(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.
