer advertising in Texas are found in part VII of the Texas Disciplinary Rules of Professional Conduct.1 The advertising rules were amended in 2005.2 The rules restrict both what the lawyer can claim about his or her services and how the lawyer circulates these claims to the public and others.3 These rules are important because violations subject lawyers to the grievance process.4 The purpose of Part VII of the rules is to protect the public from false, misleading, and deceptive communications,5 although that purpose may not always be clear from the text of the rules. In fact, at times the rules are counterintuitive. That is why it is so important to know the rules and to seek help when necessary. Fortunately, the State Bar has created an Advertising Review Committee (the “ARC”) to assist lawyers and to ensure compliance with the rules.6 The ARC drafts interpretive comments, which are published in the Texas Bar Journal and can be found on the State Bar’s website.7 These interpretive

1 TEX. DISCIPLINARY R. PROF’L CONDUCT Part VII, reprinted in TEX. GOVT. CODE ANN., tit. 2, subtit. G app. (Vernon Supp. 2008).

2 The 2005 Rule Revisions updated the rules to apply to all communications, including audio, digital, and electronic communications. The Texas Supreme Court approved the revisions, effective June 1, 2005. Supreme Court of Texas, Misc. Docket 05-9013-A. For a detailed description of the process of adoption of the rules, see Texans Against Censorship, Inc. v. State Bar of Texas, 888 F. Supp. 1328, 1333-36 (E.D. Tex. 1995).

3 See generally TEX. DISCIPLINARY R. PROF’L CONDUCT Part VII; see also Texans Against Censorship, Inc., 888 F. Supp. at 1335.

4 See Texans Against Censorship, Inc., 888 F. Supp. at 1363.

5 See id. at 1337.

6 See id. at 1337.

7 See State Bar of Texas, Professional Requirements---Part 7: Information About Legal Services Interpretive Comments (hereinafter “Interpretive Comments”), available at

comments are directed toward specific questions that frequently arise during the ARC’s review, and the comments are occasionally revised.8 “The Interpretive Comments are designed to establish objective means for staff members to review advertisements or writings and to determine whether they comply with Part 7 of the Texas Disciplinary Rules of Professional Conduct.”9 This paper provides an overview of the advertising rules and accompanying comments, and the cases, ethics opinions,10 and interpretive comments that provide guidance on the rules’ application. The paper will specifically point out changes made during the 2005 revisions. The paper then describes the role of the ARC and the required filing procedures for attorney communications regarding the attorneys’ services. II. RULE 7.01: FIRM NAMES AND

LETTERHEAD Rule 7.01 regulates firm names, letterheads, and

other advertisements used to disseminate attorney and firm information.11 A. Misleading Firm Names

First, subsection (a) prohibits the use of trade names, firm names that are misleading as to the identity of the lawyer or lawyers practicing under the

http://www.texasbar.com/Template.cfm?Section=For_Attorneys&template=/ContentManagement/ContentDisplay.cfm&ContentID=8559 (last visited June 11, 2009).

8 See, e.g., Interpretive Comments Nos. 3, 17.

9 See Interpretive Comments, Introduction.

10 Pursuant to the Texas Government Code, the Professional Ethics Committee consists of nine members of the State Bar of Texas appointed by the Texas Supreme Court, and it issues advisory opinions that interpret the rules. TEX. GOV'T

CODE ANN. §§ 81.091-.095 (Vernon 2007). These opinions are available on the website of the Texas Center for Legal Ethics and Professionalism, http://www.tclep.org/OpinionsLanding.aspx (last visited June 16, 2009), and on the University of Houston’s Ethics Reporter website, http://www.law.uh.edu/libraries/ethics/Opinions/ethicsnumbersindexb.html (last visited June 15, 2009).

11 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.01.


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name, and firm names that contain names other than those of one or more lawyers in the firm.12 A “trade name” is “a designation that is adopted and used by a person either to designate a good he markets, a service he renders, or a business he conducts.”13 It has also been defined as an “impersonal name or an assumed name not containing the name or names of those lawyers practicing under that name.”14

The use of a trade name may seem innocuous; however, in the context of optometrical practices, the Supreme Court has explained that trade names pose a significant risk of deception:

The possibilities for deception are numerous. The trade name of an optometrical practice can remain unchanged despite changes in the staff of optometrists upon whose skill and care the public depends when it patronizes the practice. Thus, the public may be attracted by a trade name that reflects the reputation of an optometrist no longer associated with the practice. A trade name frees an optometrist from dependence on his personal reputation to attract clients, and even allows him to assume a new trade name if negligence or misconduct casts a shadow over the old one.15

For example, names like “Southwest Trial Associates,”16 “Texas Legal Center,” or “The Employment Law Clinic” violate the trade name prohibition. Additionally, a lawyer who advertised an “Accidental Injury Hotline” was found to have violated the trade name prohibition.17

Furthermore, any language added to the name of a lawyer that claims or implies the qualities of the firm’s

12 Id. at R. 7.01(a).

13 Commission for Lawyer Discipline v. C.R., 54 S.W.3d 506, 515 (Tex. App.—Fort Worth 2001, pet. denied).

14 Tex. Comm. On Prof’l Ethics, Op. 398 (1978).

15 See Friedman v. Rogers, 440 U.S. 1, 13, 99 S.Ct. 887, 896, 59 L.Ed.2d 100 (1979); Texans Against Censorship, Inc., 888 F. Supp. at 1350; see also TEX. DISCIPLINARY R. PROF. CONDUCT 7.01 cmt. 1 (“Trade names are generally considered inherently misleading.”).


17 C.R., 54 S.W.3d at 515.

legal services is prohibited. Thus, “The Legal Clinic of John Doe,” “Jane Doe Trial Lawyers,” “Discount Legal Services of Jones and Doe,” and “Doe and Jones Lawmart” would be prohibited under the rule.18

The ARC has explained that “[a]mong other things, the use of the term ‘Law’ as a noun, or as a part of a noun in a firm name constitutes—in the absence of a firm lawyer named ‘Law’—an impermissible trade name.”19 For example, “JonesLaw” is an impermissible trade name.20

The ARC recently clarified that Uniform Resource Locator’s (URL’s) cannot be used as trade names.21 For example, www.lawofficeofbrandywingate.com could not be used as a firm name. However, the rules do not prohibit a firm from advertising a URL as the Internet address for the lawyer or law firm as long as the requirements of the Rules are met.22

Additionally, the ARC has opined that in certain circumstances, acronyms may be used in a firm name:

When designating a law firm name, the use of the initial letter of attorneys’ surnames in an acronym is permissible under Rule 7.01 only when:

(1) Each letter in the acronym is derived from a

surname:

(i) that is not prohibited by Rule 7.01, and (ii) is otherwise permissible under the Texas

Rules of Disciplinary Conduct, and

(2) the resulting firm name:

(i) does not constitute a trade name, (ii) is not misleading as to the lawyers

practicing under that name, and (iii) is not otherwise prohibited under Rule

7.01 or the Texas Rules of Disciplinary Conduct.


19 Interpretive Comments No. 27.

20 Id.

21 Id.

22 Id.


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For example, a firm named “Jones, Smith & Miller, LLP” would be allowed to adopt the name “JSM, LLP” or “JS Miller, LLP” only if “Jones,” “Smith” and “Miller” were permissible names under Rule 7.01. By contrast, a firm named “Williams, Iverson & Nelson, P.C.” would not be allowed to adopt the name “WIN, P.C.” because use of such name would constitute a prohibited trade name under Rule 7.01 and would create unjust expectations about the results a lawyer can achieve in violation of Rule 7.02(a)(3).23

Rule 7.01(a) does not prohibit including a corporate designator along with the firm name. Thus, “P.C.,” “L.L.P.,” “P.L.L.C.,” or similar symbols may be included in a firm name.24 Furthermore, the rule does not prohibit the use of the name of one or more deceased or retired members of the firm or a predecessor firm in a continuing line of succession.25

Rule 7.01(e) provides that the prohibitions in (a) apply to advertisements in the public media or communications that seek professional employment.26 Rule 7.01(f) reiterates that any firm name, letterhead, or professional designation must not be false or misleading in violation of Rule 7.02(a).27 B. Firm Offices and Jurisdictional Limitations

Subsection (b) permits a firm with offices in more than one jurisdiction to use the same name in each jurisdiction.28 However, the identification of attorneys in an office of the firm must indicate any jurisdictional limitations applicable to those lawyers.29 The comments explain that “[a]lthough it is not necessary that the name of an interstate firm include Texas lawyers, a letterhead including the name of any lawyer 23 Interpretive Comments No. 28.

24 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.01(a).

25 Id.

26 Id. at R. 7.01(e) & cmt. 4.

27 Id. at R. 7.01(f) & cmt. 4. For example, an attorney was disciplined when his letterhead indicated he was board certified but had allowed that certification to expire. See State Bar of Texas v. Faubian, 821 S.W.2d 203, 206 (Tex. App.—Houston [14th Dist.] 1991, writ denied).

28 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.01(b).

29 Id.

not licensed in Texas must indicate the lawyer is not licensed in Texas.”30 C. Official Positions

Subsection (c) prohibits firms from using the name of a lawyer occupying a judicial, legislative, or public executive or administrative position in the firm’s name or in communications on its behalf, during any “substantial period in which the lawyer is not actively and regularly practicing with the firm.”31 The comments explain that this provision is “designed to prevent the exploitation of a lawyer’s public position for the benefit of the lawyer’s firm.”32 Additionally, if a lawyer also holds an official position, that lawyer should not indicate his or her official position on letterhead that identifies the lawyer as an attorney in private practice because such a use may be misleading to the public.33 D. Lawyer Affiliations

The rule prohibits a lawyer from holding himself or herself out as being a partner, shareholder, or associate with another lawyer unless they are actually partners, shareholders, or associates.34 The comments explain that a firm name may be misleading if it “creates the appearance that lawyers are partners or employees of a single law firm when in fact they are merely associated for the purpose of sharing expenses.”35 When lawyers are merely associated to share fees, they may not “denominate themselves in any manner suggesting such an ongoing professional relationship as, for example, ‘Smith and Jones’ or ‘Smith and Jones Associates’ or ‘Smith and Associates.’”36 These titles may create the false impression that the lawyers have assumed a joint 30 Id. at R. 7.01 cmt. 2.

31 Id. at R. 7.01(c).

32 Id. at R. 7.01 cmt. 3.

33 Id.

34 Id. at R. 7.01(d).

35 Id. at R. 7.01 cmt. 1. This issue can arise in the context of billing clients for the work of a contract attorney who is not a partner, shareholder, or associate of the firm, when the firm bills the client more than it pays the contract attorney. For a detailed discussion of this problem, see Tex. Comm. On Prof’l Ethics, Op. 577 (2007).

36 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.01 cmt. 1.


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professional responsibility for clients, when that is not the case.37

For example, in Curtis v. Commission for Lawyer Discipline, Chadderdon agreed to allow Curtis to work on two of her cases and to split expenses and fees earned on the cases.38 Without Chadderdon’s knowledge, Curtis contacted the clients and had them sign a contingent fee contract that referred to the two lawyers as “the Law Office of Mary Curtis and Joanne Chadderdon.”39 The court held that the combination of the two names on the contingent fee agreement was some evidence that Curtis had held herself out as a partner with Chadderdon, when no such relationship existed.40 The trial court ultimately suspended Curtis from the practice of law for one year based on that violation and others, and ordered her to pay $7,087 to the Commission for attorney fees and $651.95 for court costs.41 Ouch! III. RULE 7.02: COMMUNICATIONS

CONCERNING A LAWYER’S SERVICES A. False, Misleading, or Deceptive

Communications Rule 7.02 prohibits false, misleading, or deceptive

communications about the qualifications or the services of a lawyer or firm.42 It is intended to broadly “regulate [any] communications made for the purpose of obtaining professional employment.”43 The rule generally provides that a communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement as a whole not materially misleading.44 For example, a lawyer violated rule 7.02 by repeatedly using the words “we” and “our” on the firm’s website, when he was a solo practitioner.45 Another attorney

37 Id.

38 20 S.W.3d 227, 230 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

39 Id. at 233.

40 Id.

41 Id. at 230.


43 Id. at R. 7.02 cmt. 1.

44 Id. at R. 7.02(a)(1).

45 In re Zuniga, 332 B.R. 760, 784 (Bankr. S.D. Tex. 2005).

violated rule 7.02 by misrepresenting to her clients that an attorney with whom she shared the clients was too ill to handle the clients’ cases.46 A violation under this section does not require proof that a client or potential client was actually misled by the attorney’s communications.47

Rule 7.01(f) prohibits the use of a false or misleading firm name, letterhead, or other professional designation.48 We all graduated as doctors of jurisprudence, and it is typically not misleading to refer to a lawyer as Dr. Jane Doe, or Jane Doe, J.D.49 Every communication, however, must be taken in context.50 Thus, if a lawyer advertises that he specializes in medical malpractice law and also refers to himself as Dr. John Doe, that reference may be misleading to the public.51 B. Past Successes or Results and Unjustified

Expectations Rule 7.02 further provides specific examples of

misleading communications. First, a communication is misleading if it contains a reference to past successes or results, unless the following criteria are met:

(1) the communicating lawyer or member of the law firm served as lead counsel in the matter or was primarily responsible for the success or result;

(2) the client actually received the amount involved;

(3) the communication contains adequate information regarding the nature of the case or matter and the damages or injuries sustained by the client; and

(4) if the gross amount received is stated, the communication states the attorney’s fees and litigation expenses that were withheld as well.52

46 Curtis, 20 S.W.3d at 234 .

47 Rodgers v. Comm’n for Lawyer Discipline, 151 S.W.3d 602, 612 (Tex. App.—Fort Worth 2004, pet. denied).

48 TEX. DISCIPLINARY R. PROF’L. CONDUCT 7.01(f).




52 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.02(a)(2).


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In Interpretive Comment 26, the ARC explained, in detail, the rules relating to the discussion of past successes:

When making any reference to past successes or results obtained in advertisements in the public media, an attorney or law firm must comply with the general rule contained in Rule 7.02(a)(1), which prohibits communications that: (i) contain a material misrepresentation of fact or law, or (ii) omit a fact necessary to make a statement not materially misleading. In addition, Rule 7.02(a)(2) imposes an affirmative requirement that advertising lawyers and law firms include specific information when referring to past successes or results obtained. 1. A lawyer or lawyer firm publishing a claim

of past successes or results obtained in an advertisement in the public media must include information sufficient to provide the basis for a reasonable person to understand the nature of the case, matter or representation, and the advertising lawyer or law firm’s role in it.

a. When reference is made to past

successes or results obtained by a lawyer or firm in a matter where any or all of the descriptive elements of 7.02(a)(2)(i)-(iv) apply, the applicable elements must be incorporated into that reference.

b. When reference is made to past successes or results obtained by a lawyer or firm in a matter where one or more of the descriptive elements of 7.02(a)(2)(i)-(iv) do not apply – either because of the nature of the matter or representation or for any other reason – the advertising lawyer or law firm must not only comply with the applicable elements, but must also comply with the requirement that sufficient information be included to avoid misleading a reasonable person. That lawyer bears the burden of providing in the advertisement the information required by the particular facts and circumstances of that representation and that communication.

2. If any reference is made to a sum of money, a particular type of relief, or some other amount or value, care must be taken to make clear the nature of the result, the role of the advertising lawyer or law firm, their relationship to that result, relief, or amount, and the net effect thereof.

3. Claims referencing cumulative results or successes must be accompanied by information sufficient to meet the advertising lawyer or law firm’s burden under 7.02(a)(2) with regard to each individual case, matter, or representation.

4. A disclaimer regarding the uniqueness of client matters will not cure a failure to provide adequate information about a claim of past successes or results obtained.

5. If a lawyer or law firm describes his or her legal experience with reference to a specific matter without claiming responsibility for success or results obtained, that communication may not be subject to the requirements of Rule 7.02(a)(2). In that instance, however, the general rules regarding communications about qualifications and services still apply, and the burden lies with the advertising lawyer or law firm to demonstrate that a reasonable person would not conclude that a claim of responsibility for a particular result is being made.53

It is important to distinguish here between claims merely of past experience and claims of past successes or results. For example, a lawyer could truthfully report or advertise that he or she had tried x number of cases to verdict or written y number of wills, so long as no express or implied claim is made as to the results or relative success of the representation.

Thus, “[e]ven an advertisement that fully and accurately reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.”54 While “[t]hose unique circumstances would ordinarily preclude


54 TEX. DISCIPLINARY R. PROF. CONDUCT 7.02 cmt. 4 (emphasis added).


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advertisements in the public media and solicitation communications that discuss the results obtained on behalf of a client, such as the amount of a damage award [and] the lawyer’s record in obtaining favorable settlements or verdicts,”55 it is also the case that “a simple statement of a lawyer’s own qualifications devoid of comparisons to other lawyers does not pose the same risk of being misleading . . . .”56

Second, a communication is misleading if it is “likely to create an unjustified expectation about results the lawyer can achieve or states or implies that the lawyer can achieve results by means that violate these rules or other law.”57 A lawyer’s claim of success in a past matter may mislead a prospective client about what the lawyer can do for the prospective client.58

The comments to the rule note that a disclaimer or qualifying language may preclude a finding that the communication is likely to create unjustified expectations or mislead prospective clients.59 However, disclaimers and qualifying language will not always save a communication.60 As noted in Interpretive Comment 26, disclaimers regarding the uniqueness of clients’ cases will not cure an improper reference to past successes.61 This is a change from the prior rules, where a disclaimer stating, “Results depend on the facts of each case,” was sufficient to remove any unjustified expectations from a discussion of past results. You must provide the information required by rule 7.02(a)(2)!

Attorneys should also be aware that before 2005, cumulative results could be advertised without any additional information. Now, claims referencing cumulative results or successes must meet the requirements under 7.02(a)(2) with regard to each individual case, matter, or representation.62

The ARC has also opined that “[w]hen an unjustified expectation is created through use of a

55 Id.

56 Id. at R. 7.02 cmt. 7.

57 Id. at R. 7.02(a)(3).

58 Id. at R. 7.02 cmt. 4.

59 Id. at R. 7.02 cmt 6.

60 Id.


62 Id.

picture or image of cash, checks or other monetary benefit, the inclusion of a disclaimer and/or information . . . will not cure the violation of Rule 7.02.”63 Think Geico’s commercials with the stack of money staring at you. You can’t do that if you are a lawyer!

Furthermore, the days of small print disclaimers are over. After the 2005 revisions, any disclaimers or qualifying language, where appropriate, must be displayed prominently; otherwise, the information can still mislead prospective clients.64 Any disclaimer or statement required by the rules must also be made “in each language used in the advertisement or solicitation communication with respect to which such required statement or disclaimer relates; provided, however, the mere statement that a particular language is spoken or understood shall not alone result in the need for a statement or disclaimer in that language.”65 The comments to the rule explain that, obviously, it is in the best interest of the public that lawyers advertise their ability to speak a second language, and this can be done without elaboration.66 “However, if a lawyer chooses to communicate with potential clients in a second language, all statements or disclaimers . . . must also be made in that language.”67 Otherwise, a client could potentially be misled.68 C. Comparison of Lawyers’ Services

Third, rule 7.02(a)(4) prohibits a lawyer from comparing his services with other lawyers’ services, unless the comparison can be substantiated by reference to verifiable, objective data.69 “[A]n unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.”70 For example, the comments note that statements like, “We are the

63 Interpretive Comment No. 3.


65 Id. at R. 7.02(d).

66 Id. at R. 7.02 cmt. 14.

67 Id.

68 Id.

69 Id. at R. 7.02(a)(4).

70 Id. at R. 7.02 cmt. 5.


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toughest lawyers in town,” “We will get money for you when other lawyers can’t,” or “We are the best law firm in Texas if you want a large recovery,” can mislead prospective clients.71

This prohibition does not preclude a lawyer from making a simple statement about his own qualifications without reference to or comparison with other lawyers, as those sorts of statements are not inherently misleading.72 And, a lawyer making a referral may express a good faith subjective opinion regarding the other lawyer without violating this rule.73 D. Improper Influence

Fourth, rule 7.02(a)(5) prohibits a lawyer from stating or implying that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.74 The purpose for this rule is obvious: “Such conduct brings the profession into disrepute, even though the improper or irrelevant activities referred to are never carried out, and so are prohibited without regard to the lawyer’s actual intent to engage in such activities.”75 E. Area of Practice

Fifth, rule 7.02(a)(6) precludes lawyers from advertising their focus on one or more specific areas of practice unless the advertising or soliciting lawyer is competent to handle matters in those areas.76 Although a lawyer is not required to be certified by the Texas Board of Legal Specialization in order to advertise that he or she practices in a particular area of law,77 certification of the lawyer conclusively establishes that the lawyer is competent and that such an advertisement is not misleading.78 Competency in an area of law may be established by other means as well.79 The 71 Id.

72 Id.

73 Id. at R. 7.02 cmt. 7.

74 Id. at R. 7.02(a)(5).

75 Id. at R. 7.02 cmt. 9.

76 Id. at R. 7.02(a)(6).

77 An attorney may not represent that he or she is a specialist, except as permitted by rules 7.04 and 7.05. See id. at R. 7.02(c) & cmt. 12. See discussion, infra, Part V.


79 Id. at R. 7.02 cmt. 11.

comments instruct lawyers to refer to rules 7.04 and 7.05, as applicable, as these rules must be construed together with rule 7.02(a)(6).80 F. Client Testimonials

Sixth, communications about the qualifications or services of any lawyer or firm may not use an actor to model or portray a client of the lawyer or firm.81 As the comments to the rule explain,

Sub-paragraph (a)(7) further protects prospective clients from false, misleading, or deceptive advertisements and solicitations by prohibiting the use of actors to portray clients of a lawyer or law firm. Other rules prohibit the use of actors to portray lawyers in the advertising or soliciting lawyer's firm. See Rules 7.04(g), 7.05(a). The truthfulness of such portrayals is extremely difficult to monitor, and almost inevitably they involve actors whose apparent physical and mental attributes differ in a number of material respects from those of the actual clients portrayed. 82

The ARC has also issued an interpretive comment regarding client testimonials:

Any person appearing or speaking as though he or she were a client of the advertising lawyer or firm in a public media advertisement must be an actual client of the lawyer or law firm whose services are being advertised. A lawyer or law firm may not avoid complying with Part 7 through the use of a client spokesperson. Further, a client presenting the facts or circumstances surrounding a case or matter may only appear as a client of the lawyer or firm relative to a case or matter in which he or she was a party. The name, address and telephone number of the client appearing or speaking in a public media advertisement shall be identified to the committee. Interpretive Comment Number 25 details the requirements for factual substantiation required when an

80 Id. at R. 7.02 cmt. 10; see discussion, infra, Part V.


82 Id. at R. 7.02 cmt. 11.


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advertisement in the public media references results obtained or past successes.83

IV. RULE 7.03: PROHIBITED SOLICITATIONS

AND PAYMENTS Rule 7.03 addresses solicitations by lawyers and

payments by clients.84 A. Direct Solicitation

First, subsection (a) addresses in-person contact, telephone, or electronic communication.85 That section provides:

A lawyer shall not by in-person contact, or by regulated telephone or other electronic contact as defined in paragraph (f) seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. Notwithstanding the provisions of this paragraph, a lawyer for a qualified nonprofit organization may communicate with the organization's members for the purpose of educating the members to understand the law, to recognize legal problems, to make intelligent selection of counsel, or to use legal services. In those situations where in-person or telephone or other electronic contact is permitted by this paragraph, a lawyer shall not have such a contact with a prospective client if:

(1) the communication involves coercion,

duress, fraud, overreaching, intimidation, undue influence, or harassment;

(2) the communication contains information prohibited by Rule 7.02(a); or

(3) the communication contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.86



85 Id. at R. 7.03(a).

86 Id.

This rule is in place to protect clients from overreaching, and as explained by the comments, “the principal concerns presented by such contacts are that they can overbear the prospective client’s will, lead to hasty and ill advised decisions concerning choice of counsel, and be very difficult to police.”87

The prohibition on telephone and electronic solicitations prohibit any communication “initiated by a lawyer or by any person acting on behalf of a lawyer or law firm that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or electronic means,” but it does not apply to a website.88 The comments clarify that the prohibition on electronic communications with prospective clients applies to “chat rooms” or email solicitations, but not to “pre-recorded telephone messages requiring a separate return call to speak or retain an attorney or websites that must be accessed by an interested person and that provide relevant and truthful information concerning a lawyer or law firm . . . .”89

The absolute prohibition in rule 7.03(a) is limited to solicitations that concern matters arising out of a particular occurrence, event, or series of occurrences or events.90 “As long as the conditions of sub-paragraphs (a)(1) through (a)(3) are not violated by a given contact, a lawyer may engage in in-person, telephone, or other electronic solicitations when the solicitation is unrelated to a specific occurrence, event, or series of occurrence or events.”91 Furthermore, the absolute

87 Id. at R. 7.03 cmt. 1; see Texans Against Censorship, Inc., 888 F. Supp. at 1351-54 (citing Ohralik v. Ohio State Bar, 436 U.S. 447, 460-68 (1978)).

88 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.03(f) & cmt. 2. For example, in O’Quinn v. State Bar of Texas, the State Bar filed a disciplinary proceeding against O’Quinn alleging that various non-lawyers had, at O’Quinn’s behest, recommended to prospective clients that they hire O’Quinn where those prospective clients did not initially seek O’Quinn’s assistance. 763 S.W.2d 397, 398 (Tex. 1988). O’Quinn then paid these “runners” for referring the clients. Id. at 398-400; Musselwhite v. State Bar of Texas, 786 S.W.2d 437, 442 (Tex. App.—Houston [14th Dist] 1990, writ denied) (finding that attorney was responsible for solicitation of clients by third party).


90 Id. at R. 7.03 cmt. 2.

91 Id.


9

prohibition does not apply where the prospective client has a family or past or present attorney-client relationship with the attorney, or where the prospective client requested the communication.92

Additionally, rule 7.03(a) “does not prohibit a lawyer for a qualified non-profit organization from in-person, telephone, or other electronic solicitation of prospective clients for purposes related to that organization.”93 Non-profit legal aid agencies, unions, or other qualified non-profits and their lawyers may solicit clients in person and by telephone, or by electronic means.94 However, attorneys for non-profits must still refrain from undue influence, intimidation, overreaching, and other coercive acts.95 B. Referrals

Subsection (b) prohibits lawyers from paying, giving, or offering to pay or give anything of value to a person not licensed to practice law for soliciting or referring prospective clients, except that a lawyer may pay a reasonable fee for advertising and public relations services or the usual charge for a lawyer referral service that meets the requirements of the Occupations Code.96

For example, in Ethics Opinion 524, the professional ethics committee determined that an attorney did not violate the rules prohibiting solicitation of clients where the attorney received referrals from a health care provider, the attorney did not pay or give any benefit to the health care provider, the health care provider’s telephone solicitation involved only an offer of health care services, and information about the attorney’s services were only provided upon request by the patient.97

As provided in rule 7.03(b) and (e), attorneys must decline referrals from referral services that the attorney does not know or reasonably believe meet the requirements of chapter 952 of the Occupations

92 Id.

93 Id. at R. 7.03 cmt. 3.

94 Id.

95 Id.; see Tex. Comm. On Prof’l Ethics, Op. 519 (1997) for a discussion of the application of this provision to foreign governments who sponsor legal aid offices who provide services to foreign nationals.



Code.98 The Texas Occupations Code “creates a licensing scheme for any service or program that refers potential clients to lawyers regardless of whether the program or service characterizes itself as a ‘referral service’ and specifically prohibits the operation of a lawyer referral service in Texas unless the service holds a certificate issued under the Texas Lawyer Referral Act.”99 To obtain a certificate to operate, the referral service must be operated by a governmental entity or a tax-exempt non-profit entity and must meet a number of specific requirements.100 Attorneys contemplating joining a referral service should ask the service to provide proof that it has obtained a certificate to operate. C. Client Advances

Subsection (c) prohibits lawyers from offering a prospective client to pay, give, or advance anything of value, other than actual litigation expenses and other financial assistance.101 For example, the ARC has indicated that “[a]n advertisement that contains statements or representations that the lawyer or law firm will loan or advance specific sums of monies to prospective clients is misleading and creates unjustified expectations in violation of Rule 7.02(a)(1) and (2).”102 Statements like, “We will advance or loan up to $2,000 to clients,” would violate the rule.103 The ARC has clarified that “[a] lawyer may, however, include a statement in an advertisement or writing that

98 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.03(b), (e). Attorneys must pay particular attention to internet services they subscribe to. “[I]f an internet site is using information about participating lawyers for the purpose of identifying or selecting a lawyer or group of lawyers whose names are then suggested, offered or recommended to a consumer for consideration, the site is not advertising or providing public relations services but is rather soliciting or referring prospective clients.” Tex. Comm. On Prof’l Ethics, Op. 561 (2005) (privately owned internet service operated by for-profit company was not a qualified referral service); Tex. Comm. On Prof’l Ethics, Op. 573 (2006) (discussing limitations on internet services that would make them permissible). 99 Tex. Comm. On Prof’l Ethics, Op. 562 (2005) (citing TEX. OCC. CODE §§ 952.002, 952.101 (Vernon 2004)).

100 Id.

101 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.03(c).


103 Id.


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actual litigation expenses, court costs, and other financial assistance may be advanced to a client.”104 D. Prohibitions Extend to Client Agreements and

Receipt of Fees Subsection (d) clarifies that not only is an attorney

prohibited from the improper solicitation of clients described in subsections (a), (b), and (c), but an attorney is also prohibited from entering into an agreement for, charge for, or collect a fee from employment obtained in violation of those subsections.105 V. RULE 7.04: ADVERTISEMENTS IN THE

PUBLIC MEDIA The prohibitions found in Rules 7.02 and 7.03

apply to any communication by an attorney “made for the purpose of obtaining professional employment.”106 Rule 7.04 supplements these rules with additional requirements for lawyers advertising in the public media.107 It regulates (1) when an attorney can refer to himself or herself as a specialist; (2) the content of public media advertisements; and (3) the attorney’s obligations with respect to approval of the advertisements, record-keeping, and conformance with the claims made in the advertisements.108 A. Coverage

Rule 7.04 governs communications that are available to the general public,109 including billboards; print advertisements in magazines, newspapers, and the yellow pages; television and radio advertisements, including infomercials and call-in television shows paid for by the attorney; and websites.110 The rule does not apply to information sent to other lawyers or current or former clients, such as legal newspapers, legal directories, letters or materials mailed to other lawyers, information provided upon request by an 104 Id.

105 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.03(d).

106 Id. at R. 7.02 cmt. 1; id. at R. 7.03(a).

107 Id. at R. 7.04.

108 Id.

109 See id. at R. 7.04 cmt. 5 (explaining that because legal newspapers and legal directories are not “available to the general public,” they need not comply with rule 7.04(b)).

110 Id. at R. 7.04(b)(3), (d).

individual, or letters to clients or former clients, except that, as always, these types of communications must be truthful.111 B. Advertising Areas of Practice

Rule 7.04(a) and (b) govern the circumstances under which an attorney may advertise that he or she specializes in a particular area of law.112 Under rule 7.04(a), a lawyer may only refer to himself as a specialist only in specific circumstances.113 For example, lawyers are permitted to list their names in a lawyer referral service according to the area of law in which they practice, as long as the referral service is certified under the occupations code.114 Additionally, a lawyer may refer to himself as a specialist if he is board certified in a particular area of law.115

Prior to the 2005 revisions, every advertisement had to include a statement that the attorney either was or was not board certified by the Texas Board of Legal Specialization for any area of law mentioned in the advertisement.116 Now, there is no disclaimer required. Rather, rule 7.04(b)(2) now provides that a lawyer advertisement cannot include a statement that the lawyer has been certified or designated by an organization as possessing special competence or a statement “that the lawyer is a member of an organization the name of which implies that its members possess special competence,” unless (1) the lawyer has been awarded a certificate of special competence by the Texas Board of Legal Specialization, or (2) the organization referred to has been accredited by the Texas Board of Legal Specialization.117

111 Id. at R. 7.04(a)(3) & cmt. 5.

112 Id. at R. 7.04(a), (b). As discussed previously, an attorney must be truthful in advertising that he or she practices in a particular area of law and may not designate a specific area of practice in an advertisement unless he or she is competent to handle such types of matters. Id. at R. 7.02(a)(6).

113 Id. at R. 7.04(a).

114 Id. at R. 7.04(a)(2).

115 Id. at R. 7.04(b)(2).


117 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.04(b)(2); Interpretive Comments No. 7. “Advertising by a lawyer that


11

Lawyers may advertise to other lawyers and in legal directories and legal newspapers that they are available to practice in a particular area.118 The comments note that these types of advertisements “traditionally contain information about the name, location, telephone numbers, and general availability of a lawyer to work on particular legal matters. Other information may be included so long as it is not false or misleading.”119 Although the rule lists this as an exception to the general rule prohibiting lawyers from advertising that they are “specialists,” this is not to be interpreted as a license to use the word “specialist” or make any similar implication. Rather, this particular exception only authorizes a lawyer to advertise that he or she is “available to practice in a particular area of

he or she is a certified legal specialist may be misleading, especially if the certifying organization has not made a thorough inquiry into the lawyer's ability before issuing its certification.” Texans Against Censorship, Inc., 888 F. Supp. at 1355. Requiring that lawyers refrain from claiming a specialty certification unless the organization is accredited by the Texas Board of Legal Specialization ensures that “certificates of specialization are actually earned, and are not spurious.” Id.

118 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.04(a)(3). Likewise, the rule does not apply to “tombstone” advertisements:

Some advertisements, sometimes known as tombstone advertisements, mention only such matters as the name of the lawyer or law firm, a listing of lawyers associated with the firm, office addresses and telephone numbers, office and telephone service hours, dates of admission to bars, the acceptance of credit cards, and fees. The content of such advertisements is not the kind of information intended to be regulated by Rule 7.04(b). However, if the advertisement in the public media mentions any area of the law in which the lawyer practices, then, because of the likelihood of misleading material, the lawyer must comply with paragraph (b).

Id. at R. 7.04 cmt. 6.

119 Id. at R. 7.04 cmt. 5.

law.”120 The rule of thumb publicly disseminated by the Advertising Review Committee staff has been that anyone who is not board certified must refrain from using the terms “certified,” “specialization,” “specialty,” or any derivative of these terms. Note that any mention of an area of practice or specialization must be displayed conspicuously and in language easily understood by ordinary consumers, and it must be made separate and apart from any other statements.121

Intellectual property lawyers receive special treatment: lawyers admitted to practice before the United States Patent Office can refer to themselves as “Patent Lawyers.” Additionally, “[a] lawyer engaged in the trademark practice may use the designation “Trademark,” “Trademark Attorney,” or “Trademark Lawyer,” or any combination of those terms. Finally, lawyers engaged in patent and trademark practice may hold themselves out as specializing in “Intellectual Property Law,” or any combination of the terms patent, trademark, copyright, or unfair competition.122 C. Required Disclosures

Rule 7.04 provides general guidelines as to what must be or what may not be included in an advertisement in the public media.123 The following must be included in advertisements in the public media:

120 Id. at R. 7.04(a)(3) (emphasis added).

121 Id. at R. 7.04(c). Under rule 7.04(c), disclaimers required by the rules cannot be abbreviated in such a manner that the disclaimer becomes unintelligible. For example, under the prior rules, attorneys had to include the following disclaimer, if applicable, “Not Certified by the Texas Board of Legal Specialization.” One attorney attempted to get around this rule by including the following abbreviation instead, “NOT BD CERTT TX BD LEG SPEC.” See Abascal v. State Bar of Texas, No. 04-93-00367-CV, 1996 WL 729815, at *4 (Tex. App.—San Antonio Dec. 19, 1996, no writ) (not designated for publication).


123 Id. at R. 7.04. Rule 7.04’s subsections are organized in a somewhat misleading fashion---attorneys should be aware that general rules applicable to all advertisements are found in the subsections that deal primarily with specific topics. See, e.g., id. at R. 7.04(b).


12

1. Lawyer’s name An advertisement must include the name of at

least one lawyer who is responsible for the content of the advertisement.124 The purpose of this rule is to allow potential clients the opportunity to verify the attorney’s information and reputation.125 2. Geographic location

Advertisements in the public media must disclose the geographic location, by city or town, of the lawyer or firm’s principal office.126 A law firm cannot, however, advertise the existence of any office other than the principal office unless (1) the other office is staffed by a lawyer for at least three days a week, or (2) the advertisement states the days and times when a lawyer will be at the other office or that a meeting with the lawyer for the other office is by appointment only.127 The comments to the rule explain: “Experience has shown that, in the absence of such regulation, members of the public have been misled into employing a lawyer in a distant city who advertises that there is a nearby satellite office, only to learn later that the lawyer is rarely available to the client because the nearby office is seldom open or is staffed only by lay personnel.”128 124 Id. at R. 7.04(b)(1).

125 See Rodgers, 151 S.W.3d at 611-13.

126 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.04(j).

127 Id. The Federal District Court for the Eastern District of Texas declared the “branch office” provision unconstitutional as it existed in 1995. Texans Against Censorship, 888 F. Supp. at 1358-59. At that time, the provision only allowed attorneys to advertise a branch office if the office was staffed three days a week or the advertisement stated the days and times that a lawyer would be in the office. Id. The court suggested that the constitutional infirmity could be cured by allowing lawyers to advertise that meetings at the branch office were by appointment only, id., and thus, the rule was changed to include that option.

128 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.04 cmt. 16. This rule does not, however, prohibit legal services programs from advertising satellite offices in remote parts of the programs’ service areas, even if the satellite office is not regularly staffed by attorneys. If such were the rule, low-income individuals in those communities would be denied access to legal services. Id.

3. Contingent Fees Contingent fee contracts “present unusual

opportunities for deception by lawyers or for misunderstanding by the public.”129 If the advertisement claims that the lawyer is or may be willing to enter a contingent fee agreement, the advertisement “must state whether the client will be obligated to pay all or any portion of the court costs and, if a client may be liable for other expenses, this fact must be disclosed. If specific percentage fees or fee ranges of contingent work are disclosed in such advertisement, it must also disclose whether the percentage is computed before or after expenses are deducted.”130 The comments to the rule note that this provision is not only triggered by the mention of a “contingent fee” or “percentage fee” arrangement, but by any language that suggests a mere willingness or potential willingness to enter into a contingent fee arrangement.131 Thus, statements like “no fee if no recovery” or “fees in the event of recovery only” would require the concurrent disclosures.132 129 Id. at R. 7.04 cmt. 13. As the Supreme Court explained, the public is rarely aware of the technical details of most contingent fee arrangements and the terms used:

Appellant's advertisement informed the public that “if there is no recovery, no legal fees are owed by our clients.” The advertisement makes no mention of the distinction between “legal fees” and “costs,” and to a layman not aware of the meaning of these terms of art, the advertisement would suggest that employing appellant would be a no-lose proposition in that his representation in a losing case would come entirely free of charge. The assumption that substantial numbers of potential clients would be so misled is hardly a speculative one: it is a commonplace that members of the public are often unaware of the technical meanings of such terms as “fees” and “costs”-terms that, in ordinary usage, might well be virtually interchangeable.

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 652 (1985); see also Texans Against Censorship, Inc., 888 F. Supp. at 1357. 130 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.04(h).

131 Id. at R. 7.04 cmt. 13.

132 Id.


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Interpretive Comment Number 10 provides three examples of sufficient disclosures. First, “No fee if no recovery. Client is obligated for payment of court costs and expenses, regardless of recovery.” Second, “No attorney’s fees unless you recover. Court costs, litigation expenses, and medical bills are paid from your share of the recovery. If there is no recovery, you will not be responsible for any court costs or litigation expenses, except for unpaid medical bills.” Third, “No attorney’s fees, court costs, or expenses unless you recover.” But the comments warn that if the disclosure in the third example is used, a lawyer may be obligated to pay court costs, litigation expenses and any medical expenses that might be incurred by the plaintiff.133

4. Likelihood of Referral

If the advertising lawyer knows or should know at the time of the advertisement that he or she will likely refer a case received through that advertisement to another lawyer or firm, then the advertisement must state that fact conspicuously.134 This rule does not require disclosure of all possible situations where a referral could occur, such as when a conflict arises, but instead applies if referral is a common practice by the lawyer.135 If the lawyer wishes to advertise that he or she is associated with a lawyer referral service, that service must meet the requirements of the Occupation Code.136 5. Advertising Paid for by Other Lawyers or Done as

Part of an Advertising Cooperative If a lawyer, directly or indirectly, pays for all or

part of the cost of an advertisement for a lawyer not in the same firm, the advertisement must disclose “the name and address of the financing lawyer, the relationship between the advertising lawyer and the financing lawyer, and whether the advertising lawyer is likely to refer cases received through the advertisement to the financing lawyer.”137 Along the same lines, lawyers who advertise as part of an advertising cooperative or venture of two or more lawyers not in the same firm must include the following in the advertisement: (1) a statement that the advertisement


134 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.04(l).

135 Id. at R. 7.04 cmt. 17; Interpretive Comments No. 11.

136 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.04(n).

137 Id. at R. 7.04(k).

is paid for by the cooperating lawyers; (2) a statement identifying the cooperating lawyers; and (3) any special competency requirements as provided in 7.04(b).138 These types of ads must not state or imply that the lawyers participating in the cooperative or venture possess professional superiority or special competence in an area of law advertised, except as permitted under rule 7.04(b), and must comply with the rest of the rules of professional conduct.139 If a lawyer chooses to advertise as part of a cooperative or venture, the lawyer is responsible for ensuring compliance with rule 7.04 and with the reporting requirements in rule 7.07.140 6. Infomercials

An infomercial or other comparable presentation must state that it is an advertisement (1) verbally and in writing at the outset, after any commercial interruption, and at its conclusion; and (2) in writing during any portion of the presentation that explains how to contact the lawyer or law firm.141 7. Disclaimer Formatting

Rule 7.04 provides that any disclaimers required by this rule have to be presented in the same manner as the rest of the communication and with equal prominence.142 For example, if the claim or proposal is verbal, the disclaimer must be verbal.143 Additionally, any lawyer who advertises on the internet has to display the statements and disclosures required by rule 7.04 on the internet advertisement.144 D. Prohibited Content

The following may not appear in an advertisement in the public media: 1. Actor Portrayals of Lawyers

An actor may not be used to portray a lawyer or law firm whose services are being advertised or to narrate an advertisement as if he or she were such a

138 Id. at R. 7.04(o)(1)-(3).

139 Id. at R. 7.04(o)(4)-(5).

140 Id. at R. 7.04(p).

141 Id. at R. 7.04(b)(3).

142 Id. at R. 7.04(q).

143 Id. at R. 7.04 cmt. 20.

144 Id. at R. 7.04(r).


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lawyer. Rather, any such advertisement must depict the one or more of the lawyers whose services are being advertised.145 A disclaimer that the person is an actor will not cure a violation of this rule.146 This applies to websites, and the prohibition includes the use of clip art.

This rule does not prohibit the use of a spokesperson in an advertisement, as long as it is clear that the actor is not a lawyer prepared to perform legal services.147 When determining if the actor is portraying a lawyer, the ARC considers “the advertisement as a whole, including the surrounding setting of the video; i.e., if the setting is in a law library, courtroom, or office, as well as the statements, and whether they are in the third person versus first person, and any other matters which may imply to the consumer that the person in an advertisement is a lawyer whose services are being advertised will be considered.”148

2. Mottos, Slogans, or Jingles

Advertisements in the public media may not rely on mottos, slogans, or jingles that are false or misleading.149 E. Practice Management and Record Keeping

Rule 7.04 includes practice management and record-keeping requirements for lawyers who advertise in the public media. For example, rule 7.04(e) provides that all advertisements in the public media must be reviewed and approved in writing by the lawyer or by a lawyer in the law firm that ran the advertisement.150 Rule 7.04(f) requires the lawyer to keep (1) a copy or recording of each advertisement

145 Id. at R. 7.04(g).


147 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.04 cmt. 12;

Texans Against Censorship, Inc., 888 F. Supp. at 1356 (“In addition, the restriction in amended rule 7.04(g) is limited in scope; it only prohibits the casting of actors in roles ‘portraying’ the attorney being advertised, or narrating commercials as if he or she were the attorney being advertised. The rule does not preclude the use of actors in other scenarios.”).

148 Interpretive comments No. 9.

149 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.04(m).

150 Id. at R. 7.04(e).

disseminated in the public media, and (2) a record of when and where the advertisement was used, for a period of four years after the advertisement’s last dissemination.151 Furthermore, if the lawyer advertised a specific fee or range of fees for a particular service, then the lawyer must conform to that fee or fee range “for the period during which the advertisement is reasonably expected to be in circulation or otherwise expected to be effective in attracting clients, unless the advertisement specifies a shorter period; but in no instance is the lawyer bound to conform to the advertised fee or range of fees for a period of more than one year after the date of publication.”152 VI. RULE 7.05: PROHIBITED WRITTEN,

ELECTRONIC, OR DIGITAL SOLICITATIONS Rule 7.05 governs written, electronic, or digital

solicitations of prospective clients.153 A. False or Misleading Information

First, the rule prohibits communications that involve coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment, and communications that contain false, fraudulent, misleading, deceptive, or unfair statements or claims.154 It further incorporates rule 7.02 (false or misleading communications regarding the lawyer’s services) and rule 7.04(a) through (c) and (g) through (q).155 Thus, direct solicitations must comply with the rules in 7.04 regarding the lawyer’s practice areas, the use of actors, contingent fee disclosures, fee maintenance after advertising of fees, geographic location, financing of advertisements, referrals, mottos or slogans, lawyer referral services, and advertising cooperatives.156 B. Required Disclosures and Banned Content

Second, the rule governs the content and the packaging of solicitations, requiring each to contain certain language and disclaimers. Attorneys should pay particular attention to the type of media they are 151 Id. at R. 7.04(f).

152 Id. at R. 7.04(i).

153 Id. at R. 7.05 & cmt. 1.

154 Id. at R. 7.05(a)(1), (3).

155 Id. at R. 7.05(a)(2).

156 Id. at R. 7.04(a)-(c), (g)-(q).


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using, because the rules differ according to the media used: 1. Labeling Solicitations as an

“ADVERTISEMENT” The rules relating to the marking of a solicitation

as an “ADVERTISEMENT” are found in multiple subsections of the rule and vary according to the media used. Letters or mailings that are not transmitted electronically must conform to the requirements in rule 7.05(b)(1). These must be plainly marked “ADVERTISEMENT” on the first page and on the face of the envelope or packaging. The ARC will find the marking on a written letter sufficient if it is printed at least 1/4th of an inch in height vertically on the envelope and first page of the written communication solicitation letter, provided the word is separate and apart from other text.157

In contrast, if the communication is “in the form of a self-mailing brochure or pamphlet,” the word “ADVERTISEMENT” must be in a color that “contrasts sharply with the background color” and must be at least 3/8 inch vertically or three times the vertical height of the letters used in the body of the communication, whichever is larger.158 If the communication is transmitted by e-mail, it must be plainly marked “ADVERTISEMENT” in the subject portion of the e-mail and at the beginning of the e-mail’s text.159

Additionally, the rule requires that audio, audio-visual, digital media, recorded telephone message, or other electronic communications, if delivered to the recipient by non-electronic means, plainly and conspicuously state on the envelope or packaging that it is an “ADVERTISEMENT.”160 Any audio presentation or recorded telephone message must also plainly state that it is an advertisement prior to any


158 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.05(b)(1); Interpretive Comments. No. 12. If the brochure or pamphlet is enclosed along with a solicitation letter that is marked “ADVERTISEMENT,” then the brochure need not be marked. See Interpretive Comments No. 13.

159 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.05(b)(2). If the e-mail contains an attachment, the attachment need not be marked as “ADVERTISEMENT” as long as the e-mail subject line and the beginning of the e-mails’ text contains this notation. See Interpretive Comments No. 13.

160 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.05(c)(1).

other words being spoken and again at the conclusion.161 Any audio-visual or digital media presentation must plainly state it is an advertisement “(i) both verbally and in writing at the outset of the presentation and again at its conclusion; and (ii) in writing during any portion of the presentation that explains how to contact a lawyer or law firm.”162 2. No Resemblance to Legal Pleadings or Legal

Documents Solicitations cannot look like legal documents.163 For example, one attorney made his advertisements resemble subpoenas to appear at the lawyer’s office.164 3. Packaging or E-mail Subject Line Content

Rule 7.05 prohibits attorneys from indicating on the packaging of a solicitation or in the e-mail subject line “the nature of the legal problem of the prospective client or non-client.”165 4. Disclosure of How Information was Obtained

Solicitations must “disclose how the lawyer obtained the information prompting the communication to solicit professional employment if such contact was prompted by a specific occurrence involving the recipient of the communication, or a family member of such person(s).”166 If the solicitation is an audio, audio-visual, digital media, recorded telephone message, or other electronic communication, the disclosure can be made either in the communication itself or in an accompanying transmittal message.167 The ARC has explained that these disclosures should be specific. For example, “[i]f the lawyer obtained the prospective client’s name from police accident reports, the solicitation should state that the name was obtained from police accident reports rather than simply stating that it was obtained from ‘public records.’”168 161 Id. at R. 7.05(c)(4).

162 Id. at R. 7.05(c)(5).

163 Id. at R. 7.05(b)(3).

164 Texans Against Censorship, Inc., 888 F. Supp. at 1349.

165 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.05(b)(4), (c)(2).

166 Id. at R. 7.05(b)(5).

167 Id. at R. 7.05(c)(3).



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5. Exceptions There are significant exceptions to these

requirements, however, where the dangers of deception, harassment, vexation, and overreaching are minimal.169 The above rules do not apply to communications directed to a family member or an existing client.170 Additionally, the above rules do not apply to communications that are not motivated by or concerned with a particular past occurrence or event or a particular series and that are also not motivated by or concerned with a specific, existing legal problem of which the lawyer is aware.171 For example, “a written solicitation may be used in seeking general employment in commercial matters from a bank or other corporation, when there is neither concern with specific existing legal problems nor concern with a particular past event or series of events.”172

Furthermore, the above rules do not apply to communications that seek employment but are not significantly motivated by the possibility of obtaining pecuniary gain.173 For example, the rule does not apply to newsletters or other works that are published by the lawyer but are not circulated for the purpose of obtaining employment or for obtaining pecuniary gain.174 Additionally, “it is presumed” that communications made on behalf of non-profit legal aid agencies and the like are not motivated by a desire for pecuniary gain, but that presumption can be rebutted.175 Finally, the above rules do not apply to communications requested by the prospective client.176 C. Practice Management and Record Keeping

Third, as with advertisements in the public media, rule 7.05 includes practice management and record-keeping requirements for lawyers who transmit written, electronic, or digital solicitations. These solicitations must be “reviewed and either signed by or approved in

169 Id. at R. 7.05 cmt. 7.

170 Id. at R. 7.05(f)(1).

171 Id. at R. 7.05(f)(2).

172 Id. at R. 7.05 cmt. 7.

173 Id. at R. 7.05(f)(3).

174 Id. at R. 7.05 cmt. 4.

175 Id. at R. 7.05 cmt. 8.

176 Id. at R. 7.05(f)(4).

writing by the lawyer or a lawyer in the firm.”177 Additionally, lawyers are required to keep a copy of each solicitation; the approval of the solicitation; a record of the date of each communication; the name, address, telephone number, or electronic address to which each such communication was sent; and a record of the means by which the communication was sent.178 These records must be maintained for four years after the dissemination.179 VII. REVIEW BY THE ADVERTISING

REVIEW COMMITTEE A. The Committee

The rules require attorneys to submit certain advertisements to the ARC no later than the first dissemination of the advertisement.180 The ARC consists of twelve members appointed by the President of the State Bar.181 These members include nine attorneys and three public members.182 Additionally, State Bar staff members are assigned to the ARC.183 The ARC usually meets monthly to review submissions by attorneys.

The advantage of having a filing system is that “the state bar is not required to rely on consumers, who may not have enough information about the legal system in general, or a particular lawyer, to detect false or misleading advertising from lawyers.”184 The filing

177 Id. at R. 7.05(d).

178 Id. at R. 7.05(e).

179 Id. at R. 7.05(e) & cmt. 2.

180 Id. at R. 7.07(a), (b), (c), (e).

181 See State Bar of Texas Committees, available at http://www.texasbar.com/Content/NavigationMenu/Sections_and_Committees/Committees/Committees_List1/List_of_Committees.htm#adreview (last visited June 11, 2009).

182 See State Bar of Texas, 2008-2009 Volunteer and Staff Guide, available at http://www.texasbar.com/Template.cfm?Section=Committees&CONTENTID=22526&TEMPLATE=/ContentManagement/ContentDisplay.cfm (last visited June 11, 2009).

183 Id.



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system “enable[s] the state bar itself to winnow false or deceptive advertising from truthful advertising.”185 B. What Must Be Submitted? Specifically, the following must be submitted for review: (1) solicitation communications sent by any means, including electronic, written, audio, audio-visual, digital, or electronic; (2) advertisements in the public media; and (3) internet or other comparable network of computers information concerning the lawyer’s or law firm’s website.186 An attorney submitting solicitation communications must send a copy of the solicitation communication and a representative sample of the envelopes or other packaging accompanying the communication.187 The rules do not require the lawyer to submit a copy of each and every written solicitation that the lawyer sends.188 Rather, “if the same form letter is sent to several people, only a representative sample of each form letter, along with a representative sample of the envelopes used to mail the letters, need be filed.”189 An attorney submitting an advertisement must submit a copy of the advertisement “in the form in which it appears or will appear upon dissemination, such as a videotape, audiotape, DVD, CD, a print copy, or a photograph of outdoor advertisement.”190 Additionally, an attorney submitting an advertisement must include with his submission (1) a production script of the advertisement setting forth all the words used and describing the actions, events, scenes, and background sounds; (2) a listing of the names and addresses of all speakers on the advertisement, if the advertisement is in a form in which it is not fully revealed by a print or photographic copy; and (3) a statement of when and where the advertisement has been, is, or will be used.191

With respect to internet postings, the filing must include the intended initial access page of the

185 Id.

186 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.07(a)-(c).

187 Id. at R. 7.07(a)(1).

188 Id. at R. 7.07 cmt. 3.

189 Id.

190 Id. at R. 7.07(b)(1).

191 Id. at R. 7.07(b)(2)-(3).

website.192 “Website” means “a single or multiple page file, posted on a computer server, which describes a lawyer or law firm’s practice or qualifications, to which public access is provided through publication of a uniform resource locator (URL).”193 Interpretive comment 17 explains that

[o]f the pages of a website subject to these rules, many may be accessible without use of the site’s own navigational tools. Of those pages, for the purpose of this Interpretative Comment, the “intended initial access page” is the page of the file on which navigational tools are displayed or, in the case that navigational tools are displayed on several pages, the page which provides the most comprehensive index capability on the site. The intended initial access page of a lawyer or law firm’s website shall include: 1) the name of the lawyer or law firm responsible for the content of the site; 2) if areas of law are advertised or claims of special competence are made on the intended initial access page or elsewhere on the site, a conspicuously displayed disclaimer regarding such claims in the language prescribed at Rule 7.04(b); and 3) the geographic location (city or town) in which the lawyer or law firm’s principal office is located. Publication of a link to a separate page bearing the required disclaimer or information required by Rule 7.04(b) does not satisfy this requirement.194

The comment then clarifies that the initial access page must be submitted for review—in other words, attorneys need not submit every page of their website.195 However, the interpretive comment also explains that attorneys must submit web-based display or banner ads for review:

An image or images displayed through the vehicle of another’s website is an advertisement in the public media if the ad describes a lawyer or law firm’s practice or qualifications, whether viewed independently

192 Id. at R. 7.07(c)(1).

193 Id. at R. 7.07(c).


195 Id.


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or in conjunction with the page or pages reached by a viewer through links offered by the ad (“target page’). The content of a web-based display or banner ad will be viewed in conjunction with the target page. . . . . The filing requirements of Rule 7.07 apply to the intended initial access page of a website as well as to web-based display or banner ads and their associated target page(s) and substantive revisions thereto. A web-based display or banner ad and the target page for the web-based display or banner ad will be considered a single communication for the purposes of Rule 7.07. Unless exempt from filing under Rule 7.07, web-based display or banner ads together with their associated target pages and the intended initial access page of a website must be filed.196

The attorney must submit the required documentation of the solicitation, advertisement, or website information along with an application form, which is available in pdf format on the State Bar’s website, and the $75 filing fee.197

196 Id.

197 See Application Form, Lawyer Advertising and Written Solicitation, available at http://www.texasbar.com/Template.cfm?Section=For_Attorneys&Template=/ContentManagement/ContentDisplay.cfm&ContentID=12339 (last visited June 11, 2009). The website also contains a link to general instructions for submissions, see Submission Directions, available at http://www.texasbar.com/Template.cfm?Section=For_Attorneys&Template=/ContentManagement/ContentDisplay.cfm&ContentID=15403 (last visited June 11, 2009), and for completing the application. See Completing the Application Form, available at http://www.texasbar.com/Template.cfm?Section=For_Attorneys&Template=/ContentManagement/ContentDisplay.cfm&ContentID=15404 (last visited June 11, 2009). Finally, the website includes a link to “Frequently Asked Questions,” which provides useful information about the process. See Frequently Asked Questions, available at http://www.texasbar.com/Template.cfm?Section=For_Attorneys&template=/ContentManagement/ContentDisplay.cfm&ContentID=3418 (last visited June 11, 2009).

There are eight exceptions to the filing requirement.198 These types of communications apply to communications that are not likely to be false or deceptive.199 First, general advertisements that merely provide only the name of the lawyers or firm, address, phone numbers, a listing of the areas of law practiced, dates of admission to bar associations, licenses held by the attorneys, foreign language ability, fees for initial consultation or fee schedules, other publicly available information concerning legal issues that were not prepared by or for the firm or any of its lawyers, and links to other websites, are not required to be submitted.200 Second, advertisements that merely identify one or more lawyers or a firm as a contributor to a specified charity or as a sponsor of a specified charitable, community, or public interest program, activity, or event, and that contain no information about the lawyers or the firm other than the names of the lawyers or firm or both, location of their law offices, and the fact of the sponsorship or contribution, need not be submitted.201 Third, listings or entries in

198 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.07(e).

199 See Texans Against Censorship, Inc., 888 F. Supp. at 1363 n.31; TEX. DISCIPLINARY R. PROF. CONDUCT 7.07 cmt. 7.

200 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.07(e)(1).

201Id. at R. 7.07(e)(2); see, e.g., Tex. Ethics Op. 548 (2003). For example, in Commission for Lawyer Discipline v. C.R., C.R. paid for to advertise an “Accidental Injury Hotline” in several telephone books. 54 S.W.3d at 509. When the phone number was dialed, the caller was provided with several options. Id. at 509-10. The caller could choose to receive free advice regarding the actions to take after an injury. Id. However, the caller was prompted several times to press “0” to be connected with an attorney, upon which the caller would be connected with C.R.’s law office. Id. The court held that the hotline was not a public service announcement and that C.R. violated rule 7.07 by failing to file the advertisement with the Advertising Review Committee. Id. The court relied on the following:

C.R. had paid a significant fee to publish the advertisement, . . . a substantial portion of the lawyer's business is derived from the advertisement, and . . . persons responding to the advertisement would only be directed to the advertising lawyer for legal advice. The Commission's evidence shows that C.R. spent $30,000 to


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regularly published law lists need not be submitted.202 Fourth, announcements stating new or changed associations, new offices, or similar changes relating to a lawyer or firm, or a tombstone professional card, likewise need not be submitted.203 Fifth, newsletters in written, digital, or electronic form that are sent, delivered, or transmitted only to (1) existing or former clients; (2) other lawyers or professionals; or (3) members of certain nonprofit organizations, are exempt from the filing requirements.204 Sixth, the rule exempts “a solicitation communication that is not motivated by or concerned with a particular past occurrence or event or a particular series of past occurrences or events, and also is not motivated by or concerned with the prospective client’s specific existing legal problem of which the lawyer is aware.”205 Seventh, the rule exempts “a solicitation communication if the lawyer’s use of the communication to secure professional employment was not significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain.”206 Finally, the rule does not require filing of solicitation communications that are requested by the prospective client.207 The exemptions from the filing rules allow lawyers to communicate with former clients and related professionals, which are two key referral groups. But a warning is in order: even though the

develop and implement the Accidental Injury Hotline; that 50% of his business opportunities derived from the Hotline; that he created the Hotline "to increase [his] business opportunities"; that if a person who calls the Hotline wants to be connected to an attorney, the only attorney he can reach through the Hotline is C.R.; and that C.R. devotes 100% of his practice to personal injury law, the subject of the Accidental Injury Hotline.

Id. at 514.

202 TEX. DISCIPLINARY R. PROF’L CONDUCT 7.07(e)(3).

203 Id. at R. 7.07(e)(4).

204 Id. at R. 7.07(e)(5).

205 Id. at R. 7.07(e)(6).

206 Id. at R. 7.07(e)(7).

207 Id. at R. 7.07(e)(8).

filing requirements do not apply to these types of communications, the general requirements for advertisements still apply.208 But if the communication is not a public advertisement, but rather an individual mailing, then it must merely comply with Rule 7.02. C. Review Process and Consequences for Non-

filing Attorneys may file a communication regarding

their services either before or concurrent with the first dissemination of the communication.209 If an attorney files an advertisement concurrent with the lawyer’s dissemination of the advertisement, the ARC will review that advertisement within forty days after its submission.210 As the comments to rule 7.07 note, “[p]resumably, the Advertising Review Committee will report to the appropriate grievance committee any lawyer whom it finds from the reviewed products has disseminated an advertisement in the public media or solicitation communication that violates Rules 7.02, 7.03, 7.04, or 7.05, or, at a minimum, any lawyer whose violation raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”211 If the ARC and the advertising attorney cannot resolve the issue after exchange of views and requests for additional information, the ARC must refer the matter to State Bar disciplinary counsel, who will decide whether to pursue sanctions against the attorney.212 The penalty for not filing an advertisement is a non-filer fee of $300.213 However, the disciplinary

208 Id. at R. 7.07 cmt. 7.

209 Id. at R. 7.07(a)-(d). The rule requires attorneys to submit communications disseminated after the rule became effective in 2005, even if the communication was first disseminated before the rule became effective. See Rodgers v. Comm’n for Lawyer Discipline, 151 S.W.3d 602, 615 (Tex. App.—Fort Worth 2004, pet. denied).

210 This is a general internal guideline reported by the director of the Advertising division of the State Bar.


212 See Texans Against Censorship, Inc., 888 F. Supp. at 1363 (noting that the committee has no enforcement power and that violations of the rules must be pursued through the normal grievance process).

213 See State Bar of Texas, Professional Requirements---Advertising Review, available at http://www.texasbar.com/Template.cfm?Section=For_Attorn


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sanctions imposed upon the finding of a violation of the filing rules can be steep. 214 For example, in Medlock v. Commission for Lawyer Discipline, the Commission for Lawyer Discipline filed a disciplinary petition in the Harris County District Court alleging that Medlock sent a solicitation letter to a family who had recently been in a traffic accident.215 The commission asserted that Medlock violated rule 7.07 by failing to submit the letter to the Advertising Review Committee prior to or at the time she sent the letter.216 The family filed a grievance against the attorney because the letter was addressed to the family’s four-year-old son!217 The court ordered that Medlock be suspended from the practice of law for twelve months, including six months’ active suspension and six months probated suspension, and it ordered that Medlock pay the State Bar of Texas $3,000 for attorneys’ fees.218 OUCH! Fortunately, the rules also provide that attorneys can seek advisory opinions, or requests for pre-approval, by submitting the advertisement and the $75 filing fee to the ARC not less than thirty days prior to disseminating the advertisement.219 The purpose of the pre-approval process is to allow the attorney to make any corrections to the communication before dissemination.220 Thus, the ARC suggests filing the advertisement thirty days before the last day that any changes can be made to the advertisement before final printing.221

eys&CONTENTID=23680&TEMPLATE=/ContentManagement/ContentDisplay.cfm (last visited June 12, 2009).

214 See, e.g., Medlock v. Comm’n for Lawyer Discipline, 24 S.W.3d 865 (Tex. App.—Texarkana 2000, no pet.). It should be noted that attorneys have challenged rule 7.07’s filing requirements as an unconstitutional burden on the right to free speech, but these attacks have been unsuccessful. See Texans Against Censorship, Inc., 888 F. Supp. at 1363-68.

215 Medlock, 24 S.W.3d at 867.

216 Id.

217 Id.

218 Id.



221 Id.

The rule provides a safe harbor for attorneys who seek pre-approval:

If a lawyer submits an advertisement or solicitation communication for pre-approval, a finding of noncompliance by the Advertising Review Committee is not binding in a disciplinary proceeding or disciplinary action but a finding of compliance is binding in favor of the submitting lawyer as to all materials actually submitted for pre-approval if the representations, statements, materials, facts and written assurances received in connection therewith are true and are not misleading. The finding of compliance constitutes admissible evidence if offered by a party.222

In other words, the ARC will review an advertisement or solicitation and opine on whether it meets the technical requirements of the rule, and if the ARC makes such a determination, a grievance cannot be maintained based on an alleged failure to comply with those technical rules. Obviously, this does not apply to false or misleading communications, which may not be apparent from the face of the advertisement.223 In that regard, the ARC may request a lawyer to substantiate statements or representations made or implied in advertisements or written solicitation communications by which the lawyer seeks paid employment.224

The ARC’s internal operating rules require it to complete evaluations of requests for pre-approval no later than twenty-five days after receiving a filing.225 The ARC can extend that period if it (1) determines that there is a reasonable doubt whether the advertisement or solicitation communication complies with the rules, (2) concludes that further examination is warranted and cannot be completed within the twenty-five day period, and (3) notifies the attorney in writing within the twenty-five day period.226 If the ARC does not notify the lawyer that the period of review has been extended or notify the lawyer that the submission does


223 Id.

224 Id. at R. 7.07(f).

225 Id. at R. 7.07 cmt. 5.

226 Id.


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not pass muster, the ARC’s internal rules provide that the failure to so notify the attorney constitutes approval of the advertisement.227 So no news is good news! In other words, if an attorney sends the advertisement for pre-approval not less than thirty days before the intended dissemination, the attorney should receive either pre-approval, disapproval, or notice that the ARC intends further review before the intended date of dissemination.228 VIII. CONCLUSION

The ethical rules governing advertising or other solicitation communications by attorneys are complex. Fortunately, the Advertising Review Committee of the State Bar of Texas and its staff tend to see their role as one of helping to ensure compliance, rather than as a prosecutorial one. The staff, although busy, generally responds promptly to advance inquiries as to what is or is not permissible under the rules and will work with lawyers to prevent violations if given the opportunity. Better to seek guidance from the staff or a lawyer well versed in such matters than to risk non-compliance.

227 Id.

228 Id.

ATTORNEY ADVERTISING IN TEXAS AFTER THE 2005 RULES … · Appellate Advocate, State Bar of Texas...

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