Concept
Limits on Advertising
Permitted means of advertising and payment for recommendations
Limits on Advertising
Rule 7.2(a) answers one question: through what channels may a lawyer communicate information about the lawyer’s services? Any media, it says.1 The breadth of that answer invites a mistake, because a rule that opens every channel can look like a rule that approves every message and every method of contact. The text speaks only to the medium.
Two limits follow, and they differ in kind. The first concerns the message: a lawyer who advertises through an open channel still answers for what the advertisement says. The second concerns the contact: Rule 7.2(a) governs communications that reach the public at large, and a lawyer who approaches a particular person live, to win that person’s business, has stepped into the territory of a different rule. Both limits mark where the permission stops, and in neither case does the open channel protect the lawyer, since the channel was never in doubt.
Exam facts exploit this by pairing a lawful medium with a defect located elsewhere, so a student who stops at “any media” misses it. Check the message first, then the manner of contact. The two subsections below take them in that order and treat each only far enough to show where Rule 7.2(a) leaves off. The full doctrines belong to Rules 7.1 and 7.3.
Truthfulness Still Governs
Rule 7.2(a) tells a lawyer which channels are open and says nothing about whether a particular message is fit to travel through them.2 Rule 7.1 supplies that test: a lawyer may not make a false or misleading communication about the lawyer or the lawyer’s services, and the standard applies to all regulation of attorney advertising and solicitation.3 The two rules therefore operate in sequence. Rule 7.2(a) lets the lawyer choose a newspaper, a broadcast spot, or a website, and Rule 7.1 then tests what the lawyer puts there. A message that fails the second test gets no shelter from the first.
The Constitution explains why. States may prevent the dissemination of commercial speech that is false, deceptive, or misleading. Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only to serve a substantial governmental interest, and only through means that directly advance that interest.4 A rule against misleading messages therefore stands on firm ground, while a broader restriction on honest messages must meet the stricter test.
Dramatic advertising draws closer attention than informational advertising, and the Zang court said why. Dramatic, nonfactual advertisements, though no doubt effective in attracting clients, are more likely to misrepresent or omit material facts, or to create unjustified expectations about the results a lawyer can achieve, than advertisements that primarily convey factual information to help consumers decide rationally whether to seek legal services.5 Advertisements are less likely to violate the rule when they inform consumers of their rights and of the methods available to meet legal problems, state the availability and costs of services, or convey accurate information, including availability and areas of practice, that helps a consumer choose counsel.6
That attention reaches statements that contain no out-and-out lie. In Kaszynski, an advertisement saying “we speak Spanish” misled because only a nonlawyer assistant spoke Spanish. In Zang, a television advertisement showing a simulated jury trial misled because the lawyer, a recent law school graduate, had never tried a case to a jury. Courts impose discipline on communications that get too clever with the truth.7 An Ohio decision, Medina County Bar Ass’n v. Grieselhuber, went further and found the bare motto “We Do It Well” false and misleading because a prospective client has no way to verify it.8 The motto ran in a permitted medium, and the medium made no difference to the result.
Broadcast advertising shows the same concern at work, because a dramatic pitch can persuade without informing. The Zang court said the bar should examine lawyers’ advertisements to determine whether, taken as a whole, they are predominately informational or simply emotional, irrational sales pitches. The latter may not be prohibited by Arizona’s misleading-content rule on that ground alone, but they should be examined carefully to make sure they are neither false nor misleading.9
The question for a dramatic commercial is therefore whether it misleads, and music, staging, and emotion matter only to that question. The simulated jury trial in Zang failed because the dramatization conveyed a trial experience the lawyer did not have.10 A commercial that uses similar devices to convey accurate information about the lawyer’s availability, costs, and areas of practice carries much less risk.11 An answer that confirms the channel is open has resolved only the first question and still owes an analysis of the message.
Live Solicitation Differs
Truthfulness is one limit on the any-media permission, and the manner of contact is the other. Rule 7.2(a) lets a lawyer communicate information about the lawyer’s services through any media, and what falls inside it depends on the kind of contact the lawyer makes.13 A communication that is not in-person, live telephone, or real-time electronic contact counts as mass-market advertising, which Rule 7.2(a) permits so long as the message does not violate Rule 7.1.14 Live contact aimed at getting a client belongs to Rule 7.3, which prohibits most such communications and so treats them far more strictly than advertising.15 The exceptions to Rule 7.3 are taught elsewhere. This section asks only why the live category is set apart.
The reason comes from Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). The lawyer there solicited Carol McClintock and Wanda Lou Holbert in person and told them of his availability and the terms of his proposed services.16 The Court acknowledged that this solicitation served much the same function as the advertisement in Bates, since both told people a lawyer was available and on what terms.17 It still held that a lawyer’s procurement of remunerative employment is only marginally affected with First Amendment concerns, that it falls within the state’s proper sphere of professional regulation, and that the lawyer’s conduct, though entitled to some constitutional protection, could be regulated in furtherance of important state interests.18 The result is a constitutional split: mass-communication advertising is protected commercial speech, and in-person solicitation may be regulated much more tightly.19
The difference lies in the setting in which the information arrives. A public advertisement, in the Court’s words, “simply provides information and leaves the recipient free to act upon it or not.” In-person solicitation may exert pressure and often demands an immediate response, without an opportunity for comparison or reflection.20 A person asked for an answer on the spot cannot weigh other lawyers’ availability and prices, so a live pitch tends to discourage the critical comparison that made advertising valuable in Bates, and it may produce speedy, one-sided, and uninformed decisions.21 The mechanism is time. A newspaper notice or a billboard waits while the reader thinks, asks a relative, or looks at a competitor’s notice, and a lawyer standing in front of the person offers no such delay.
A second harm is that no one else is present to correct the lawyer. There is no opportunity for intervention or counter-education by agencies of the bar, supervisory authorities, or persons close to the solicited individual. The usual remedy for bad speech, more and better speech, is of little value when the circumstances provide no opportunity for any remedy at all.22 The lawyer in Ohralik conceded that the state has a compelling interest in preventing fraud, undue influence, intimidation, overreaching, and other vexatious conduct, and the Court agreed that protecting the public from these aspects of solicitation is a legitimate and important state interest.23 These harms arise from the setting, so the accuracy of the lawyer’s words does not remove them.
The letter and the billboard mark the permitted side of the line, and two errors come from blurring it. The first treats the protection Bates gave advertising as permission for any truthful message by any route, which overlooks that in-person solicitation may be regulated much more tightly than advertising even when the lawyer’s words are accurate. The second treats a message as live merely because it is addressed to a particular person, when the rule’s wording asks whether the contact is in-person, live telephone, or real-time electronic. A written message the recipient reads later stays on the advertising side, and so does a web banner the viewer may ignore. A back-and-forth exchange in real time that the lawyer starts with a particular person to win business is live contact.