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New Mexico Rules of Professional Conduct
Comment - Rule 7.1
The 1992 amendments and additions to the Rules of Professional Conduct were prepared in substantial part by a State Bar task force on the regulation of advertising, with input from the New Mexico Trial Lawyers Association. The Supreme Court made a number of changes to the recommendations of these two organizations. Each organization prepared comments for publication. Reproduced here are the comments relating to the recommendations that have been adopted substantially in the form recommended. Publication of these comments does not imply endorsement thereof by the Supreme Court.
STATE BAR TASK FORCE COMMENTS
The goal of this State Bar task force was to prepare and submit to the Supreme Court of New Mexico amendments to the present advertising rules which would give better guidance to lawyers as to what constitutes permissible and impermissible forms of legal advertising and solicitations.
The committee considered a number of alternative drafts. In preparing amendments the committee attempted to follow existing American Bar Association Model Rules of Professional Conduct. These model rules have been adopted by numerous other jurisdictions. The task force believes that the ABA approved comments should continue to be published with these rules with appropriate compiler's notes as to the differences between the ABA model rules and these rules. Several new rules have been prepared to assure better compliance with the Code of Professional Conduct.
These rules are intended to apply to lawyer advertising, solicitation or other forms of communication by which a lawyer seeks publicity to promote legal business. The rule does not apply to communications between lawyers, including brochures used for recruitment purposes. The State of New Mexico has an interest in protecting the public from false, deceptive or misleading advertisements by lawyers. Regulation of advertising should emphasize what informs the public over what promotes the lawyer.
Lawyer advertising that is false, deceptive or misleading poses special risks to the public. Statements that might be overlooked or unimportant in other advertising may be quite inappropriate in legal advertising. Since lawyer advertising is calculated and not spontaneous, reasonable regulation of lawyer advertising, designed to foster compliance with appropriate standards, serves the public interest without impeding the flow of useful, meaningful and relevant information to the public. To ensure that accurate information of legal services is disseminated, the State of New Mexico should promote more disclosure rather than less disclosure and substance over style.
Any attorney advertising legal services should primarily provide factual information that will foster logical, reasonable and informed thought and action by the public. The lawyer always must be mindful that the benefit to the public in any lawyer advertising rests primarily upon its accuracy, informative value and reliability, and not upon its potential to enhance personal ends for the attorney or to stimulate the baser instincts of the public.
It is the avowed duty of every lawyer to assist in making legal services available to the public. The legal profession should assist the public in recognizing legal problems because such may not be self revealing or timely noticed especially by those of low to moderate income and educational levels. In the past, potential clients often knew the reputations of local attorneys and were, therefore, more easily able to make informed choices when the need for legal services arose. In recent years, however, our society has seen growing complexities in the law and attendant specialization by practitioners, the evolution of a more mobile and media conscious society, and a sharp increase in the overall number of practitioners, rendering the traditional selection process less and less effective. Lack of information about legal rights, the availability of services, and costs thereof, may effectively induce members of the public to avoid seeking legal services. By adoption of Rules 16-701 to 16-704 and 16-706 to 16-707, the State of New Mexico declares it has a substantial interest and need to reasonably regulate the content and manner of advertising by lawyers to help minimize harm to the public interest resulting from advertising which is uninformative and misleading.
A lawyer's competency and integrity cannot be determined from advertisements alone. However, such presentations can convey information which will be relevant, useful, and meaningful to the public in assisting their recognition of legal rights and in locating an attorney who will be both compatible with, and conducive to, their needs and desires.
NEW MEXICO TRIAL LAWYERS ASSOCIATION COMMENTS
Subparagraph (4) of Paragraph C of Rule 16-701 eliminates direct written solicitation in personal injury and wrongful death cases. The rule is designed to advance the substantial state interest of protecting the public's right to an informed selection of an attorney free of duress.
Written solicitation in personal injury and wrongful death cases impedes, rather than encourages, the informed selection of attorneys. First, accident victims are in a unique category of prospective clients because, unlike almost every other potential legal incident, accident reports are available to the public. Second, as a result of this unique exposure, victims are subject to intimate, private correspondence which discourages them from seeking other means of securing an attorney such as word of mouth or other forms of advertising. And, third, accident victims are generally in the midst of physical or emotional upheaval and are particularly susceptible to offers of assistance. See, Û 41-1-1 NMSA 1978. (New Mexico Legislature recognizes that unsolicited offers of assistance following an accident are merely veiled forms of duress and for that reason prohibits settlement offers with persons in the hospital within 15 days of the event.)
Since the Supreme Court's decision in Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988), attorneys have sent agents to police stations to cull through the accident reports looking for indication of injuries. Letters are then sent to those persons who appear to be injured. This rule is designed to prohibit that conduct based on the unique vulnerability of accident victims.
The proposed rule does not conflict with the United States Supreme Court's recent decision in Shapero because, unlike Shapero, the rule: (1) does not prohibit direct, written solicitation in all areas of the law; (2) serves substantial state interests; and (3) the restriction is carefully tailored to meet those state interests.
In Shapero, the Plaintiff, Richard Shapero, was an attorney specializing in the defense of foreclosure actions. Mr. Shapero applied to the Kentucky Bar Association for permission to send letters to persons who were in foreclosure proceedings. The Bar refused. Shapero applied for certiorari to the United States Supreme Court.
The Supreme Court, in a closely divided opinion, held that states could not categorically prohibit attorneys from sending targeted direct mail solicitation. Justice Brennan, writing for the majority, did hold, however, that less sweeping restrictions could be upheld if such restrictions advance substantial state interests and were tailored to directly advance those interests. Shapero, supra, at 1921.
Here, the proposed rule barring direct mail solicitation is not in conflict with Shapero. First, unlike Shapero, the restriction proposed does not encompass within its breadth all attorney direct mail solicitation. The restriction is applied only to personal injury and wrongful death cases where legitimate governmental interests are at stake.
Second, the proposed rule serves legitimate and substantial state interests. In Shapero, no state interests appear to have been presented. Here, a substantial state interest is served--the protection of the public to select their attorneys free of duress. Selection of any product including the services of attorneys, is best made when the information is presented free of duress. With the Supreme Court's lifting of restrictions on lawyer advertising, the public now has a variety of ways of securing information on attorneys. As noted above, direct solicitation in personal injury and wrongful death cases discourages, rather than encourages, consumer shopping of attorneys.
The proposed rule is specifically tailored to address the state interest. The danger of overreaching and duress appears to be limited to personal injury and wrongful death cases. Such cases are the only areas where the restriction is applied. A complete ban is needed in these areas because there is no less restrictive measure which will satisfy the legitimate state interest. Changes to the content of written solicitations will not alleviate the potential for duress. Thus, a complete ban is required.
The proposed rule banning written solicitations in personal injury and wrongful death cases is in keeping with the Supreme Court's dictates in lawyer advertising. The Supreme Court has repeatedly stated that it wishes the public to have access to information by which the public can make an informed choice. This restriction will aid the process by restricting the duress and overreaching that imperil a consumer's choice.
Letter solicitations and their envelopes should be clearly marked in accordance with Paragraph D of Rule 16-701. This will avoid the recipient perceiving that he or she needs to open the envelope because it is from a lawyer or law firm, only to find he or she is being solicited for legal services. With the envelope marked "lawyer advertisement," the recipient can choose to read the solicitation, or not to read it, without fear of legal repercussions.
Paragraph C of Rule 16-701 does not prohibit communications authorized by law, such as notice to members of a class in class action litigation.
A lawyer is allowed to pay for advertising permitted by these rules, but otherwise is not permitted to pay or provide other tangible benefits to another person for procuring professional work. See, Paragraph C of Rule 16-702. However, a legal aid agency or prepaid legal services may pay to advertise legal service provided under its auspices. Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs. These rules do not prohibit paying regular compensation to an assistant, such as a secretary or advertising consultant, to prepare communications permitted by these rules.
ABA COMMENT TO MODEL RULES
This rule governs all communications about a lawyer's services, including advertising permitted by Rule 7.2 [16-702 NMRA]. Whatever means are used to make known a lawyer's services, statements about them should be truthful.
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 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.
An advertisement 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. 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.
See also Rule 8.4(e) [Paragraph F of Rule 16-804 NMRA] for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.