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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

VII. INFORMATION ABOUT LEGAL SERVICES

7.1 Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 7.1
  • Background References: ABA Model Rule 7.1, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

7.1:101   Model Rule Comparison

ARPC Rule 7.1 allows communication regarding certain certifications as specifically designated in Rule 7.4. Otherwise, it is similar to the model rule.

7.1:102   Model Code Comparison

Inapplicable.

7.1:200 Lawyer Advertising--In General

  • Primary Alabama References: AL Rule 7.1
  • Background References: ABA Model Rule 7.2, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

7.1:210   Prior Law and the Commercial Speech Doctrine

ARPC Rule 7.1 generally restricts the substance of "all communications concerning the lawyer's services, including advertising permitted by Rule 7.2." The basis of Rule 7.1 is to prohibit attorneys from making false or misleading communications about their services. The general ban on false and misleading communications protects the public from receiving inaccurate information but does so in a manner that preserves a lawyer's "First Amendment right to communicate information to the public. . . ." (RO-89-01).

7.1:220   False and Misleading Communications

A communication is misleading or false if it contains a "material misrepresentation of fact or law or omits a fact that is necessary to make the statement considered as a whole not materially misleading." ARPC 7.1(a). In Ethics Opinion RO-92-86, the Disciplinary Commission determined that an advertisement was misleading when it compared the number of lawyers certified by the National Board of Trial Advocacy, 19, with the number of attorneys practicing law in the State of Alabama, 9,300. The advertisement neglected to state that "lawyers are not unilaterally selected for recognition by the National Board of Trial Advocacy. . .[but rather the lawyers] themselves make applications and are certified if they meet the National Board of Trial Advocacy's criteria." See also, Ethics Opinion 92-14 which states that: "[t]he purpose of including a disclaimer is to dissipate the possibility of consumer confusion or deception." An arrangement whereby advertising expenses are paid by someone or some entity other than the lawyer whose services are being advertised also violates the rule. (Ethics Opinion RO-99-01). The arrangement misleads the client as to which attorney will be representing him/her because the client believes that he is contacting the attorney whose services were advertised and not those who were subsidizing the advertisement.

7.1:230   Creating Unjustifiable Expectations

Promising or representing the amount of potential damage awards, the lawyer's record in obtaining favorable verdicts and advertisements containing client endorsements can create unjustified expectations. An advertisement of damages awarded in previous representations without reference to specific facts and circumstances is likely to generate the expectation that similar results can be achieved in every case. (Ethics Opinion RO-90-61). Additional factors besides the lawyer's skill contribute to the result in any case so that claims based on results are especially misleading. (Ethics Opinion RO-93-08). Thus, the focus is not whether the facts are true but whether their inclusion could create an unjustifiable expectation by a lay person. (Ethics Opinion RO-93-08). It is ethically permissible for a firm to include in its advertisement that one of its attorneys was a former district and circuit judge because historically correct information regarding an attorney's holding of public or quasi public offices, scholastic distinctions, military services, have been permitted. (Ethics Opinion RO-89-01).

7.1:240   Comparison with Other Lawyers

Generally, a communication is viewed as false or misleading if it compares the qualities of a lawyer's service with the quality of other lawyer's services. Further, lawyers are precluded from advertising themselves as specialists in a particular field unless they satisfy the parameters of ARPC Rule 7.4.

7.2 Rule 7.2 Advertising

7.2:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 7.2
  • Background References: ABA Model Rule 7.2, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

7.2:101   Model Rule Comparison

ARPC Rule 7.2 has more detailed requirements that further outline procedures to be followed when a lawyer advertises. One of the notable differences of the Alabama rule is that it requires advertisements be delivered to the State Bar within three (3) days of their first public showing along with detailed information about the advertisement including duration and publisher. In addition, the Alabama rule requires the lawyer to maintain a copy of the advertisement for six (6) years while the model rule only specifies two (2) years. The Alabama rule also provides certain specific language to accompany any advertisement, requires any advertised rate be valid for sixty (60) days, and prevents the lawyer from advertising a special rate just to get potential clients into the lawyer's office.

7.2:102   Model Code Comparison

Inapplicable.

7.2:200 Permissible Forms of Lawyer Advertising

  • Primary Alabama References: AL Rule 7.2(a)
  • Background References: ABA Model Rule 7.2(a), Other Jurisdictions
  • Commentary: ABA/BNA § 81.201, Wolfram § 14.2
  • Alabama Commentary:

Advertising is generally permitted through public media such as telephone directories, legal directories, newspapers or other periodicals, outdoor displays, radio, television or written communication. The rules regarding advertisement apply as well to lawyer advertising on the Internet and private on-line services. (RO-96-07). The required disclaimer must leave "no doubt that it is clearly relating to the advertisement. (RO-92-14)(a newspaper containing several lawyer advertisements printed on a single page needs only to display the disclaimer one time at the bottom of the page rather than within each advertisement so long as it is clear the disclaimer applies to all the advertisements).

7.2:300 Retaining Copy of Advertising Material

  • Primary Alabama References: AL Rule 7.2(b)
  • Background References: ABA Model Rule 7.2(b), Other Jurisdictions
  • Commentary: ABA/BNA § 81:401, Wolfram § 14.2
  • Alabama Commentary:

An attorney is required to retain a copy of advertising material for six (6) years after its last dissemination.

7.2:400 Paying to Have Services Recommended

  • Primary Alabama References: AL Rule 7.2(c)
  • Background References: ABA Model Rule 7.2(c), Other Jurisdictions
  • Commentary: ABA/BNA § 81.301, Wolfram § 14.2
  • Alabama Commentary:

ARPC Rule 7.2(c) prohibits lawyers from taking part in a for-profit referral service. One purpose of the rule is to prevent fee-splitting between lawyers and nonlawyers and, as a result, "for-profit services are not permitted." (RO-90-49). A lawyer may participate in a not for profit lawyer referral program and pay the usual fees charged by such programs. Attorneys may participate in a group advertising scheme so long as it cannot be classified as a for-profit referral service. Alabama State Bar Association v. R.W. Lynch, Inc., 655 So.2d 982 (Ala. 1995).

An arrangement whereby advertising expenses are paid by someone or some entity other than the lawyer whose services are being advertised violates ARCP 7.1 in that advertising under such circumstances would constitute "a false or misleading communication about the lawyer or the lawyer's services." Additionally, payment of advertising expenses in exchange for referrals violates the prohibition in ARCP 7.2(c) against a lawyer giving "anything of value to a person for recommending the lawyer's services." (RO-99-01).

7.2:500 Identification of a Responsible Lawyer

  • Primary Alabama References: AL Rule 7.2(d)
  • Background References: ABA Model Rule 7.2(d), Other Jurisdictions
  • Commentary: ABA/BNA §§ 81.201, 81:301, Wolfram § 14.2
  • Alabama Commentary:

The communication must list at least one lawyer who is responsible for the advertisement.

7.3 Rule 7.3 Direct Contact with Prospective Client

7.3:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 7.3
  • Background References: ABA Model Rule 7.3, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

7.3:101   Model Rule Comparison

ARPC Rule 7.3 has substantially altered the model rule, however, it does so by adding more specific detail and guidelines to better protect the public. ARPC Rule 7.3 extends the prohibition on prospective client contact under the prescribed circumstances to employees and agents of the lawyer. The rule also provides more detailed provisions regarding written communications to prospective clients including no written communication in personal injury or wrongful death actions within thirty (30) days of the incident, no written communication when a lawyer knows or should have known that the prospective client is represented by counsel, when the lawyer knows the prospective client does not want to receive the communication, when the communication involves coercion, duress, fraud, overreaching, harassment, intimidation or undue influence by the lawyer or when the lawyer knows or reasonably should know that the person is a minor or is an incompetent. The rule also requires samples of communications be maintained for six (6) years as well as the names and addresses of all persons to whom the communication was made. Notably Section d of the model rule was not explicitly adopted by Alabama.

7.3:102   Model Code Comparison

Inapplicable.

7.3:200 Prohibition of For-Profit In-Person Solicitation

  • Primary Alabama References: AL Rule 7.3(a)
  • Background References: ABA Model Rule 7.3(a), Other Jurisdictions
  • Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5
  • Alabama Commentary:

In Ex Parte Stephens v. Life Ins. Co. of Georgia, 676 So.2d 1307 (Ala. 1996), the Court concluded that interviewing a former policyholder to develop a current case against an insurance company would not violate Rule 7.3 because there was not any evidence that the plaintiff's counsel was seeking employment for pecuniary gain. Further, in Norris v. Alabama State Bar, 582 So.2d 1034 (Ala. 1991) the Court determined that solicitation is not limited to in-person and telephonic contact.

7.3:210   Solicitation by Non-Profit Public Interest Organization

7.3:220   Solicitation of Firm Clients by a Departing Lawyer

An attorney breaches his fiduciary duty to firm if he solicits firm clients before leaving firm. Vowell & Meelheim, P.C. v. Beddow, Erben & Bowen, P.A., 679 So.2d 637 (Ala. 1996). In such a situation, as to contingent work, the attorney is only entitled to the percentage of fees recovered that he would have received had he stayed with firm plus a reasonable hourly rate for time spent on the matter after his departure. If no improper solicitation or breach of fiduciary duty, former firm may be entitled to quantum meruit only. Gamble v. Corley, Moncus & Ward, P.C., 723 So.2d 627 (Ala. 1998).

7.3:300 Regulation of Written and Recorded Solicitation

  • Primary Alabama References: AL Rule 7.3(b)
  • Background References: ABA Model Rule 7.3(b), Other Jurisdictions
  • Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5
  • Alabama Commentary:

Improper solicitation includes communication aimed at specific persons only if it fails to meet certain requirements. Written communications are not restricted to the same extent as other forms of communication because they generally present less potential for abuse. Lawyers are generally prohibited from sending written communications to prospective clients (1) when the communication relates to an action for personal injury or wrongful death and is sent within thirty (30) days of the accident to a person potentially involved in such a claim, (2) when the lawyers are aware or should be aware that the person has already obtained counsel, (3) when the lawyer knows the potential client does not want to be contacted, (4) when the written communication involves duress, harassment or other improper tactics, (5) when the communication is deceptive, fraudulent, or otherwise prohibited by 7.1, or (6) when the lawyer is aware or should be aware that this prospective client is incapable of making a competent decision, for example, a potential client is a minor or incompetent. If the written communication is not prohibited it must satisfy certain listed restrictions contained in ARPC Rule 7.3(b)(2).

With respect to direct mail solicitations, it is not permissible to add other words and terms on the envelope besides the word "Advertisement." (RO-96-05). Further, the submission of computer disks containing the names and addresses of persons to whom direct mail letters have been sent does not comply with the requirements of Rule 7.3(b)(2)(i). (RO-96-05).

7.3:400 Disclaimers for Written and Recorded Solicitation

  • Primary Alabama References: AL Rule 7.3(c)
  • Background References: ABA Model Rule 7.3(c), Other Jurisdictions
  • Commentary: ABA/BNA § 81:401, Wolfram § 14.2.5
  • Alabama Commentary:

With respect to direct mail solicitations, it is not permissible to add other words and terms on the envelope besides the word "Advertisement." (RO-96-05). Further, the submission of computer disks containing the names and addresses of persons to whom direct mail letters have been sent does not comply with the requirements of Rule 7.3(b)(2)(i). (RO-96-05).

7.3:500 Solicitation by Prepaid and Group Legal Services Plans

  • Primary Alabama References: AL Rule 7.3(d)
  • Background References: ABA Model Rule 7.3(d), Other Jurisdictions
  • Commentary: ABA/BNA § 81:2501, Wolfram § 16.5.5
  • Alabama Commentary:

7.4 Rule 7.4 Communication of Fields of Practice

7.4:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 7.4
  • Background References: ABA Model Rule 7.4, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

7.4:101   Model Rule Comparison

ARPC Rule 7.4 is substantially similar to the model rule.

7.4:102   Model Code Comparison

Inapplicable.

7.4:200 Regulation of Claims of Certification and Specialization

  • Primary Alabama References: AL Rule 7.4
  • Background References: ABA Model Rule 7.4, Other Jurisdictions
  • Commentary: ABA/BNA §§ 21:4001, 81:501, Wolfram § 14.2.4
  • Alabama Commentary:

A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may not state or imply that he is a specialist, that he has a specialty or that he specializes in a particular area of practice as these labels can be misleading. Three exceptions to this general rule are the lawyer may identify himself as a patent attorney if he has been admitted to the Patent Bar, he may use the label of admiralty or proctor in admiralty if the lawyer practices in this field or he may assert that he has been certified as a specialist in a field of law by a named organization or authority previously approved by the Alabama State Board of Legal Certification to grant certifications. A firm brochure advertising that the firm practiced in the field of bankruptcy law was permissible. (RO-90-09).

7.5 Rule 7.5 Firm Names and Letterheads

7.5:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 7.5
  • Background References: ABA Model Rule 7.5, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

7.5:101   Model Rule Comparison

ARPC Rule 7.5 is substantially similar to the model rule. The Alabama rule does explicitly require compliance with ARPC Rule 7.4. ARPC Rule 7.6 generally prohibits distributing non-lawyers' business cards which represent non-lawyers as lawyers.

7.5:102   Model Code Comparison

Inapplicable.

7.5:200 Firm Names and Trade Names

  • Primary Alabama References: AL Rule 7.5(a)
  • Background References: ABA Model Rule 7.5(a), Other Jurisdictions
  • Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4
  • Alabama Commentary:

A law firm may use a trade name as long as it does not indicate that the law firm is affiliated with a government agency or service organization or does not violate the rules regarding lawyer communication or fields of practice. The trade name must not be misleading.

7.5:300 Law Firms with Offices in More Than One Jurisdiction

  • Primary Alabama References: AL Rule 7.5(b)
  • Background References: ABA Model Rule 7.5(b), Other Jurisdictions
  • Commentary: ABA/BNA § 81:3001, Wolfram § 15.4
  • Alabama Commentary:

If a law firm has an office in another jurisdiction it may call its Alabama office by the same name. If an attorney in a firm is not licensed to practice in Alabama this fact should be included on the letterhead if the lawyer is listed.

7.5:400 Use of the Name of a Public Official

  • Primary Alabama References: AL Rule 7.5(c)
  • Background References: ABA Model Rule 7.5(c), Other Jurisdictions
  • Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4
  • Alabama Commentary:

A lawyer who holds a public office should not use his name in the law firm or in a communication on its behalf during the time in which the lawyer is not practicing with the firm.

7.5:500 Misleading Designation as Partnership, etc.

  • Primary Alabama References: AL Rule 7.5(d)
  • Background References: ABA Model Rule 7.5(d), Other Jurisdictions
  • Commentary: ABA/BNA § 81:3001, ALI-LGL § 58, Wolfram § 14.2.4
  • Alabama Commentary:

A law firm may not use a name that is misleading.