Advertising Through Any Medium

Advertising Media and Paid Referrals

Advertising Through Any Medium

Model Rule 7.2(a) permits a lawyer to communicate information about the lawyer’s services through any media.¹ The rule names no approved channel and no forbidden one. A newspaper notice, a directory listing, a radio or television spot, a mailing, and an internet banner all fit within it, and so will any medium invented later, because the permission attaches to the lawyer’s speech and not to the technology that carries it. That makes Rule 7.2(a) the first of two questions to ask about a marketing practice, and the only thing it answers is whether the channel is open. The second question, whether the lawyer paid anyone for a recommendation, comes later in this chapter.

The permission marks a change in how the law treats lawyer advertising. In Bates v. State Bar of Arizona, the Supreme Court held that lawyers’ commercial speech receives limited but meaningful First Amendment protection. The Court doubted that advertising would diminish the reputation of attorneys, gave no weight to professional etiquette, and rejected the argument that lawyer advertising “inevitably will be misleading.”² It reasoned that a rule allowing restrained advertising would accord with the bar’s obligation to “facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.”³ Under the Model Rules today, lawyer advertising is forthrightly accepted, even if not universally admired, and regulation aims at false or misleading communications.⁴ The next section takes up Bates in detail.

A rule built on that purpose has no reason to rank media. If advertising helps people choose a lawyer and find legal services, closing a channel withholds information the public could use. The danger the rules address is a false or misleading message, and a message can mislead in any channel, so the rules test the message and leave the channel alone.

Broadcast media put the medium-neutral approach under the most pressure, because Bates itself flagged them. The Court said that reasonable time, place, and manner restrictions would remain permissible and that “the special problems of advertising on the electronic broadcast media will warrant special consideration.”⁵ A state could have followed that signal by restricting television and radio, but the Arizona Supreme Court in re Zang did not. It wrote that its rules placed no special restrictions on television or radio broadcasts and that it saw no need to add any, observing that some music or drama may help convey a lawyer’s message. It asked instead that lawyer advertising, particularly on the electronic media, be predominately informational, which fits both the rationale for protecting lawyer advertising and the public’s interest in access to and knowledge about lawyers and legal services.⁶ The commercial in that case showed a simulated jury trial staged by a recent law school graduate who had never tried a case to a jury, and it was misleading for that reason.⁷ Television was never the problem there; the content was.

The permission therefore has two limits, and an exam question often turns on which one the facts reach. The first is content. Rule 7.1 forbids a false or misleading communication about the lawyer or the lawyer’s services, and it is the overarching standard for all regulation of attorney advertising and solicitation.⁸ Many cases fall in the gray zone between truth and falsity, and in those the dispute is whether the particular communication misleads, not whether the channel was available.⁹

The second limit is the manner of contact. Direct solicitation of clients by lawyers remains forbidden, with limited exceptions, so live contact aimed at getting a client falls under Rule 7.3 and not under Rule 7.2(a).¹⁰ The reason lies in the setting. The Supreme Court has described face-to-face solicitation as “a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud,” and it pointed to the “coercive force of the personal presence of a trained advocate” and the “pressure on the potential client for an immediate yes-or-no answer to the offer of representation.”¹¹ A published advertisement carries no such presence or pressure. Rules 7.1 and 7.3 receive fuller treatment later in this chapter; here they mark the edges of Rule 7.2(a). Students most often err by assuming that a lawful channel makes any message lawful, or that permission to advertise reaches every way of getting clients.