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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arizona Legal Ethics

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of Arizona Rule

7.1:101      Model Rule Comparison

The 2003 amendments effectively abandoned the approach previously taken in the Arizona Rules of Professional Conduct to lawyer advertising and communications with prospective clients in favor of a return to the structure of the Model Rules. The amendments to this Rule reduced the pages of detailed requirements for lawyer communications to a single paragraph, while retaining the core principle that lawyers may not make false or misleading communications concerning their services to prospective clients.

AZ-ER 7.1 and its accompanying Comment are now identical to MR 7.1 and its accompanying Comment.

7.1:102      Model Code Comparison

DR 2-101 provided that "[a] lawyer shall not . . . use . . . any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement of claim."

DR 2-101(B) provided that a lawyer "may publish or broadcast . . . the following information . . . in the geographic area or areas in which a significant part of the lawyer's clientele resides, provided that the information . . . complies with DR 2-101(A), and is presented in a dignified manner . . ." DR 2-101(B) then specified 25 categories of information that may be disseminated. DR 2-101(B) also specified that a lawyer "may publish or broadcast, subject to DR 2-103, . . . in print media . . . or television or radio . . ."

DR 2-101(C) of the Arizona Code provided that "[a]ny person desiring to expand the information authorized for disclosure in DR 2-101(B), or to provide for its dissemination through other forums may apply to the Committee on Rules of Professional Conduct of the State Bar of Arizona. . . . The relief granted in response to any such application shall be promulgated as an amendment to DR 2-101(B), universally applicable to all lawyers."

DR 2-101(D) provided that a lawyer "shall not compensate or give anything of value to a person or organization to recommend or secure his employment . . . except that he may pay the usual and reasonable fees or dues charged by any of the [legal aid and other legal services] organizations listed in DR 2-103(D)." DR 2-101(I) provided that a lawyer "shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item."

7.1:200   Lawyer Advertising--In General

7.1:210      Prior Law and the Commercial Speech Doctrine

Arizona has the distinction - dubious in the minds of some - of having given rise to the seminal decision holding that advertising by lawyers of their services was "commercial speech" protected by the First Amendment to the United States Constitution which could not, accordingly, be flatly prohibited - Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Prior to the decision in Bates, and indeed for a time thereafter until its ramifications were fully developed by subsequent Supreme Court decisions, the rules concerning where and in what fashion lawyers could inform the general public concerning their services were quite restrictive. See the discussion of the provisions of the former Code of Professional Responsibility in Section 7.1:102, supra. Arizona was, quite obviously, no exception to that general rule.

Thus, in Arizona Ethics Opinion No. 84-06, the Committee on the Rules of Professional Conduct ("the Committee") ruled that an attorney could not place adhesive-backed sticker advertisements in hospital telephone booths. On the other hand, in Arizona Ethics Opinion No. 84-13, the Committee held that an attorney could use the "Talking Yellow Pages" as a means of advertising if a copy of all advertisements was maintained by the attorney and the content of the advertisements met the requirements of DR 2-101(D) and DR 2-102(A)(5). In Arizona Ethics Opinion No. 80-16, the Committee indicated that an attorney could state in an advertisement that he was also a certified public accountant, but could not refer to his availability to render accounting services.

In Arizona Ethics Opinion No. 83-05, the Committee held that a direct mail solicitation letter to that segment of the general public which may be contemplating filing a voluntary petition in bankruptcy was impermissible. Similarly, in Arizona Ethics Opinion No. 83-04, the Committee ruled that an attorney could not permissibly run an advertisement that describes legal rights and expresses the willingness of the attorney to accept clients desirous of enforcing such rights.

Subsequent decisions of the Supreme Court made clear that lawyer advertising in printed media such as newspapers and periodicals must be permitted, provided the advertisements were not false or misleading. Thus, in In re R.M.J., 455 U.S. 191 (1982), the Court held:

[W]hen the particular content or method of the advertising suggests that it is inherently misleading or when experience has proven that in fact such advertising is subject to abuse, the states may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the states may not place an absolute ban on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive.

Id., 455 U.S. 191. Three years later, in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the Supreme Court found unconstitutional a prohibition on newspaper advertising targeted at a particular class of litigants. Finally, in Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Court held that states could not constitutionally enforce blanket prohibitions on lawyers making direct-mail, targeted solicitations of specific prospective clients. The 1989 and 1992 amendments to Rules 7.1, 7.2 and 7.3 of the Arizona Rules of Professional Conduct were a response to those decisions and an attempt to place only those restrictions on lawyer advertising and solicitation of prospective clients that comported with their teachings.

7.1:220      False and Misleading Communications

Because the "speech" represented by lawyer advertising and client solicitations is "commercial," it is not entitled to the full panoply of constitutional protections accorded to "political" speech. Thus, it has always been clear that the states may ban lawyer advertising that is false or misleading. As the Supreme Court held in In re R.M.J., 455 U.S. 191 (1982):

[W]hen the particular content or method of the advertising suggests that it is inherently misleading or when experience has proven that in fact such advertising is subject to abuse, the states may impose appropriate restrictions. Misleading advertising may be prohibited entirely.

Id., 455 U.S. 191. See also Matter of Zang, 154 Ariz. 134, 141, 741 P.2d 267, 174 (1987).

Consistently therewith, AZ-ER 7.1 now simply says that a lawyer may "not make a false or misleading communication about the lawyer or the lawyer's services," adding the caveat that a "communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." Concerning the latter point, the Comment to the Rule explains:

Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation.

Comment, AZ-ER 7.1, 2.

Prior to the adoption in 1992 of the former detailed rules concerning lawyer advertising and its content (which have now in effect been replaced), it was held to be unethical and grounds for the imposition of discipline, under the former Code of Professional Responsibility, for a lawyer or law firm to use advertisements which conveyed the message that the lawyer and the firm had tried personal injury cases in the past and were ready and able to prepare future cases for trial and actually try them, when in fact neither the lawyer nor any other lawyer in the firm had personal injury trial experience, and the firm scrupulously avoided litigation or trial work of any kind. Matter of Zang, 154 Ariz. 134, 741 P.2d 267 (1987). The Court in that case also held that it was unethical and grounds for discipline for an attorney to claim membership in a professional society when in fact the attorney's membership had been terminated for failure to pay dues. Id. The Court's concern was that membership in professional societies "implies not only the adequacy of past training but a continuing expertise, maintained, at least in part, by active participation in professional functions and education." Id., 154 Ariz. at 147, 741 P.2d at 280.

In Arizona Ethics Opinion No. 90-09, the Committee on the Rules of Professional Conduct ("the Committee") held that an attorney may not advertise through a referral service that uses the name "Bankruptcy Attorneys Trust," if in fact no such Trust exists. On the other hand, the Committee ruled, in Arizona Ethics Opinion No. 89-10, that an attorney may permissibly advertise that credit cards are accepted for the payment of fees as long as the content of the advertisement is neither false or misleading. Similarly, in Arizona Ethics Opinion No. 89-07, the Committee noted that the use of an advertising slogan "We take the pain out of accidents" lacked informational content and was undignified, but concluded that it was neither false nor misleading and, consequently, was not unethical.

In Arizona Ethics Opinion No. 86-01, the Committee determined that a classified advertisement that (1) asked the reader if he or she had ever been issued a parking ticket; (2) stated that the ordinance under which the ticket had been issued might be unconstitutional and invalid; (3) indicated the advertising attorney's willingness and desire to challenge the ordinance; and, (4) provided the attorney's name and phone number, omitted necessary facts and violated AZ-ER 7.1. Similarly, in Arizona Ethics Opinion No. 87-18, the Committee ruled that an attorney may not state in advertisements "no recovery, no fee," or its equivalent, unless the advertisement also disclosed that the client would be responsible for paying court costs and litigation expenses, unless the client was indigent.

In Arizona Ethics Opinion No. 99-10, the Committee held that the Association of Lawyers, a national lawyer association, could ethically place its membership directory on its Internet Web site, categorized by practice areas, so long as the information is not false or misleading. The Committee suggested that, in order to avoid jurisdictional and unauthorized practice of law issues under AZ-ER 5.5, the Association might also want to list bar admissions for lawyers in the directory. The Committee also suggested that the Association might want to clarify that its practice area designations did not necessarily signify that the lawyers were certified specialists in those fields, to avoid problems with AZ-ER 7.4. Similarly, in Arizona Ethics Opinion No. 2000-08, the Committee concluded that it was permissible for a law firm to list on its letterhead, as "Of Counsel," two lawyers not admitted in Arizona whose practice would be limited to consultation in federal Social Security matters, provided the letterhead also disclosed that the two lawyers were not admitted in Arizona and the limitations on their practice.

In Arizona Ethics Opinion No. 99-14, the Committee addressed the issue of what communications a departing lawyer may properly have with clients of the lawyer's former firm. The Committee initially concluded that, where the departing lawyer had had significant personal contact with a client in connection with the provision of legal services to that client by the firm, the lawyer has a mandatory duty, under AZ-ER 1.4. to notify the client of his or her departure. The Committee noted that there might be potential legal issues associated with contacting clients while the departing lawyer was still employed by the firm, but the Committee felt resolution of those issues was outside its jurisdiction. The Committee stressed, however, that there was no ethical prohibition on the departing attorney advising clients of the impending departure while still physically present at the firm. The Committee also stressed that the content of any such communication would be subject to the requirements of AZ-ER 7.1(a), 7.3(d)(2) and 7.3(d)(3).

In Arizona Ethics Opinion No. 2001-05, the Committee held that a law firm's Internet domain name need not be identical to the firm's actual name. It pointed out, however, that a for-profit law firm should not use the ".org" suffix in its domain name, nor should it use a domain name that implies that the firm is affiliated with a particular non-profit organization or governmental entity.

In Arizona Ethics Opinion No. 02-07, the Committee concluded that it was not proper for a law firm to leave in its name the name of a partner who had been transferred to disability inactive status. The Committee distinguished the situation where a partner retires and takes inactive status. In that situation, the partner's name can remain in the firm name, because that partner need not apply for reinstatement in order to resume active practice. In the case of a name partner transferred to disability inactive status, an application for reinstatement is required.

7.1:230      Creating Unjustifiable Expectations

Former AZ-ER 7.1(a)(2) specifically provided that an advertisement or written communication concerning a lawyer or the lawyer's services will be considered false and misleading if it "is likely to create an unjustified expectation about results the lawyer can achieve or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law . . ." The Comment to new Rule AZ-ER 7.1 makes clear that the removal of this specific proscription, in favor of a simple and direct prohibition on false and misleading communications, does not signify authorization of that practice:

A communication that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. . .

Comment, AZ-ER 7.1, 3.

In Arizona Ethics Opinion No. 89-09, the Committee on the Rules of Professional Conduct held that an attorney's solicitation letter, which targeted passengers involved in automobile accidents, and stated that the recipient of the letter might be able to collect from "both drivers' insurance companies," suggested to the lay person recipient the distinct possibility of a double recovery and impermissibly created an unjustified expectation of success.

7.1:240      Comparison with Other Lawyers

Similarly, former AZ-ER 7.1(a)(3) specifically provided that an advertisement or written communication concerning a lawyer or that lawyer's services will be deemed false and misleading if it "compares the lawyer's services with any other lawyers' services, unless the comparison can be factually substantiated . . ." Again, the Comment to the new Rule makes clear that the now straightforward prohibition on false and misleading communications encompasses such unsubstantiated comparisons:

. . . Similarly, an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

Comment, AZ-ER 7.1, 3.

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of Arizona Rule

7.2:101      Model Rule Comparison

The 2003 amendments changed the title of the Rule from "Legal Service Information" to "Advertising" and changed the text, following in substance and format the corresponding Model Rule, with three Arizona-specific additions. New paragraph (d) retains the disclosure requirements of former AZ-ER 7.1(d) concerning fee advertisements. New paragraph (e) establishes specific requirements for advertising on electronic media. New paragraph (f) sets forth specific requirements that must be met when a Rule requires that a disclosure or statement be "clear and conspicuous."

AZ-ER 7.2(a), (b) and (c) are identical to MR 7.2(a), (b) and (c). MR 7.2 does not contain provisions corresponding to AZ-ER 7.2(d), (e) and (f). The Comments are substantially similar, except that the Comment to MR 7.2 does not contain the second sentence of paragraph 5, the third and last sentences of paragraph 6, and all of paragraph 8 of the Comment to AZ-ER 7.2.

7.2:102      Model Code Comparison

DR 2-101 provided that "[a] lawyer shall not . . . use . . . any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement of claim."

DR 2-101(B) provided that a lawyer "may publish or broadcast . . . the following information . . . in the geographic area or areas in which a significant part of the lawyer's clientele resides, provided that the information . . . complies with DR 2-101(A), and is presented in a dignified manner . . ." DR 2-101(B) then specified 25 categories of information that may be disseminated. DR 2-101(B) also specified that a lawyer "may publish or broadcast, subject to DR 2-103, . . . in print media . . . or television or radio . . ."

DR 2-101(C) of the Arizona Code provided that "[a]ny person desiring to expand the information authorized for disclosure in DR 2-101(B), or to provide for its dissemination through other forums may apply to the Committee on Rules of Professional Conduct of the State Bar of Arizona. . . . The relief granted in response to any such application shall be promulgated as an amendment to DR 2-101(B), universally applicable to all lawyers."

DR 2-101(D) provided that a lawyer "shall not compensate or give anything of value to a person or organization to recommend or secure his employment . . . except that he may pay the usual and reasonable fees or dues charged by any of the [legal aid and other legal services] organizations listed in DR 2-103(D)." DR 2-101(I) provided that a lawyer "shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item."

7.2:200   Permissible Forms of Lawyer Advertising

The permissible forms for, and content of, written communications or advertisements concerning a lawyer or a lawyer's services, are now the subject of AZ-ER 7.2, rather than AZ-ER 7.1. AZ-ER 7.2(a) merely provides that: "Subject to the requirements of ERs 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media." As the Comment explains:

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.

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 specified 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 or 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 the information that the public would regard as relevant. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But see ER 7.3(a) for the prohibition against the solicitation of a prospective client through a real-time electronic exchange that is not initiated by the prospective client.

Comment, AZ-ER 7.2, 2, 3.

In Arizona Ethics Opinion No. 96-10, the Committee on the Rules of Professional Conduct ("the Committee") held that a law firm may ethically employ, on a salaried basis, a marketing director to engage in marketing activities that would otherwise be permissible for lawyers in the firm to do directly. In Arizona Ethics Opinion No. 92-05, the Committee ruled that it was ethically proper, on the facts before it, for an attorney to be listed in a labor union's "preferred provider guide," to offer discounts, and to give seminar presentations to union members.

In Arizona Ethics Opinion No. 91-06, the Committee determined that the distribution of a vinyl wallet embossed with the name of a law firm, and intended for placement in the glove compartment of the recipient's automobile, was advertising through the "public media" under the advertising rules. On the other hand, in Arizona Ethics Opinion No. 90-04, the Committee confirmed that the requirements of the advertising rules do not apply to professional announcements, so long as their contents are not false or misleading, and provided they are sent only to other attorneys, present and former clients, personal friends or relatives, or are only published in legal journals.

In Arizona Ethics Opinion No. 90-07, the Committee ruled that a law firm may mail a brochure, a local government telephone directory, and a newsletter containing information pertinent to a selected group of newly established businesses, with a form cover letter inviting the recipient to consider hiring the law firm, provided the content of the communications complied with the requirements of the advertising rules. Finally, in Arizona Ethics Opinion No. 90-05, the Committee held that a law firm could properly distribute a newsletter to companies and individuals engaged in construction related activities, which contained articles on common legal issues encountered in the construction industry, along with summaries and analyses of relevant recent court decisions, if the content of the newsletter did not otherwise violate the provisions of the advertising rules.

In Arizona Ethics Opinion No. 2001-09, the Committee addressed an inquiry from a group of lawyers who shared an office suite but were separate firms, and proposed to secure a common phone number and hire a Spanish-speaking receptionist for communications with Spanish-speaking prospective clients. The receptionist would simply route calls to lawyers in the group depending upon practice area. The Committee found that this was in the nature of group advertising, which the Rules do not prohibit, and would not constitute an impermissible referral service.

Fee Advertisements

AZ-ER 7.2(d) imposes the following additional requirements for every advertisement or written communication or solicitation that contains information about the lawyer's fees:

(1) advertisements and written communications which indicate that the charging of a fee is contingent on outcome or that the fee will be a percentage of the recovery must also disclose (A) that the client will be liable for expenses regardless of the outcome, and (B) whether the percentage will be applied before or after expenses are deducted from the recovery;

(2) where the advertisement or written communication states a range of fees or hourly rates for services, the client must be informed in writing at the commencement of any attorney-client relationship that the total fee within the range that will be charged, or the total hours to be devoted, will vary depending upon the particular matter to be handled, and that the client is entitled without obligation to an estimate of the fee within the range that is likely to be charged;

(3) an advertisement or written communication may state fixed fees for specific routine legal services, the description of which would not be misunderstood or deceptive, but the client must be informed in writing at the commencement of any attorney-client relationship that the quoted fee is available only to clients whose matters fall within the services described and that the client is entitled without obligation to a specific estimate of the fee that is likely to be charged; and

(4) a lawyer who advertises a specific fee, range of fees or hourly rate for a particular service must honor the fee advertised for a period of at least ninety (90) days, unless the advertisement or written communication specifies a shorter period. In the case of such advertisements in the "Yellow Pages" of telephone directories, or other media not published more frequently than annually, the advertised fee or range of fees shall be honored for not less than one (1) year following publication of the advertisement.

Advertising on Electronic Media

AZ-ER 7.2(e) sets forth certain specific additional requirements that apply to advertisements on the electronic media, such as television and radio and the Internet Generally, such advertisements may contain the same information that is permitted in print media advertisements, except if a person appears in a law firm's electronic media advertisement who purports to be a lawyer, that person must in fact be a lawyer employed full-time at the advertising law firm. Similarly, if a law firm advertises a particular legal service, and a person appears as the person purporting to render the service in question, that person must be the lawyer who will actually perform the service advertised, unless the advertisement discloses that the service in question may be performed by other lawyers in the firm.

Participation in Seminars; Speaking Engagements

Participation in seminars, both those intended for lawyers and those intended for members of the general public, and accepting speaking engagements, are common, popular and frequent vehicles by which lawyers arrange to come into contact with prospective clients. In its Arizona Ethics Opinion No. 92-10, the Committee on the Rules of Professional Conduct ("the Committee"), in response to an inquiry from a member of the Public Relations Committee of the State Bar, in effect established the following guidelines, distilled from prior opinions and expanded upon, for attorneys engaging in such activities:

(1) It is proper for an attorney to participate in a legitimate seminar on a legal subject as long as the seminar is conducted in a proper manner.

(2) Seminar panelists may properly consist of attorneys or laymen or both. Those attending the seminar may properly consist of attorneys or laymen or both.

(3) An attorney may properly be paid for participating in a seminar. That compensation may properly be a portion of any fee a group charges for putting on a seminar on a legal issue, but the fee received by the attorney/speaker may not be related in any way to legal business generated for the speaker by the seminar.

(4) The seminar announcement and other related written materials may list the name of the attorney participant with a short, factual statement of that attorney's qualifications.

(5) Where an attorney or law firm is sponsoring a seminar and advertising it, the advertisement must contain the name of an attorney responsible for its content. The attorney must retain a copy or recording of the advertisement, and a record of when and where it was used, for three (3) years.

(6) The purpose of the seminar must be to inform rather than to give legal advice. It is improper for an attorney, during the seminar, to answer questions from laymen concerning their specific individual legal problems. Anyone inquiring about specific problems must be admonished to consult an attorney for legal advice.

(7) Because of problems related to the disclosure of client confidences, because of the potential for solicitation, and because of restrictions on pretrial publicity, no reference should be made to pending cases being handled by the attorney.

(8) An attorney/speaker may distribute written materials, such as newsletters and articles the attorney has written, even where the written materials are usually directed to the attorney's existing clients. There need not be a disclaimer concerning the fact that the attorney is not a certified specialist.

(9) An attorney/speaker may make business cards available to seminar attendees, but should not distribute the cards personally, as that might violate the prohibition of AZ-ER 7.3 on direct in-person solicitation.

7.2:300   Retaining Copy of Advertising Material

There is no longer a requirement that copies of advertising materials, or written communications, concerning a lawyer's services be retained for any specified period of time. Former AZ-ER 7.1(o), which imposed a three-year retention requirement, was abrogated in 2003.

7.2:400   Paying to Have Services Recommended

AZ-ER 7.2(b) [which was formerly AZ-ER 7.1(j)] provides that a lawyer may not give anything of value to a person for recommending the lawyer's services, except that the lawyer may pay the reasonable cost of advertising or written or recorded communications concerning the lawyer or the lawyer's services, may pay the usual charges of a lawyer referral service or other legal services organization, and may pay for a law practice in accordance with new AZ-ER 1.17. In Arizona Ethics Opinion No. 2002-01, the Committee on the Rules of Professional Conduct held that a lawyer may give a de minimis gift to attorneys or others who have referred clients to that attorney without violating the predecessor of this Rule. This ruling has now been codified in the Comment to this Rule, which provides: "Giving or receiving a de minimis gift that is not a quid pro quo for referring a particular client is permissible." Comment, AZ-ER 7.2, 5.

Lawyer Referral Services

As noted, AZ-ER 7.2(b)(2) provides that a lawyer may pay "the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service." A "qualified lawyer referral service" is defined in the Rule as "a lawyer referral service that has been approved by an appropriate regulatory authority . . ." AZ-ER 7.2(b)(2). As the Comment to this portion of the Rule explains:

A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists prospective clients to secure legal representation. Published and electronic group advertising and directories are not lawyer referral services, but participation in such listings is governed by ERs 7.1 and 7.4. A lawyer referral service, on the other hand, is any organization in which a person or entity receives requests for lawyer services, and allocates such requests to a particular lawyer or lawyers or that holds itself out to the public as a lawyer referral service. Such referral services are understood by laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority, such as the State Bar of Arizona, as affording adequate protections for prospective clients.

A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer's professional obligations. See ER 5.3. Legal service plans and lawyer referral services may communicate with prospective clients, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or group legal services plan would mislead prospective clients to think it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate ER 7.3.

Comment, AZ-ER 7.2, 6, 7.

In Arizona Ethics Opinion No. 2001-09, the Committee on the Rules of Professional Conduct ("the Committee") addressed an inquiry from a group of lawyers who shared an office suite, but were separate firms, and who proposed to secure a common phone number and a Spanish-speaking receptionist for communications with Spanish-speaking prospective clients. The receptionist would simply route calls to lawyers in the group depending upon their practice area. The Committee held that this arrangement would be in the nature of group advertising, which is not prohibited by the Rules, and would not constitute an impermissible referral service.

In Arizona Ethics Opinion No. 2002-03, the Committee concluded that Arizona lawyers may not ethically participate in, pay a fee to or accept clients from an Internet service that posts consumer inquiries to "pre-screened" member attorneys. The Committee's conclusion was based upon its determination that the Internet service was a "lawyer referral service," which had not been approved, using the test that a lawyer referral service is one that engages in the process of ascertaining a caller's legal needs and then matching the caller to a member having the appropriate area of expertise.

In Arizona Ethics Opinion No. 98-10, the Committee held that a lawyer may receive referrals from a nonprofit organization to whom the lawyer has made a charitable donation as long as the referrals are incidental to the charitable activity and are not in consideration for the lawyer's donations. In Arizona Ethics Opinion No. 98-03, the Committee determined that the inquiring lawyer could not participate in a marketing plan that provided the names of lawyers to individuals who specifically requested a lawyer experienced in personal injury matters, even if the plan did not screen the callers or charge a fee for the service.

In Arizona Ethics Opinion No. 96-11, the Committee ruled that a lawyer could not have legal fees paid for a client through a referring business, and that the lawyer may not be employed, part-time, by the nonlawyer referring business to provide legal services to clients of the business.

In Arizona Ethics Opinion No. 96-09, the Committee held that a law firm may properly provide promotional materials, the contents of which comply with the general advertising requirements, to businesses, along with an offer to represent employees of those businesses for a discounted fee, as long as the businesses/employers are not paid anything to recommend the lawyer's services, and the businesses/employers are not active intermediaries between the employees and the law firm or its lawyers. In Arizona Ethics Opinion No. 95-13, the Committee determined that a lawyer referral service that would connect callers to a participating lawyer based upon the caller's zip code and lawyer's area of expertise was an impermissible referral service with improper referral fees.

In Arizona Ethics Opinion No. 94-14, the Committee ruled that a lawyer may offer to donate ten percent (10%) of the lawyer's fee to a charity of a client's choosing, provided (1) the total fee charged was reasonable; (2) the attorney's independent professional judgment was not affected by the arrangement; (3) no charities were paid for referrals; and, (4) the advertisement complied with other requirements of the advertising rules. In Arizona Ethics Opinion No. 94-04, the Committee held that an attorney could ethically join a lawyer referral service where the service would derive revenues from subscription fees paid by employers and unions. In Arizona Ethics Opinion No. 92-11, the Committee determined that a lawyer could ethically acquire from a towing company client a list of the names, addresses, telephone numbers and vehicle descriptions or individuals recently involved in automobile accidents who had come into contact with the towing company, and could properly pay the towing company reasonable compensation for compiling the lists.

In Arizona Ethics Opinion No. 92-05, the Committee held that, under the facts presented, it was ethically proper for an attorney to be listed in a labor union's "preferred provider guide," to offer discounted rates, and to give seminar presentations to union members. In Arizona Ethics Opinion No. 85-08, the Committee ruled that an attorney could not participate in group advertising, in which a corporation referred potential clients within a particular zip code area to attorneys who had paid for the right to receive such referrals, because the ads did not contain the names of the individual attorneys sponsoring the advertisements.

In Arizona Ethics Opinion No. 99-12, the Committee held that a lawyer employed by an architectural firm could not provide legal services to the architectural firm's clients, where the firm paid the attorney a salary but charged its clients an hourly rate for the lawyer's services. The Committee concluded that this arrangement would constitute the impermissible sharing of fees with non-lawyers, and also have the effect of the architectural firm serving as a referral service which did not meet the standards of AZ-ER 7.1(r)(4).

Prior to the amendments to the advertising rules, the Committee had held, in Arizona Ethics Opinion No. 82-12, that an attorney could not participate in or cooperate with a private lawyer referral service that charges an annual fee, and then a periodic fixed charge for advertising and referrals, where the referrals would be made on the basis of location and area of specialty. Similarly, the Committee had ruled, in Arizona Ethics Opinion No. 82-01, that a lawyer could not properly participate in a lawyer referral plan that provided attorneys to handle personal injury cases on a contingency basis, where each attorney participating would contribute $1,500.00 to cover the costs of advertising and referrals would be made on a rotating basis. Finally, in Arizona Ethics Opinion No. 81-04, the Committee determined that an approved lawyer referral service could require participating attorneys to limit their initial consultation fees to a specific, reasonable figure. In that Opinion, however, the Committee also held that an attorney serving on the Board of Directors of an approved lawyer referral service could accept referrals from the service, provided the attorney did not use the position to improve the chances of receiving such referrals.

7.2:500   Identification of a Responsible Lawyer

AZ-ER 7.2(c) provides that: "Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer or law firm responsible for its content."

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of Arizona Rule

7.3:101      Model Rule Comparison

The 2003 amendments permit lawyers to engage in direct personal or telephonic solicitation of business from another lawyer or from a person with whom the soliciting lawyer has a close personal relationship. Paragraph (b) of the Rule was amended to prohibit any solicitation of individuals who may have a personal injury or wrongful death claim for a period of thirty (30) days after the incident giving rise to the claim.

There are differences between AZ-ER 7.3 and MR 7.3. AZ-ER 7.3(b) prohibits a lawyer from knowingly permitting a proscribed solicitation on the lawyer's behalf. This language is not contained in MR 7.3(b). In addition, the prohibition in AZ-ER 7.3(b)(3) on solicitation of persons with personal injury or wrongful death claims for thirty (30) days following the occurrence giving rise to the claim is not contained in MR 7.3. Finally, AZ-ER 7.3(c) has specific requirements concerning the format and means of dissemination of direct written, recorded or electronic solicitations not contained in the Model Rule. These differences between the two Rules are also reflected in the accompanying Comments.

7.3:102      Model Code Comparison

DR 2-104(A) provided, with certain exceptions, that "a lawyer who has given in-person unsolicited advice to a layperson that he should obtain counsel or take legal action shall not accept employment resulting from that advice . . ." The exceptions included DR 2-104(A)(1), which provided that "[a] lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client." DR 2-104(A)(2) through DR 2-104(A)(5) provided other exceptions relating, respectively, to employment resulting from public education programs, recommendation by a legal service organization, public speaking or writing and representing members of a class in class action litigation.

DR 2-101 provided that "[a] lawyer shall not . . . use . . . any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement of claim."

DR 2-101(B) provided that a lawyer "may publish or broadcast . . . the following information . . . in the geographic area or areas in which a significant part of the lawyer's clientele resides, provided that the information . . . complies with DR 2-101(A), and is presented in a dignified manner . . ." DR 2-101(B) then specified 25 categories of information that may be disseminated. DR 2-101(B) also specified that a lawyer "may publish or broadcast, subject to DR 2-103, . . . in print media . . . or television or radio . . ."

DR 2-101(C) of the Arizona Code provided that "[a]ny person desiring to expand the information authorized for disclosure in DR 2-101(B), or to provide for its dissemination through other forums may apply to the Committee on Rules of Professional Conduct of the State Bar of Arizona. . . . The relief granted in response to any such application shall be promulgated as an amendment to DR 2-101(B), universally applicable to all lawyers."

DR 2-101(D) provided that a lawyer "shall not compensate or give anything of value to a person or organization to recommend or secure his employment . . . except that he may pay the usual and reasonable fees or dues charged by any of the [legal aid and other legal services] organizations listed in DR 2-103(D)." DR 2-101(I) provided that a lawyer "shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item."

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

The Arizona Supreme Court has had a continuing concern with the dangers posed by permitting lawyers to engage in the direct solicitation of engagements from prospective clients who have a current need for legal services. In the Comment which accompanied AZ-ER 7.1, as it was originally adopted (and which contains some references outmoded by subsequent amendments), the Court observed:

There is a potential for abuse inherent in direct solicitation by a lawyer of prospective clients known to need legal services. It subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services, and may have an impaired capacity for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.

The situation is therefore fraught with the possibility of undue influence, intimidation, and over-reaching. This potential for abuse inherent in direct solicitation of prospective clients justifies its regulation, particularly since lawyer advertising permitted under ER 7.2 offers an alternative means of communicating necessary information to those who may be in need of legal services.

Advertising makes it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct personal persuasion that may overwhelm the client's judgment.

Subsequently, the Supreme Court issued its decision in Shapero v. Kentucky Bar Association, 486 U.S. 466 (1985), holding that states could not constitutionally enforce blanket prohibitions on lawyers making direct-mail, targeted solicitations of specific prospective clients. In response to that decision, the State Bar submitted for the Court's consideration amendments to then AZ-ER 7.2 and 7.3 to bring them into compliance with Shapero's holding. The Court modified those proposals, stating its concern with the need to closely regulate the forms of direct, targeted solicitations of prospective clients which Shapero, in the minds of some, had held constitutionally protected. In the Comment to the 1989 amendments to AZ-ER 7.3, the Court thus observed:

Since Shapero, the members of this court have been made aware by personal observation, communication from lawyers and legislators, and otherwise that there is now a great deal of direct-mail solicitation, particularly in cases in which serious personal injuries or death are involved. Examples that have been sent to this court indicate that many Arizona residents are being approached by direct-mail, targeted solicitation at times of personal tragedy, economic emergency, or other hardships, and when they are therefore less able to make informed, intelligent choices regarding retaining counsel.

AZ-ER 7.3(a) expressly prohibits the in-person, live telephone or real-time electronic solicitation, or knowingly permitting such solicitation, of "professional employment from a prospective client when a motive for the lawyer's doing so is the lawyer's pecuniary gain." The Rule excepts solicitations directed to another lawyer or to a person with whom the soliciting lawyer "has a family, close personal or prior professional relationship . . ." The balance of the Rule permits such direct, targeted solicitations by "written communication," but only under certain specific conditions and subject to many requirements concerning the form and content of such communications. See the discussion in Sections 7.3:300, 7.3:400 and 7.3:500, infra.

In Arizona Ethics Opinion No. 02-08, the Committee on the Rules of Professional Conduct ("the Committee") concluded that a lawyer may ethically sponsor a booth at a business exposition and engage in direct face-to-face contacts with visitors to the booth, as long as the contact was initiated by the visitor, in an atmosphere free of coercion and deception, and there was no reason to believe that visitors to the exposition would be characterized by any particular vulnerability. In so concluding, the Committee overruled its prior Arizona Ethics Opinion No. 91-04. The Committee stressed that lawyers sponsoring such booths may not approach, accost or importune members of the public in the booth's area, or use deceptive tactics to influence a decision to visit the booth.

In Arizona Ethics Opinion No. 99-14, the Committee addressed the issue of what communications a departing lawyer may properly have with clients of the lawyer's former firm. The Committee initially concluded that, where the departing lawyer had had significant personal contact with a client in connection with the provision of legal services to that client by the firm, the lawyer has a mandatory duty, under AZ-ER 1.4. to notify the client of his or her departure, and AZ-ER 7.3(a)'s prohibition on direct solicitation did not apply, even if the persons contacted were not technically clients of the departing lawyer. The Committee noted that there might be potential legal issues associated with contacting clients while the departing lawyer was still employed by the firm, but the Committee felt resolution of those issues was outside its jurisdiction. The Committee stressed, however, that there was no ethical prohibition on the departing attorney advising clients of the impending departure while still physically present at the firm. The Committee also stressed that the content of any such communication would be subject to the requirements of AZ-ER 7.1(a), 7.3(d)(2) and 7.3(d)(3).

In its Arizona Ethics Opinion No. 98-08, the Committee on the Rules of Professional Conduct ("the Committee") held that an attorney may ethically contract with a paralegal to conduct initial interviews of estate planning clients, but cautioned that (1) the attorney must supervise and control the paralegal's activities to assure that the paralegal does not engage in the unauthorized practice of law; (2) there must be no fee sharing between the attorney and the paralegal; (3) the initial interviews may only be with existing clients of the attorney; and, (4) there could be no solicitation of new business from the clients by the paralegal. In Arizona Ethics Opinion No. 90-17, the Committee determined that a lawyer for a firm that represented a worker's compensation carrier could ethically solicit professional employment from injured workers, but only in writing, and only if the lawyer reasonably believed that representation of one of those clients would not be materially limited by the lawyer's responsibilities to the carrier, and both clients consented to the dual representation.

In Arizona Ethics Opinion No. 89-09, the Committee held that an attorney could not advise recipients of a direct-mail solicitation letter that the attorney had a police report concerning the recipient's automobile accident, because the recipient may not be aware that police reports are public records, and such a statement may (1) imply that the lawyer knows more about the recipient's case than the lawyer actually does, (2) may imply that the investigating officer has referred the matter to the attorney, (2) may imply that the police department recommends the attorney, or (4) may imply that the attorney has connections with the police department. The Opinion goes on to say that targeted solicitation letters should provide clear information concerning how the recipient's name was obtained and how the attorney/author knows of the recipient's legal problem. If the targeted direct-mail solicitation letter includes a document relating to the recipient's legal problem, it should provide the complete text of the document. Finally, a solicitation letter sent to passengers in automobile accidents should not state that the recipient may be able to collect from "both drivers' insurance companies," because that suggests to the layman the distinct possibility of a double recovery and thus created an unjustifiable expectation.

In Arizona Ethics Opinion No. 90-07, the Committee ruled that it was proper for a law firm to mail a brochure, a local government telephone directory, and a newsletter containing information pertinent to a selected group of newly established businesses, with a form cover letter inviting the recipient to consider hiring the law firm, provided the communications complied with AZ-ER 7.1. In the same Opinion, the Committee indicated that it was permissible for a firm to contact trade and professional associations and social service agencies, through direct mail, to inform them that the firm's attorneys were available to speak to groups free of charge. In Arizona Ethics Opinion No. 90-05, the Committee determined that a law firm could permissibly distribute a newsletter to companies and individuals engaged in construction related industries, which contained articles on common legal issues encountered in the construction industry, together with summaries and analyses of recent relevant court decisions, if the content of the newsletter otherwise complied with the provisions of the advertising rules.

The Committee has on several occasions addressed issues concerning lawyer participation in seminars. In Arizona Ethics Opinion No. 88-07, the Committee held that an attorney may participate in a seminar even if the attorney's motive for doing so is financial rather than educational. In Arizona Ethics Opinion No. 87-23, the Committee ruled that an attorney may co-present a series of seminars with a non-lawyer financial planner dealing with financial planning, estate planning and probate issues, if the offer is extended to a general group rather than to a specific person, and there is no pressure or importuning on seminar participants to employ the attorney. Finally, in its Arizona Ethics Opinion No. 92-10, the Committee, in response to an inquiry from a member of the Public Relations Committee of the State Bar, in effect established the following guidelines, distilled from prior opinions and expanded upon, for attorneys engaging in such activities:

(1) It is proper for an attorney to participate in a legitimate seminar on a legal subject as long as the seminar is conducted in a proper manner.

(2) Seminar panelists may properly consist of attorneys or laymen or both. Those attending the seminar may properly consist of attorneys or laymen or both.

(3) An attorney may properly be paid for participating in a seminar. That compensation may properly be a portion of any fee a group charges for putting on a seminar on a legal issue, but the fee received by the attorney/speaker may not be related in any way to legal business generated for the speaker by the seminar.

(4) The seminar announcement and other related written materials may list the name of the attorney participant with a short, factual statement of that attorney's qualifications.

(5) Where an attorney or law firm is sponsoring a seminar and advertising it, the advertisement must contain the name of an attorney responsible for its content. The attorney must retain a copy or recording of the advertisement, and a record of when and where it was used, for three (3) years.

(6) The purpose of the seminar must be to inform rather than to give legal advice. It is improper for an attorney, during the seminar, to answer questions from laymen concerning their specific individual legal problems. Anyone inquiring about specific problems must be admonished to consult an attorney for legal advice.

(7) Because of problems related to the disclosure of client confidences, because of the potential for solicitation, and because of restrictions on pretrial publicity, no reference should be made to pending cases being handled by the attorney.

(8) An attorney/speaker may distribute written materials, such as newsletters and articles the attorney has written, even where the written materials are usually directed to the attorney's existing clients. There need not be a disclaimer concerning the fact that the attorney is not a certified specialist.

(9) An attorney/speaker may make business cards available to seminar attendees, but should not distribute the cards personally, as that might violate the prohibition of AZ-ER 7.3 on direct in-person solicitation.

In Arizona Ethics Opinion No. 87-07, the Committee held that an attorney may solicit employment from a prospective client who is indigent, provided the attorney does not have pecuniary gain as a motive for doing so.

Solicitation of Personal Injury or Wrongful Death Cases

The 2003 amendments to this Rule added a flat prohibition on solicitation, or knowingly permitting solicitation, which "relates to a personal injury or wrongful death and is made within thirty (30) days of such occurrence."

7.3:210      Solicitation by Non-Profit Public Interest Organization

New AZ-ER 7.3 does not specifically address the issue of solicitation or prospective clients by non-profit public interest organizations. Both AZ-ER 7.3(a) and (b), however, prohibit certain forms of direct solicitation of clients by lawyers, but also prohibit the lawyer from knowingly permitting another to engage in such solicitations on the lawyer's behalf.

In Arizona Ethics Opinion No. 98-10, the Committee on the Rules of Professional Conduct ("the Committee") held that a lawyer may receive referrals from a nonprofit organization to whom the lawyer has made a charitable donation as long as the referrals are incidental to the charitable activity and are not in consideration for the lawyer's donations.

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

In Arizona Ethics Opinion No. 91-17, the Committee determined that an attorney terminating an association with a firm may send letter to clients with whom the attorney worked while at the firm, notifying them of the departure, and stating that they are free to choose to whether to remain with the firm or to retain the departed attorney.

7.3:300   Regulation of Written and Recorded Solicitation

AZ-ER 7.3(c) permits lawyers to initiate written communications, but not personal or telephone contact, with persons known, or believed likely, to need legal services in a particular matter and for the purpose of obtaining professional employment, but subject to quite stringent requirements. Initially, the envelope containing the written communication, and the beginning and end of the written communication itself, must contain, in all capital letters, and in a type size at least double the largest type size used in the body of the communication, the words "Advertising Material." A copy of the communication/solicitation must be forwarded, at the time it is disseminated, to both the Clerk of the Arizona Supreme Court and the State Bar of Arizona. AZ-ER 7.3(c)(1).

AZ-ER 7.3(b) provides that a lawyer may not send, or cause to be sent, such a written communication/solicitation, on the lawyer's behalf or on behalf of the lawyer's firm, a partner, associate or any other lawyer affiliated with the firm, if:

(1) it has been made known to the lawyer that the person does not want to receive such communications from the lawyer;

(2) the communication involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence;

(3) the solicitation relates to a personal injury or wrongful death and is sent within thirty (30) days of the occurrence.

Written communications sent to prospective clients may only be sent by regular United States mail, and not by registered mail or any other form of restricted delivery. AZ-ER 7.3(c)(2). If a contract for representation is mailed with the written communication/solicitation, the contract must be marked "sample" in red ink, and must contain the words "do not sign" on the client signature line. AZ-ER 7.3(c)(4).

The lawyer initiating the communication/solicitation is to bear the burden of proof regarding the truthfulness of all facts contained in the communication, and must, upon request of the State Bar, disclose (1) how the identity and specific legal need of the potential recipient were discovered; and, (2) how the identity and knowledge of the specific need of the potential recipient were verified by the lawyer. AZ-ER 7.3(c)(4).

In Arizona Ethics Opinion No. 95-12, the Committee on the Rules of Professional Conduct ("the Committee") advised the inquiring attorney that there is no specific number of days which an attorney must delay before sending a solicitation letter to a decedent's relative, but discussed several factors the lawyer should consider in determining whether the recipient is likely to exercise reasonable judgment in employing a lawyer. In Advertising Opinion No. 01-94, the former Advertising Committee confirmed that, in order to be ethically proper, a direct mail solicitation letter which includes a sample attorney contract must indicate who will perform the work and the location of their offices, as well as clearly marking the sample contract in the manner specified in AZ-ER 7.3(g).

In Arizona Ethics Opinion No. 90-17, the Committee determined that a lawyer in a firm representing a worker's compensation carrier may ethically solicit professional employment from the injured worker in writing, if the lawyer reasonably believes that the representation of one of those clients will not be materially limited by the lawyer's representation of the other, and both clients give their informed consent.

In Arizona Ethics Opinion No. 89-09, the Committee held that an attorney could not advise recipients of a direct-mail solicitation letter that the attorney had a police report concerning the recipient's automobile accident, because the recipient may not be aware that police reports are public records, and such a statement may (1) imply that the lawyer knows more about the recipient's case than the lawyer actually does, (2) may imply that the investigating officer has referred the matter to the attorney, (2) may imply that the police department recommends the attorney, or (4) may imply that the attorney has connections with the police department. The Opinion goes on to say that targeted solicitation letters should provide clear information concerning how the recipient's name was obtained and how the attorney/author knows of the recipient's legal problem. If the targeted direct-mail solicitation letter includes a document relating to the recipient's legal problem, it should provide the complete text of the document. Finally, a solicitation letter sent to passengers in automobile accidents should not state that the recipient may be able to collect from "both drivers' insurance companies," because that suggests to the layman the distinct possibility of a double recovery and thus created an unjustifiable expectation.

7.3:400   Disclaimers for Written and Recorded Solicitation

See discussion in Section 7.3:300, supra. This subject is actually addressed by AZ-ER 7.2, rather than AZ-ER 7.3. AZ-ER 7.2(f) provides that: "Communications required by paragraphs (c) and (d) shall be clear and conspicuous. To be "clear and conspicuous" a communication must be of such color, contrast, location, duration, cadence, and audibility that an ordinary person can readily notice, read, hear, and understand it. As the Comment explains:

Paragraph (f) requires communications under paragraphs (c) and (d) to be clear and conspicuous. In addition to the requirements of paragraph (f), a statement may not contradict or be inconsistent with any other information with which it is presented. If a statement modifies, explains, or clarifies other information with which it is presented, it must be presented in proximity to the information it modifies, in a manner that is readily noticeable, readable, and understandable, and it must not be obscured in any manner.

Comment, AZ-ER 7.2, 8.

7.3:500   Solicitation by Prepaid and Group Legal Services Plans

AZ-ER 7.3(d) provides that, notwithstanding the general prohibitions of the Rule, "a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. The Comment explains the limited scope of this exception:

Paragraph (d) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with ERs 7.1, 7.2 and 7.3(b). See ER 8.4(a).

Comment, AZ-ER 7.3, 8.

In Arizona Ethics Opinion No. 98-10, the Committee on the Rules of Professional Conduct ("the Committee") ruled that a lawyer may receive referrals from a non-profit organization to whom the lawyer has made a charitable donation as long as the referrals are incidental to the charitable activity and not consideration for the lawyer's donations. In Arizona Ethics Opinion No. 85-03, dealing with the former Code of Professional Conduct, the Committee held that an attorney may participate in a law plan that operates as a for-profit business, but may not participate in a law plan where prospective clients were obligated to take one of the attorneys suggested by the plan. In Arizona Ethics Opinion No. 82-16, the Committee ruled that an attorney may be employed by a School Board Association to provide legal services to its members at no charge other than the dues paid to the Association.

In Arizona Ethics Opinion No. 81-34, the Committee determined that an attorney could not properly contract with a for-profit financial services corporation to provide that corporation's customers with discount legal services according to the corporation's plan for delivery of legal services. In Arizona Ethics Opinion No. 81-04, the Committee ruled that an attorney who serves on the Board of Directors of an approved lawyer referral service may accept referrals from the service, provided the attorney did not use the attorney's position on the Board to improve the chances of receiving referrals.

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of Arizona Rule

7.4:101      Model Rule Comparison

No changes were made to this Rule or the accompanying Comment by the 2003 amendments to the Arizona Rule of Professional Conduct.

AZ-ER 7.4(a) and (b) are similar to MR 7.4(a) and (b). AZ-ER 7.4(c), with one significant difference. AZ-ER 7.4 limits a lawyer's use of the term "specialist"; MR 7.4's restrictions are on the use of the term "certified specialist." AZ-ER 7.4(c), which provides that a lawyer may not state or imply that the lawyer is a specialist in any area of the law unless the lawyer has been certified by the Arizona Board of Legal Specialization, or similar national entity with equivalent certification standards, is phrased quite differently than the alternative provision suggested in MR 7.4(c) for jurisdictions which have a procedure for granting specialty certifications.

7.4:102      Model Code Comparison

DR 2-105(A) of the former Code of Professional Responsibility provided that "[a] lawyer shall not hold himself out publicly as a specialist, as practicing in certain areas of law or as limiting his practice . . . except as follows:

"(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation 'Patents,' 'Patent Attorney,' 'Patent Lawyer,' or 'Registered Patent Attorney' or any combination of those terms, on his letterhead and office sign. A lawyer engaged in the trademark practice may use the designation 'Trademarks,' 'Trademark Attorney,' or 'Trademark Lawyer,' or any combination of those terms, on his letterhead and office sign, and a lawyer engaged in the admiralty practice may use the designation 'Admiralty,' 'Proctor in Admiralty,' or 'Admiralty Lawyer,' or any combination of those terms on his letterhead and office sign.

(2) A lawyer who publicly discloses fields of law in which the lawyer . . . practices or states that his practice is limited to one or more fields of law shall do so by using designations and definitions authorized and approved by the Arizona Supreme Court . . .

(3) A lawyer specializing in a particular field of law or law practice may hold himself out as such specialist but only in accordance with the rules as prescribed by the Arizona Board of Legal Specialization."

EC 2-14 stated that "[I]n the absence of state controls to insure the existence of special competence, a lawyer should not be permitted to hold himself out as a specialist, other than in the fields of admiralty, trademark, and patent law where a holding out as a specialist historically has been permitted."

7.4:200   Regulation of Claims of Certification and Specialization

AZ-ER 7.4 provides that 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 the lawyer is a specialist in any field of law, unless one of the following three exceptions applies:

(a) the lawyer has been admitted to patent practice before the United States Patent and Trademark Office, in which event the lawyer may use the designation "patent attorney" or a substantially similar designation;

(b) the lawyer has been admitted to patent practice before the United States Patent and Trademark Office, in which event the lawyer may use the designation "patent attorney" or a substantially similar designation;

(c) the lawyer has been certified as a specialist in a particular field of law by the Arizona Board of Legal Specialization, or is certified by a national entity which has standards for certification substantially the same as those established by the Board, and which has been recognized by the Board as having such substantially similar standards.

The rationale for these requirements and restrictions is explained in the Comment to the Rule:

This rule permits a lawyer to indicate areas of practice in communications about the lawyer's services; for example, in a telephone directory or other advertising. If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted to so indicate. However, stating that the lawyer is a "specialist" in a particular field is not permitted. These terms have acquired a secondary meaning implying formal recognition as a specialist. Hence, use of these terms may be misleading unless the lawyer is certified or recognized in accordance with procedures in the state where the lawyer is licensed to practice.

Recognition of specialization in patent matters is a matter of long-established policy of the Patent and Trademark Office. Designation of admiralty practice has a long historical tradition associated with maritime commerce and the federal courts.

Comment, AZ-ER 7.4, 1, 2.

The Arizona Board of Legal Specialization referred to in AZ-ER 7.4(c) is a Committee of the State Bar of Arizona which recognizes attorneys in various areas of law who, because of experience, training, and examination, are awarded certificates of special competence. Currently, the Board will issue such certificates to qualified applicants in the following areas of law: Bankruptcy, Criminal Law, Family Law, Estates and Trusts, Personal Injury and Wrongful Death Litigation, Real Estate, Taxation, and Workers' Compensation. Each area where a specialty certification is available has an Advisory Commission which oversees the administration of its program and the members. Lawyers who have received a specialty certification are subject to special continuing legal education requirements in the field in which they have been certified.

In Arizona Ethics Opinion No. 2000-01, the Committee on the Rules of Professional Conduct ("the Committee") held that the terms "specialist" and "specializes" have acquired a secondary meaning within the profession and, accordingly, a law firm could not advertise that it "specializes" in a certain area of law where no member of the firm was certified as a specialist in that field by the State Bar Board of Legal Specialization. If a member of the firm was certified as a specialist by the Board, then firm advertising must identify that lawyer's name and not state that the firm itself "specializes" in any particular field of law.

In Arizona Ethics Opinion No. 99-10, the Committee held that the Association of Lawyers, a national lawyer association, could ethically place its membership directory on its Internet Web site, categorized by practice areas, so long as the information is not false or misleading. The Committee suggested that, in order to avoid jurisdictional and unauthorized practice of law issues under AZ-ER 5.5, the Association might also want to list bar admissions for lawyers in the directory. The Committee also suggested that the Association might want to clarify that its practice area designations did not necessarily signify that the lawyers were certified specialists in those fields, to avoid problems with AZ-ER 7.4.

In Arizona Ethics Opinion No. 2001-05, the Committee held that a law firm's Internet domain name need not be identical to the firm's actual name. It pointed out, however, that a for-profit law firm should not use the ".org" suffix in its domain name, nor should it use a domain name that implies that the firm is affiliated with a particular non-profit organization or governmental entity.

In Arizona Ethics Opinion No. 90-09, the Committee held that an attorney could not advertise through a referral service called "Bankruptcy Attorneys Trust," as that might lead members of the public to believe they were being referred to attorneys who were certified specialists in bankruptcy law. In Arizona Ethics Opinion No. 87-11, the Committee determined that an attorney's letterhead could not properly contain the inscription "Commercial Law and Litigation Specialty," because these practice areas were not recognized as ones where specialty certifications were available by the Board of Legal Specialization. In Arizona Ethics Opinion No. 87-04, the Committee ruled that, when an attorney associated with a new attorney, the announcement of the association may include the fact that the new associate has a background in a non-legal field.

In Arizona Ethics Opinion No. 92-10, the Committee on the Rules of Professional Conduct ("the Committee") held, with respect to attorneys participating in the State Bar's Speakers' Bureau, that the participating attorney's or the Bureau's implicit representation that the attorney is qualified to speak on a particular area of law does not, in and of itself, carry with it an implication that the attorney is a certified specialist in that area. The Committee cautioned, however, that the Bureau and participating attorneys must refrain from referring to attorney speakers as "specialists" or as those who "specialize" in a particular area. The Committee advised that the Bureau should employ statements such as "practice limited to" a particular area, or "emphasis on" a particular area, in referring to or identifying participating speakers.

Prior to the adoption of this Rule, it was held to be unethical and grounds for the imposition of discipline, under the former Code of Professional Responsibility, for a lawyer or law firm to use advertisements which conveyed the message that the lawyer and the firm had tried personal injury cases in the past and were ready and able to prepare future cases for trial and actually try them, when in fact neither the lawyer nor any other lawyer in the firm had personal injury trial experience, and the firm scrupulously avoided litigation or trial work of any kind. Matter of Zang, 154 Ariz. 134, 741 P.2d 267 (1987). The Court in that case also held that it was unethical and grounds for discipline for an attorney to claim membership in a professional society when in fact the attorney's membership had been terminated for failure to pay dues. Id. The Court's concern was that membership in professional societies "implies not only the adequacy of past training but a continuing expertise, maintained, at least in part, by active participation in professional functions and education." Id., 154 Ariz. at 147, 741 P.2d at 280.

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of Arizona Rule

7.5:101      Model Rule Comparison

The substance of this Rule was not changed by the 2003 amendments to the Arizona Rules of Professional Conduct.

AZ-ER 7.5(a), which deals with firm names and letterheads, contains a flat prohibition on a lawyer in private practice using a "trade name." MR 7.5(a) permits lawyers in private practice to use a "trade name," if "it does not imply a connection with a government agency or with a public or charitable service organization . . ." AZ-ER 7.5(b), (c) and (d) are identical to MR 7.5(b), (c) and (d).

7.5:102      Model Code Comparison

DR 2-102(A) of the former Code of Professional Conduct provided that "[a] lawyer . . . shall not use . . . professional cards, . . . letterheads . . . or similar professional notices or devices except . . . if they are in dignified form . . . and [are limited to] information permitted under DR 2-105 . . ." DR 2-102(B) provided that "[a] lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that . . . a firm may use as . . . its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession."

DR-2-102(D) of the former Code of Professional Responsibility provided that "[a] partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction."

DR 2-102(B) of the former Code of Professional Responsibility provided that "[a] lawyer who assumes a judicial, legislative, or public executive office shall not permit his name to remain in the name of a law firm . . . during any significant period in which he is not actively and regularly practicing law as a member of the firm . . ."

DR 2-102(C) of the former Code of Professional Responsibility is substantially identical to AZ-ER 7.5(d).

7.5:200   Firm Names and Trade Names

AZ-ER 7.5(a) contains a flat prohibition on the use of a "trade name" by a lawyer in private practice. As the Comment to the Rule explains:

A firm may be designated by the names of all or some of its members, or by the names of deceased members where there has been a continuing succession in the firm's identity. Trade names may not be used. A lawyer or law firm may use a distinctive website address that complies with ER 7.1.

Comment, AZ-ER 7.5, 1.

In Arizona Ethics Opinion No. 97-08, the Committee on the Rules of Professional Conduct held that a lawyer who was also an accountant could properly list both professional titles on the lawyer's legal stationery, but (1) the legal and accounting businesses must be maintained separately for financial and advertising purposes, even though they occupied the same physical location; (2) the accounting business could not be used as a "feeder" for legal work for the law firm; (3) clients referred by the lawyer to the accounting business were to be advised of the lawyer's interest in the accounting firm and that the attorney-client privilege would not extend to the accounting work performed for the client; (4) appropriate safeguards had to be put in place and maintained to assure against breaches of confidentiality and conflicts of interest for the law practice; and, (5) the lawyer could not indicate membership in the legal profession in advertisements for the accounting business unless such advertisements complied with the provisions of the Arizona Rules of Professional Conduct dealing with advertising. In Arizona Ethics Opinion No. 88-05, the Committee similarly ruled that an attorney who was also a licensed real estate broker was required to omit any reference to his status as an attorney in letters soliciting real estate brokerage business.

In Arizona Ethics Opinion No. 02-07, the Committee concluded that a law firm must remove from the firm's name the name of a partner who had been transferred to disability inactive status by the Supreme Court. The Committee distinguished the situation where a partner retires and takes inactive status. In that situation, the partner's name can remain in the firm name, because that partner need not apply for reinstatement in order to resume active status. In the case of a name partner transferred to disability inactive status, an application for reinstatement is required.

In Arizona Ethics Opinion No. 2001-05, the Committee held that a law firm's Internet domain name need not be identical to the firm's actual name. It pointed out, however, that a for-profit law firm should not use the ".org" suffix in its domain name, nor should it use a domain name that implies that the firm is affiliated with a particular non-profit organization or governmental entity.

In Arizona Ethics Opinion No. 2000-08, the Committee held that it was proper for a firm to list on its letterhead, as "Of Counsel," two lawyers not admitted in Arizona whose practice would be limited to consultation on federal Social Security matters, provided the letterhead disclosed that the lawyers in question were not admitted in Arizona and the limitations on their practice.

In Arizona Ethics Opinion No. 91-11, the Committee held that it was proper to retain the name of a retired partner in the name of a law firm so long as there was a continuing line of succession in the firm's identity. The retired partner's name must be deleted, however, from the firm's listing of individual attorneys in the firm, or there must be some indication of the partner's retired status. A semi-retired partner could be retained in a firm's listing of individual attorneys in the firm, so long as the partner retained financial responsibility to third parties. If that attorney's financial responsibility to clients changed, however, then the attorney must be designated as "Of Counsel" or some similar designation. Under the former Code of Professional Responsibility, the Committee had determined, in Arizona Ethics Opinion No. 80-03, that it was proper to retain a deceased partner's name in a firm name, even though none of the other partners whose names were included in the name of the firm had ever practiced with the deceased partner.

In Arizona Ethics Opinion No. 91-10, the Committee held that a firm could not use the name "ABCD Law Center" as the firm name, as that would be a trade name, even though A, B, C and D represented the initials of some of the members of the firm. Similarly, in Arizona Ethics Opinion No. 90-01, the Committee concluded that a sole practitioner could not use the firm name "X and Associates," even though associates might be employed at a later date. In Arizona Ethics Opinion No. 90-03, the Committee concluded that non-legal personnel could be listed on lawyers' and law firms' letterheads, provided that their non-lawyer status was clearly indicated.

In Arizona Ethics Opinion No. 87-11, the Committee determined that an attorney's letterhead could not properly contain the inscription "Commercial Law and Litigation Specialty," as the Board of Legal Specialization had not recognized those practice areas as specialties.

Opinions issued under the former Code of Professional Responsibility are generally consistent with the foregoing. In Arizona Ethics Opinion No. 83-20, the Committee determined that a firm which had contracted with an insurance company to provide prepaid legal services to its insureds could not mail a newsletter to those insureds which referred to the law firm by a trade name. Similarly, in Arizona Ethics Opinion No. 83-10, the Committee ruled that a joint venture of three attorneys could not practice under the name "Arizona Appellate Attorneys."

In Arizona Ethics Opinion No. 81-21, the Committee ruled that a firm headquartered outside Arizona, but with a partner who was licensed in Arizona, could use its regular firm name in Arizona, provided that all the partners' names, and an identification of the jurisdictions where they were licensed, were set forth on the firm's letterhead. On the other hand, in Arizona Ethics Opinion No. 81-08, the Committee held that a firm could not list on its letterhead or other materials the name of an associate who was not admitted to practice in Arizona. Finally, in Arizona Ethics Opinion No. 81-02, the Committee determined that a former partner who has withdrawn from a firm to conduct a separate practice could be listed as "Of Counsel" on the former firm's letterhead.

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

AZ-ER 7.5(b) provides that a law firm which has offices in more than one jurisdiction can properly use the same name in each of those jurisdictions, but any identification of the lawyers in an office of the firm must indicate the jurisdictional limitations for those lawyers in the office who are not licensed to practice in the jurisdiction where the office is located. Obviously, this provision applies to firms headquartered elsewhere who open Arizona offices, but it cannot permit Arizona-based firms which open offices in other jurisdictions to ignore inconsistent limitations that may be imposed by those other jurisdictions.

In Arizona Ethics Opinion No. 96-08, the Committee on the Rules of Professional Conduct held that an Arizona attorney may be hired as an associate to manage the Arizona office of a firm headquartered elsewhere so long as (1) the associate has a bona fide relationship with the firm; (2) the Arizona attorney is fully responsible for the Arizona office, including the supervision of partners in Arizona not yet admitted to practice in Arizona; and, (3) the firm must clearly indicate on its letterhead, and in all other communications, where each of the attorneys in the office is licensed to practice and that the Arizona-licensed associate is the manager for the Arizona office. In Arizona Ethics Opinion No. 85-09, the Committee determined that an affiliation of Arizona and out-of-state attorneys for the purpose of advertising was permissible, so long as the advertisements were not false and misleading and clearly indicated the jurisdictional limitations of the out-of-state attorneys involved.

Other Opinions of the Committee on this and related subjects were issued under the former Code of Professional Responsibility. In Arizona Ethics Opinion No. 84-07, the Committee ruled that an attorney licensed to practice law in another state and before the United States Supreme Court, but not in Arizona, could not disseminate an announcement containing the attorney's name, followed by "Attorney-at-Law and Former Administrative Law Judge; Practice Limited Exclusively To . . ." In Arizona Ethics Opinion No. 82-21, the Committee determined that an Arizona attorney, identified as "B," could not former a partnership with out-of-state attorneys "A" and "C" and use a letterhead identifying the name of the firm as "The Law Offices of A and B," with a listing of the offices of the firm in the three states involved, as that would imply that attorney "A" was licensed to practice in Arizona.

In Arizona Ethics Opinion No. 81-21, the Committee held that attorneys admitted to practice in Arizona could practice in the form of a professional corporation, and could form partnerships with attorneys admitted to practice law in other jurisdictions. The Committee also held, however, that an out-of-state attorney not admitted to practice in Arizona could not be a stockholder in a professional corporation practicing law in Arizona. The Committee also indicated that an out-of-state firm with a partner licensed in Arizona could use its regular name on its Arizona letterhead, provided that the letterhead listed all the partners' names and the jurisdictions where they were licensed to practice. (In that same Opinion, the Committee also held that an out-of-state firm wishing to establish an Arizona office could not use the firm's regular name in Arizona if the only attorney with the firm licensed to practice in Arizona was an associate, but that may have been superseded by Arizona Ethics Opinion No. 96-08, discussed supra.)

In Arizona Ethics Opinion No. 80-08, the Committee again indicated that an Arizona attorney could enter into a partnership with attorneys admitted in other jurisdictions, but cautioned that the Arizona attorney could not delegate any control over the legal affairs of Arizona clients to the other partners.

7.5:400   Use of the Name of a Public Official

AZ-ER 7.5(c) provides that a law firm may not use in its name, or in communications on the firm's behalf, the name of a lawyer holding public office, during any substantial period in which the lawyer in question is not regularly and actively practicing with the firm.

In Arizona Ethics Opinion No. 87-01, the Committee on the Rules of Professional Conduct determined that a law firm may indicate on its letterhead that an attorney who has become "Of Counsel" to the firm is a retired Judge of the Superior Court.

7.5:500   Misleading Designation as Partnership, etc.

AZ-ER 7.5(d) provides that lawyers may not either state or imply that they practice in a partnership or other organization unless that is in fact the case. As the Comment to this aspect of the Rule explains:

. . . lawyers sharing office facilities, but who are not in fact partners, may not denominate themselves as, for example, "Smith and Jones," for that title suggests partnership in the practice of law.

Comment, AZ-ER 7.5, 2.

In Arizona Ethics Opinion No. 97-01, the Committee on the Rules of Professional Conduct ("the Committee") determined that lawyers who were employed full-time as salaried in-house lawyers for an insurance company should not hold themselves out as a separate law firm under one or more of their surnames, because that would misrepresent their affiliation with the insurance company and violate AZ-ER 7.5, as well as presenting other ethical problems. In Arizona Ethics Opinion No. 90-01, the Committee held that attorney "X," a sole practitioner, could not use the firm name "X and Associates," even though the attorney might hire associates at a later point in time. On the other hand, the Committee concluded, in Arizona Ethics Opinion No. 87-24, that one law firm may be listed as "Of Counsel" to another firm on the latter firm's letterhead and other communications, but that usage must be qualified to express the true relationship between the firms.

In Arizona Ethics Opinion No. 85-08, the Committee ruled that an attorney could not properly participate in group advertising, in which potential clients within a particular zip code area were referred to attorneys who had paid for the right to receive those referrals. The Committee reasoned that either the advertisements did not contain the names of the individual attorneys sponsoring them, or, if names and affiliations were indicated, that implied that a relationship existed between the attorneys that was not the case, in violation of AZ-ER 7.5(d).

Opinions issued by the Committee under the former Code of Professional Responsibility reached consistent conclusions. In Arizona Ethics Opinion No. 83-10, the Committee ruled that a joint venture consisting of three attorneys (X, Y and Z) could not practice under the name "X, Y and Z," as that name implied the existence of a partnership between them. On the other hand, in Arizona Ethics Opinion No. 83-01, the Committee held that an agreement between sole practitioners to handle each other's cases in the event of an emergency, sickness or vacation did not violate the prohibition on attorneys holding themselves out as a partnership when such was not the case.