blind justice sculpture (photo) Arkansas
Legal Ethics

LII

 collection home   search tell me more

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of Arkansas Rule

7.1:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

7.1:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

7.1:200   Lawyer Advertising--In General

7.1:210      Prior Law and the Commercial Speech Doctrine

Following Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Arkansas Supreme Court modified the rules on advertising and permitted a "laundry list" of acceptable statements or items. Per Curiam Order of July 17, 1978, 263 Ark. 948. In dissent, Justice Howard called for the adoption of rules that would essentially ban only false, deceptive or misleading advertisements. That dissent subsequently became the permissible standard with the adoption of the Model Rules. The historical framework and the economic aspects of legal advertising are discussed in Matthew A. Victor, "The Signs are Very Ominous and a Chill Wind Blows": Recent Developments in Legal Advertising, 44 ARK. L. REV. 123 (1991).

Ar. Code █ 16-22-213, enacted in 1987, which makes it a criminal offense for attorneys to use the media to directly solicit clients or encourage litigation, is of dubious constitutionality in light of Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) and Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988).

7.1:220      False and Misleading Communications

See 7.1:100. Arkansas has no case law or authority on this topic.

7.1:230      Creating Unjustifiable Expectations

See 7.1:100.

7.1:240      Comparison with Other Lawyers

Arkansas has no case law or authority on this topic.

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of Arkansas Rule

7.2:101      Model Rule Comparison

AR Rule 7.2(b) requires advertisements to be kept for five (rather than two) years. AR Rule 7.2(c) omits the provision referring to Rule 1.17, which has not been adopted in Arkansas.

7.2:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

7.2:200   Permissible Forms of Lawyer Advertising

AR Rule 7.2 places no restrictions on the type of public media. Outdoor billboards, radio and television advertising are specifically permitted. Issues such as the use of photographs, informational advertising, price advertising, the limitation to tasteful or dignified advertising, the use of actors, dramatizations and endorsements, and the disclosure of other degrees and associations are moot.

7.2:300   Retaining Copy of Advertising Material

Arkansas requires advertising material to be kept for five years.

7.2:400   Paying to Have Services Recommended

Arkansas has no case law or authority on this topic.

7.2:500   Identification of a Responsible Lawyer

Arkansas has disciplined attorneys for failure to place identification in advertisements.

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of Arkansas Rule

7.3:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

7.3:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

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

7.3:210      Solicitation by Non-Profit Public Interest Organization

Arkansas has no case law or authority on this topic.

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

Arkansas has no case law or authority on this topic.

7.3:300   Regulation of Written and Recorded Solicitation

In Eaton v. Comm. on Prof. Conduct, 270 Ark. 573, 607 S.W.2d 55 (1980), cert. denied, 450 U.S. 966 (1981), noted at 35 ARK. L. REV. 549 (1981), the Arkansas Supreme Court disciplined attorneys for engaging in direct mail advertising to the residents of a geographical area. Such general mailings are not prohibited by these new rules.

The revisions compelled by Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988) permit an attorney to solicit by mail individual clients known to need legal services. Provided the written material is marked "advertising", does not constitute harassment or coercion, does not contain false or misleading statements, and does not violate the express desire of the individual not to be contacted, written solicitation is permitted.

Additionally, in-person or telephone solicitation is permitted of relatives and former clients. This rule permits attorneys to solicit legal work from former clients, even if the nature of the solicitation is unrelated to the former representation. Finally, an attorney may solicit potential clients if a significant motive is not the lawyer's pecuniary gain. For a discussion of solicitation of clients to serve as representatives in class action litigation, see Union National Bank v. Barnhart, 308 Ark. 190, 823 S.W. 2d 878 (1992) (actions of attorney did not justify denial of class certification). See also Hunt v. Riley, 322 Ark. 453, 909 S.W. 2d 329 (1995) (action by attorney against non-lawyers alleging solicitation of accident victims dismissed for failure to state a claim for relief).

7.3:400   Disclaimers for Written and Recorded Solicitation

In February 1993 the Arkansas Bar Association petitioned the Supreme Court to modify the rules on advertising and solicitation. The most significant changes would have prohibited written solicitation in personal injury and wrongful death cases until 30 days after the accident, expanded the information that must be included on the envelope and in a written solicitation letter, forbade the use of non-lawyers in advertisements, and required all lawyers that advertise to have factual information about themselves available for potential clients. In light of Florida Bar v. Went For It, Inc., ___ U.S. ___, 115 S.Ct. 2371 (1995), the proposal was withdrawn to gather empirical data. See Tonia S. Goolsby, Note, Does Ambulance-Chasing in Florida Justify Advertising Reform in Arkansas?, 49 ARK. L. REV. ___ (1996). A revised proposal has been submitted to the Arkansas Supreme Court.

7.3:500   Solicitation by Prepaid and Group Legal Services Plans

Arkansas has no case law or authority on this topic.

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of Arkansas Rule

7.4:101      Model Rule Comparison

AR Rule 7.4(c) provides that an attorney ˝who has been recognized as a specialist under the Arkansas Plan of Specialization approved by the Arkansas Supreme Court may communicate that the fact that he is a ˝Board Recognized Specialist in __________ Law under the plan.ţ

7.4:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

7.4:200   Regulation of Claims of Certification and Specialization

Specialization was a long time coming to Arkansas. In the sense that an attorney may communicate his specialty to the public, Arkansas historically only recognized a specialty of patent law. The Arkansas Bar Association first proposed the Arkansas Designation Plan, which would have permitted an attorney with four years of experience to be designated as a specialist in a maximum of three approved areas of specialization, provided he had spent at least 25% of his practice time in that area. With little investigation and no testing, he would have been certified as a specialist. Concluding that the plan would be misleading, and that it did not provide a true test of competency in a specialty, the Court rejected the plan. In re Amendments to the Code of Professional Responsibility, 267 Ark. 1181, 590 S.W.2d 2 (1979).

The Bar Association returned to the Supreme Court with a specialization plan, rather than a designation plan. The model proposed was intended to be stricter, with tightened requirements of experience, testing and continuing education. In the expectation that this plan would serve the public in its informed selection of an attorney, the Court approved the plan. In re Amendments to the Code of Professional Responsibility and Canons of Judicial Ethics, 276 Ark. 600, 637 S.W.2d 589 (1982). In its opinion the Court questioned the appeal process available to attorneys who are refused certification, emphasized that the administrative costs are to be borne by participating attorneys and not the bar at large, and suggested a disclaimer to be included with any advertising.

Subsequently the Court altered its role in the specialization process. The Court approved the Arkansas Plan of Specialization and appointed the Arkansas Board of Legal Specialization. Per Curiam of May 11, 1992, 309 Ark. 632. Neither the Office of Professional Programs nor Court personnel is involved in implementing or administering the specialization program. The Board drafts regulations, selects specialties, sets fees, designates specialty committees and the advisory committee, and employs an executive secretary to administer the program of specialization.

The standards for a tax specialty were approved by the Court in the Per Curiam of January 21, 1985, 284 Ark. 585, 682 S.W.2d LVII. The first tax specialists were certified in August 1986. Consideration has been given to a specialty in Domestic Relations. See Per Curiam of March 20, 1989, 298 Ark. 653, 766 S.W.2d 618; ARKANSAS LAWYER (April 1988) 115.

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of Arkansas Rule

7.5:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

7.5:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

7.5:200   Firm Names and Trade Names

Arkansas has no case law or authority on this topic.

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

Arkansas has no case law or authority on this topic.

7.5:400   Use of the Name of a Public Official

Arkansas has no case law or authority on this topic.

7.5:500   Misleading Designation as Partnership, etc.

Arkansas has no case law or authority on this topic.