Former Rules

Former Rules of Professional Conduct: Rule 7.1--Communications Concerning a Lawyer's Services

This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the Amended Rules took effect.

   (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s 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 about the lawyer or the lawyer’s services that cannot be substantiated.
   (b) A lawyer shall not seek by in-person contact, or through an intermediary, employment (or employment of a partner or associate) by a nonlawyer who has not sought the lawyer’s advice regarding employment of a lawyer, if:
     (1) The solicitation involves use of a statement or claim that is false or misleading, within the meaning of paragraph (a);
     (2) The solicitation involves the use of undue influence;
     (3) The potential client is apparently in a physical or mental condition which would make it unlikely that the potential client could exercise reasonable, considered judgment as to the selection of a lawyer;
     (4) The solicitation involves use of an intermediary and the lawyer knows or could reasonably ascertain that such conduct violates the intermediary’s contractual or other legal obligations; or
     (5) The solicitation involves the use of an intermediary and the lawyer has not taken all reasonable steps to ensure that the potential client is informed of (a) the consideration, if any, paid or to be paid by the lawyer to the intermediary, and (b) the effect, if any, of the payment to the intermediary on the total fee to be charged.
   (c) A lawyer shall not knowingly assist an organization that furnishes or pays for legal services to others to promote the use of the lawyer’s services or those of the lawyer’s partner or associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, as a private practitioner, if the promotional activity involves the use of coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.
   (d) No lawyer or any person acting on behalf of a lawyer shall solicit or invite or seek to solicit any person for purposes of representing that person for a fee paid by or on behalf of a client or under the Criminal Justice Act, D.C. Code Ann. § 11-2601 et seq., in any present or future case in the District of Columbia Courthouse, on the sidewalks on the north, south, and west sides of the courthouse, or within 50 feet of the building on the east side.

Comment

   [1] This Rule governs all communications about a lawyer’s services, including advertising. It is especially important that statements about a lawyer or the lawyer’s services be accurate, since many members of the public lack detailed knowledge of legal matters. Certain advertisements such as those that describe the amount of a damage award, the lawyer’s record in obtaining favorable verdicts, or those containing client endorsements, unless suitably qualified, have a capacity to mislead by creating an unjustified expectation that similar results can be obtained for others. Advertisements comparing the lawyer’s services with those of other lawyers are false or misleading if the claims made cannot be substantiated.

Advertising
   [2] 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.
   [3] This Rule permits public dissemination of information concerning a lawyer’s name or firm name, address, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
   [4] 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.
   [5] There is no significant distinction between disseminating information and soliciting clients through mass media or through individual personal contact. In-person solicitation can, however, create additional problems because of the particular circumstances in which the solicitation takes place. This Rule prohibits in-person solicitation in circumstances or through means that are not conducive to intelligent, rational decisions.

Paying Others to Recommend a Lawyer
   [6] A lawyer is allowed to pay for advertising permitted by this Rule. This Rule also permits a lawyer to pay another person for channeling professional work to the lawyer. Thus, an organization or person other than the lawyer may advertise or recommend the lawyer’s services. Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs. However, special concerns arise when a lawyer is making payments to intermediaries to recommend the lawyer’s services to others. These concerns are particularly significant when the payments are not being made to a recognized or established agency or organization, such as an organized lawyer referral program. In employing intermediaries, the lawyer is bound by all of the provisions of this Rule. However, subparagraphs (b)(4) and (b)(5) contain provisions specifically relating to the use of intermediaries.
   [7] Subparagraph (b)(4) forbids a lawyer to solicit clients through another person when the lawyer knows or could reasonably ascertain that such conduct violates a contractual or other legal obligation of that other person. For example, a lawyer may not solicit clients through hospital or court employees if solicitation by such employees is prohibited by their employment contracts or rules established by their employment. This prohibition applies whether or not the intermediary is being paid.
   [8] Subparagraph (b)(5) imposes specific obligations on the lawyer who employs an intermediary to ensure that the potential client who is the target of the solicitation is informed of the consideration paid or to be paid by the lawyer to the intermediary, and any effect of the payment of such consideration on the total fee to be charged. The concept of payment, as incorporated in subparagraph (b)(5), includes giving anything of value to the recipient and is not limited to payments of money alone. For example, if an intermediary were provided the free use of an automobile in return for soliciting clients on behalf of the lawyer, the obligations imposed by subparagraph (b)(5) would apply and impose the specified disclosure requirements.

Solicitations in the Vicinity of the District of Columbia Courthouse
   [9] Paragraph (d) is designed to prohibit unseemly solicitations of prospective clients in and around the District of Columbia Courthouse. The words "for a fee paid by or on behalf of a client or under the Criminal Justice Act" have been added to paragraph (d) as it was originally promulgated by the District of Columbia Court of Appeals in 1982. The purpose of the addition is to permit solicitation in the District of Columbia Courthouse for the purposes of pro bono representation. For the purposes of this Rule, pro bono representation, whether by individual lawyers or nonprofit organizations, is representation undertaken primarily for purposes other than a fee. That representation includes providing services free of charge for individuals who may be in need of legal assistance and may lack the financial means and sophistication necessary to have alternative sources of aid. Cases where fees are awarded under the Criminal Justice Act do not constitute pro bono representation for the purposes of this Rule. However, the possibility that fees may be awarded under the Equal Access to Justice Act and Civil Rights Attorneys’ Fees Awards Act of 1976, as amended, or other statutory attorney fee statutes, does not prevent representation from constituting pro bono representation.