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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Louisiana Legal Ethics

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 7.1
Background References: ABA Model Rule 7.1, Other Jurisdictions
Commentary:

7.1:101      Model Rule Comparison

LRPC 7.1(a) is similar in some respects to MR 7.1. Both LRPC 7.1(a) and MR 7.1 prevent lawyers from making false or misleading statements about their services. LRPC 7.1(a) also prevents a lawyer from making deceptive statements about himself, his services or the services provided by his firm and prevents a lawyer from permitting these statements to be made. The Model Rule has no counterpart to this provision. LRPC 7.1(a)(i) through (viii) lists examples of how a communication could violate this Rule, as opposed to MR 7.1, which sets forth a definitive list of the communications which violate the Rule.

LRPC 7.1(a)(i) provides that communications containing misrepresented or missing facts which make the statement misleading violate this Rule. MR 7.1(a) provides that such statements violate the Rule only when they are “materially misleading.” LRPC 7.1(a)(ii) provides that it is a violation of the Rule to state or imply that the outcome of any legal matter will not be governed by the facts or merits. Similarly, MR 7.1(b) prevents statements which are “likely to create an unjustified expectation about results the lawyer can achieve” or which imply that the lawyer can use means that violate the Rules of Professional Conduct. LRPC 7.1(a)(iii), (iv), (vi), (vii) and (viii) have no counterpart in the Model Rules. LRPC 7.1(a)(v) and MR 7.1(c) prohibit statements which compare one lawyer’s services with the services of another unless they can be “factually substantiated.” LRPC 7.1(a)(v) also prohibits statements which compare a “law firm’s services” with another lawyer’s services. The Model Rules have no counterpart. LRPC 7.1(b) and (c) also have no counterpart in the Model Rules.

7.1:102      Model Code Comparison

LRPC 7.1(a) prevents a lawyer from making “false, misleading or deceptive” communications about himself, his services or the services of his firm. DR 2-101(A) similarly prevents a lawyer from using or participating in any “public communication” which contains “false, fraudulent, misleading, deceptive, self-laudatory or unfair” statements. While DR 2-101(B)(1) through (25) proceed to list the information that may be communicated in accordance with the Disciplinary Rule, LRPC 7.1(a)(i) through (viii) lists the types of information which, when communicated, violate the Rule. Nevertheless, EC 2-9 lists some of the same information listed in LRPC 7.1(a)(i) through (viii) as examples of information that would be misleading.

DR 9-101(C) specifically provides, like LRPC 7.1(a)(iii), that a lawyer may not state or imply that “he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.” LRPC 7.1(a)(viii)(A) requires communications that state “no fee will be charged in the absence of recovery shall disclose that the client will be liable for certain expenses in addition to the fee, if such is the case.” The Model Code does not address the instances in which a fee is not charged. Paragraph (a)(viii)(B) provides that a lawyer shall honor an advertised fee for “at least ninety (90) days from the date it was last advertised; provided that for advertisements in print media published annually, the advertised fee shall be honored for a period not less than one year following initial publication.” DR 2-101(F) and (G) provide various time periods for which advertised fees must be honored depending upon the type of publication in which it is published.

LRPC 7.1(b) provides that communications shall be considered in their entirety to determine whether they violate this Rule. The Model Code has no counterpart. LRPC 7.1(c) prevents a lawyer from accepting referrals from persons whom he knows have engaged in communications that would violate this Rule. Likewise, DR 2-103(E) also prohibits a lawyer from accepting employment when he “knows or it is obvious that the person who seeks his services does so as a result of conduct prohibited under this Disciplinary Rule.”

7.1:200   Lawyer Advertising--In General

Primary Louisiana References: LA Rule 7.1
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

This section has not yet been completed.

7.1:210      Prior Law and the Commercial Speech Doctrine

This section has not yet been completed.

7.1:220      False and Misleading Communications

This section has not yet been completed.

7.1:230      Creating Unjustifiable Expectations

This section has not yet been completed.

7.1:240      Comparison with Other Lawyers

This section has not yet been completed.

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 7.2
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

7.2:101      Model Rule Comparison

LRPC 7.2(b) prevents solicitation by written or recorded communications unless it complies with the requirements set out in the subsequent sections. The substance of this rule is treated in MR 7.2 and 7.3. LRPC 7.2(b)(i) requires a copy of written or recorded communications to be kept for at least 3 (three) years after its dissemination. MR 7.2(b) requires that these records be kept only 2 (two) years. LRPC 7.2(b)(ii) requires that the communication state the name of at least “one member in good standing of the Association responsible for its content.” MR 7.2(d) also requires the name “of at least one lawyer responsible for its content.”

LRPC 7.2(b)(iii)(A) prohibits written communications which look like legal documents and prevents any restricted form of delivery of such documents. The Model Rules have no such provision. LRPC 7.2(b)(iii)(B) requires that the word “Advertisement” appear on each page and on the envelope of a written communication. MR 7.3(c) requires only that the word “Advertising Material” appear on the outside of the envelope. Although LRPC 7.2(b)(iii)(c) imposes a waiting period before communicating with prospective clients in wrongful death and personal injury cases, the Model Rules have no counterpart. LRPC 7.2(b)(iv) requires that recorded communications be identified as advertisements at the beginning, end and on any accompanying envelope. MR 7.3(c) provides the same substantive rule.

LRPC 7.2(b)(v) requires the lawyer to reveal sources of information prompting communication about a specific occurrence. The Model Rules have no counterpart. LRPC 7.2(c) prohibits even permissible solicitation when certain criteria are present. MR 7.3(b) prevents solicitation under similar circumstances. LRPC 7.2(c) is broader, however, preventing solicitation which involves “fraud, overreaching, intimidation or undue influence.” MR 7.3(b) does not specifically include this type of behavior in its restriction, although it includes the Louisiana Rule’s prohibition of solicitation which involves coercion, duress, and harassment. LRPC 7.2(d) limits the circumstances in which a lawyer may pay someone for recommending his services. This Rule permits a lawyer to pay “reasonable and customary costs” of permissible advertisements and communications. MR 7.2(c) also prevents a lawyer from giving anything of value to persons who recommend their services but, like the Louisiana Rule, allows lawyers to pay “reasonable costs” of permissible advertisements and communications.

MR 7.2(c) also allows lawyers to pay charges for not-for-profit referral services or service organizations. MR 7.2(a) sets forth a blanket provision which allows lawyers to advertise through public media. Louisiana has no explicit counterpart.

7.2:102      Model Code Comparison

LRPC 7.2(b) prevents a lawyer from initiating a written or recorded communication with a person known to need legal services when there is no familial or prior professional relationship unless the communication complies with certain requirements. DR 2-103(A), which prevents a lawyer from making an unsolicited recommendation to employ himself or any of his associates, is not specific as to the form of solicitations that are regulated. Unlike LRPC 7.2(b)(i)-(v), the Model Code does not specifically regulate the content and dissemination of written and recorded communications and solicitations. Even in cases where a solicitation is permissible, LRPC 7.2(c) prevents a lawyer from soliciting employment from a prospective client when the prospective client has made clear his desire not to be solicited or the solicitation includes fraud, duress and other factors. The Model Code has no clear provision on this issue, although DR 2-101(A) prevents a lawyer from using or participating in any “public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.” DR 1-102(A)(3) through (6) also prevent a lawyer from engaging in dishonest and undesirable conduct.

Finally, LRPC 7.2(d) prevents a lawyer from giving anything of value to someone for recommending his services except that he may pay the cost of advertising and other permissible communications. Similarly, the Model Code prevents lawyers from compensating people or organizations who recommend their services in DR 2-103(B). Additionally, DR 2-101(I) specifically prevents lawyers from compensating various members of the press for giving them professional publicity in a news item.

7.2:200   Permissible Forms of Lawyer Advertising

Primary Louisiana References: LA Rule 7.2(b)
Background References: ABA Model Rule 7.2(a), Other Jurisdictions
Commentary: ABA/BNA § 81.201, Wolfram § 14.2

This section has not yet been completed.

7.2:300   Retaining Copy of Advertising Material

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

This section has not yet been completed.

7.2:400   Paying to Have Services Recommended

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

This section has not yet been completed.

7.2:500   Identification of a Responsible Lawyer

Primary Louisiana References: LA Rule 7.2(b)
Background References: ABA Model Rule 7.2(d), Other Jurisdictions
Commentary: ABA/BNA §§ 81.201, 81:301, Wolfram § 14.2

This section has not yet been completed.

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 7.2(a)
Background References: ABA Model Rule 7.3, Other Jurisdictions
Commentary:

7.3:101      Model Rule Comparison

LRPC 7.2 relates to direct contact with prospective clients. LRPC 7.2(a) prohibits direct solicitation of employment from prospective clients by lawyers “or through others acting at his request or on his behalf” when the lawyer has had no prior relationship with the prospective client and the lawyer’s pecuniary gain is a significant motive. While MR 7.3(a) prevents the lawyer from engaging in the same behavior, it does not specifically prevent the lawyer from having others act on his or her request or behalf.

7.3:102      Model Code Comparison

LRPC 7.2(a) prohibits lawyers from soliciting employment through person to person contact or by telephone, or from using someone else to do the same when the lawyer has no prior relationship with the person and he is motivated by the prospect of pecuniary gain. Similarly, under DR 2-104(A) a lawyer who has given “in-person unsolicited advice to a lay person that he should obtain counsel or take legal action” is generally prevented from taking that employment except under certain, enumerated circumstances. The circumstances in which accepting such employment is permissible under DR 2-104 include employment as a result of educational activities, and as a result of a legal assistance organization. DR 2-104(A)(1), like LRPC 7.2(a), allows a lawyer to accept employment solicited in this manner when it is for a relative or someone with whom he has had a “prior professional relationship.” In contrast to LRPC 7.2(a), DR 2-104(A)(1) through (5) allows exceptions in which the lawyer may accept such employment that are not included in the Louisiana Rule.

Unlike 7.2(a), DR 2-104(A) does not prohibit acceptance of this type of solicited employment only in cases “when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain,” although EC 2-3 advises that such in-person solicitation is “improper if motivated by a desire to obtain personal benefit.” DR 2-103(A) is also similar to LRPC 7.2(a) because it prevents a lawyer from recommending employment of himself or any of his associates when that advice has not been sought. DR 2-103(C)(1) and (D) also limit the circumstances under which a lawyer may ask another person or organization to recommend his services.

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

Primary Louisiana References: LA Rule 7.2(a)
Background References: ABA Model Rule 7.3(a), Other Jurisdictions
Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5

This section has not yet been completed.

7.3:210      Solicitation by Non-Profit Public Interest Organization

This section has not yet been completed.

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

This section has not yet been completed.

7.3:300   Regulation of Written and Recorded Solicitation

Primary Louisiana References: LA Rule 7.2(b)
Background References: ABA Model Rule 7.3(b), Other Jurisdictions
Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5

This section has not yet been completed.

7.3:400   Disclaimers for Written and Recorded Solicitation

Primary Louisiana References: LA Rule 7.2(b)
Background References: ABA Model Rule 7.3(c), Other Jurisdictions
Commentary: ABA/BNA § 81:401, Wolfram § 14.2.5

This section has not yet been completed.

7.3:500   Solicitation by Prepaid and Group Legal Services Plans

Primary Louisiana References: LA Rule 7.2(d)
Background References: ABA Model Rule 7.3(d), Other Jurisdictions
Commentary: ABA/BNA § 81:2501, Wolfram § 16.5.5

This section has not yet been completed.

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 7.4
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary:

7.4:101      Model Rule Comparison

LRPC 7.4 provides the general rule which prevents a lawyer from stating or implying that he is a specialist or expert in an area of the law unless he has been certified as such in accordance with the rules of the Louisiana Board of Legal Specialization. MR 7.4(c)(1) sets forth the same general rule. The remainder of MR 7.4 has no counterpart in the Louisiana Rules of Professional Conduct.

7.4:102      Model Code Comparison

LRPC 7.4 prevents lawyers from stating or implying that they are specialists unless they have been certified in accordance with the rules set out by the Louisiana Board of Legal Specialization. Similarly, DR 2-105(A) prevents a lawyer from holding himself out as a specialist unless he is admitted to practice as a Patent attorney or he makes disclosure in accordance with rules of the state in which he practices. DR 2-101(B)(2) allows publication of a lawyer’s specialization in accordance with DR 2-105(A).

7.4:200   Regulation of Claims of Certification and Specialization

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

This section has not yet been completed.

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 7.3(a)
Background References: ABA Model Rule 7.5, Other Jurisdictions
Commentary:

7.5:101      Model Rule Comparison

While Louisiana has no Rule 7.5, LRPC 7.3(a) prevents a lawyer from using various types of firm names and logos, including trade names and trademarks, that violate the provisions of the Rules of Professional Conduct. MR 7.5(a) allows lawyers to use trade names to the extent that they comply with MR 7.1 and do not imply any connection with a governmental agency or public/charitable legal services organization. Unlike LRPC 7.3(a), MR 7.5(a) does not specifically require that trade names meet the requirements set forth in all of the Model Rules.

Similar to MR 7.1, LRPC 7.3(a) prevents lawyers and law firms from using trade names that suggest connections with such government agencies and public/charitable services, in addition to preventing the use of trade names which imply a connection to “other professional associations.” LRPC 7.3(a) adds that a lawyer shall not use a trade or fictitious name unless it is also the law firm name that appears on things like business cards, letterhead and pleadings. The Model Code imposes no such requirement.

LRPC 7.3(b) has the same text as MR 7.5(b). LRPC 7.3(c) and MR 7.5(c) both prevent law firms from using the names of lawyers holding public office in communications on behalf of the firm for any period when the lawyer is not actively practicing with the firm.

LRPC 7.3(c), unlike MR 7.5(c), also explicitly precludes law firms from using the names of lawyers “formerly associated” with the firm in its communications while the lawyer is not practicing with the firm. Additionally, LRPC 7.3(c) expressly prohibits the use of such names on the firm’s letterhead. MR 7.5 makes no such express exclusion. LRPC 7.3(d) has the same text as MR 7.5(d).

LRPC 7.3(e) allows law firms to continue to use in their names the names of deceased or retired members of its firm or a predecessor firm. The Model Rules have no counterpart, although Comment 1 to MR 7.5 allows a law firm to continue to use the names of deceased lawyers in its name. The Comment makes no mention of law firms’ continued use of the names of retired lawyers, nor does it mention using the names of the members of predecessor firms.

7.5:102      Model Code Comparison

LRPC 7.3(a) prevents a lawyer from using a “firm name, logo, letterhead, professional designation, trade name or trademark” in violation of these rules. The Model Code does not provide the same overarching rule. Instead, the use of such professional designations are governed individually in the various sections of DR 2-102. LRPC 7.3(a) also provides that a lawyer or law firm cannot use a trade name that “implies a connection with a government agency, public or charitable services organization or other professional association.” The Model Code has no counterpart. Instead, DR 2-102(B) prohibits lawyers from practicing under a trade name, a name that is misleading as to the identity of the attorneys practicing thereunder, or a firm name which uses names of attorneys who are not in the firm. DR 2-102(B) also states that “a lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm” during any significant period in which he is not a practicing member of the firm. The Rule prevents other members of the firm from using his name in the same way.

LRPC 7.3(b) allows firms with offices in more than one jurisdiction to use the same name in each jurisdiction if the jurisdictional restrictions on the lawyers in that office are indicated. DR 2-102(D) provides the same substantive rule. LRPC 7.3(c) provides that the names of lawyers who are either holding public office or who are no longer associated with the firm cannot be used in the firm’s name or in any communications on its behalf during any period when the lawyer is not practicing with the firm. Likewise, as noted above, DR 2-102(B) provides that a firm name may not contain “names other than those of one or more of the lawyers in the firm. . .”

LRPC 7.3(d) allows lawyers to hold themselves out as partners only when they are in fact. DR 2-102(C) provides the same substantive rule. LRPC 7.3(e) and DR 2-102(B) both provide the same substantive rule which allows the use of the names of deceased or retired members of a firm in the name of the firm.

7.5:200   Firm Names and Trade Names

Primary Louisiana References: LA Rule 7.3(a)
Background References: ABA Model Rule 7.5(a), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4

This section has not yet been completed.

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

Primary Louisiana References: LA Rule 7.3(b)
Background References: ABA Model Rule 7.5(b), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, Wolfram § 15.4

This section has not yet been completed.

7.5:400   Use of the Name of a Public Official

Primary Louisiana References: LA Rule 7.3(c)
Background References: ABA Model Rule 7.5(c), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4

This section has not yet been completed.

7.5:500   Misleading Designation as Partnership, etc.

Primary Louisiana References: LA Rule 7.3(d)
Background References: ABA Model Rule 7.5(d), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, ALI-LGL § 79, Wolfram § 14.2.4

This section has not yet been completed.

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