RULE 7.1 COMMUNICATIONS CONCERNING THE SERVICES OF A LAWYER OR PERSONS PROFESSIONALLY ASSOCIATED WITH THE LAWYER

Obsolete Date: 8/1/2006

(a) A lawyer shall not make a false or misleading communication about the lawyer, a person professionally associated with the lawyer, or their services. A communication is false or misleading if it:

(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or

(2) contains an assertion that cannot be substantiated.

(b) A lawyer shall not, by in-person contact made by the lawyer or the lawyer's representative, suggest or request that a nonlawyer employ the lawyer if the nonlawyer has not sought advice from the lawyer or the person professionally associated with the lawyer regarding employment of a lawyer and:

(1) the suggestion or request involves use of a statement or claim that is false or misleading, within the meaning of subsection (a); or

(2) the suggestion or request involves the use of undue influence, coercion, duress, compulsion, intimidation, threat, or vexatious or harassing conduct; or

(3) the lawyer or representative knows or reasonably should know that the potential client's physical or mental condition makes it unlikely that the potential client can exercise reasonable, considered judgment as to the potential employment; or

(4) the suggestion or request involves use of a representative and the lawyer knows or reasonably should know that such conduct violates the representative's contractual or other legal obligations.

(c) A lawyer shall not contact, in person or through a representative, a nonlawyer for the purpose of suggesting or requesting that the nonlawyer employ the lawyer or a person professionally associated with the lawyer if the lawyer or representative knows or reasonably should know that the potential client does not wish to be contacted for this purpose.

(d) A lawyer shall not assist an organization that furnishes or pays for legal services to others to promote the use of the lawyer's services or the services of any person professionally associated with the lawyer, if the lawyer knows, or reasonably should know, that the promotional activity involves the use of undue influence, coercion, duress, compulsion, intimidation, threat, or vexatious or harassing conduct.

COMMENT

This Rule governs communications about a lawyer, a person professionally associated with a lawyer, or their services. The Rule applies to communications about nonlawyers professionally associated with lawyers and their services. See Rule 5.4. The communications covered by this Rule include advertising and in-person contact by the lawyer or the lawyer's representative.

This Rule permits public dissemination of any information that might invite the attention of those seeking the assistance of a lawyer or a person professionally associated with a lawyer, except information that is false or misleading. Statements about these persons and their services must be accurate, since many members of the public lack detailed knowledge of legal matters. Certain communications, including those that describe the amount of a damage award or the lawyer's record in obtaining favorable verdicts or those containing client endorsements, unless suitably qualified, may mislead by creating an unjustified expectation that similar results can be obtained for others. Communications comparing the lawyer's services with those of other lawyers are false or misleading if the claims cannot be substantiated.

Advertising

To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition.

Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specific facts about a lawyer, or against "undignified" advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant.

In-Person Contact

In-person contact with potential clients can create problems not present with advertising because of the particular circumstances in which the contact takes place. This Rule prohibits in-person contact in circumstances or involving means that are not conducive to intelligent and rational decisions about employment of the lawyer. It also prohibits in-person contact when the lawyer or the lawyer's representation knows that the potential client does not wish to be contacted about employment of the lawyer. Especially in those circumstances involving contact by paid representatives, it may be misrepresentation to fail to disclose that the advice to employ a lawyer is not disinterested.

Direct Mail

A lawyer's mailed communication to a potential client suggesting or recommending that the lawyer be employed is in form not different from a public advertisement, but the circumstances of its receipt--particularly with respect to so-called "targeted" mailings--can pose problems similar to those created by in-person contact. Disciplinary authorities and the courts have not agreed on the principles applicable to direct mail contact; some have thought it advertising and thus within the lawyer's absolute constitutional right so long as not false or misleading, while others have determined it subject to the more detailed regulation permitted over in-person contact. It is, however, clear that such mailed communications could also be considered contact with a nonlawyer through a representative, and thus be regulated under paragraphs (b) and (c) of this Rule, should it be determined constitutionally permissible. At the business meeting of the State Bar Association of North Dakota at which these Rules were adopted, a part of the resolution of adoption recognized that direct mail contact might ultimately be determined to be beyond detailed regulation, but at the same time recorded as the Association's position that it does not endorse, support, or favor direct mail contact with potential clients.

Paying Others to Recommend a Lawyer

A lawyer is allowed to pay another person to contact potential clients, through mass media or individually, but not if the lawyer knows or reasonably should know that the use of this representative violates the representative's contractual or other legal obligations.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 11/08/85, 12/13/85 and 01/10/86 and Pursuant to Resolution of the State Bar Association of North Dakota on 06/13/86