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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.
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District of Columbia Legal Ethics
7.1:100 Comparative Analysis of DC Rule
DC Rule 7.1 is the only rule in the DC Rules that addresses communications by a lawyer about the lawyer's services, while the Model Rules have four rules addressing various aspects of that subject. Model Rule 7.1, like the DC Rule, sets out a general standard of truthfulness applicable to all lawyer communications; Model Rule 7.2 deals with advertising, which is not separately addressed in the DC Rules beyond a brief reference in a Comment to DC Rule 7.1, although advertising would be subject to the general requirement of truthfulness in DC Rule 7.1; Model Rule 7.3 addresses in-person solicitation and targeted mailings, which are dealt with in a less detailed fashion by DC Rule 7.1(b); and Model Rule 7.4 has quite detailed provisions regarding communications about fields of practice, again a subject not specifically addressed in the DC Rules beyond the general requirement of truthfulness in DC Rule 7.1.
DC Rule 7.1's requirement of truthfulness in lawyers' communications generally is quite similar to that of Model Rule 7.1; indeed, the text of the initial sentence, setting out the basic prohibition on a lawyer's making a false or misleading communication about the lawyer or the lawyer's services, is identical in both rules, and the two versions differ only in that in the DC Rule that sentence is labeled as paragraph (a) and in the Model Rule it has no number or letter designation. As originally adopted, in both versions of the Rule this initial sentence was followed by the identification of several particular circumstances, identified in separate paragraphs (a) through (c) of the Model Rule, and in subparagraphs (a)(1) and (2) of the DC Rule, in which a communication would be false or misleading. In 2002, however, pursuant to recommendations of the Ethics 2000 Commission, the Model Rule was amended to drop two of those elaborating paragraphs, paragraphs (b) and (c). Paragraph (b) had said that a communication is false or misleading if it is likely to create unjustified expectations, or states or implies the lawyer can achieve results by means that violate the Rules or other law; the second of these was moved to Model Rule 8.4(c) [see 8.4:101, below]. DC Rule 7.1 did not and does not contain either of these prohibitions. The omitted paragraph (c) of the Model Rule said a communication is false or misleading if it compares the lawyer's services to the services of others unless the comparison can be factually substantiated; the DC Rule sets out the same proposition in subparagraph (a)(2).
The foregoing changes made in 2002 left Model Rule 7.1 consisting of two sentences, of which the first sets out the general prohibition stated above, and the second (formerly a separate paragraph (a)) states 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. That second sentence appears also in the DC Rule as subparagraph (a)(1), along with a subparagraph (a)(2) described above.
Paragraph (b) of the DC Rule addresses solicitation, a subject that is more elaborately treated in Model Rule 7.3. It prohibits a lawyer seeking, by in-person contact, employment of the lawyer or the lawyer's partner or associate by a nonlawyer who hasn't sought the lawyer's advice, if the solicitation involves use of a statement or claim that is false or misleading, or involves the use of coercion, duress or harassment, or if the potential client is apparently in a physical or mental condition that would make it unlikely that the potential client could exercise reasonable judgment in selecting a lawyer. As originally adopted, this paragraph of the Rule allowed, subject to certain specified exceptions, for a lawyer to pay a third party to solicit clients on the lawyer's behalf -- a provision unique among American jurisdictions. One of the recommendations of the DC Rules Review Committee for revision of the DC Rules that were accepted by the DC Court of Appeals in 2006 was to eliminate this provision and substitute what is now subparagraph (b)(2) of DC Rule 7.1, forbidding a lawyer to give anything of value to a person other than the lawyer's partner or employee for recommending the lawyer's services through in-person contact. The Committee explained this change, from allowing to forbidding payment to another for soliciting clients, by saying that at the time the DC Rules were first adopted, there was little advertising by lawyers, so that allowing lawyers to pay others to recommend the lawyer's services would assist people to find a lawyer, but that the current prevalence of lawyer advertising had eliminated that problem. In addition, the Committee said there was reason to believe that some such hired solicitors, not being subject to regulation, were employing unseemly tactics in soliciting clients for lawyers. This newly added restriction in paragraph (b) of DC Rule 7.1 has something of a counterpart in what is now (since 2002) paragraph (b) of Model Rule 7.2, which more broadly forbids a lawyer from giving anything of value to a person for recommending the lawyer's services, without a limitation like the DC Rule's to recommendations made through in-person contact. The Model Rule, however, provides exceptions to the prohibition for payment of reasonable costs of advertising, for payment of the usual charges of a legal service plan or a not-for profit pr qualified lawyer referral service, and for payments for a law practice under Rule 1.17.
DC Rule 7.1(c) forbids a lawyer to cooperate with an organization that furnishes or pays for legal services to others to promote the use of the lawyer's services if the promotional activities involve the use of coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct. Model Rule 7.3(a) (as amended in 2002) more broadly prohibits all in-person, live telephone or real-time electronic contacts with potential clients with whom the lawyer has no family or prior professional relationship, when "a significant motive" for doing so is pecuniary gain, subject to an exception provided in paragraph (d) for participation in a prepaid or group legal services plan. Moreover, paragraph (b) of Model Rule 7.3 prohibits written or recorded communications, as well as in-person and live telephone communications, regardless of the lawyer's motive if either a prospective client has made known to the lawyer a desire not to be solicited, or the solicitation involves coercion, duress, or harassment. And paragraph (c) of the Model Rule requires that written, recorded and electronic communications soliciting employment by a prospective client known to be in need of legal services must bear a prominent label identifying it as Advertising. None of these provisions of Model Rule 7.3 has any counterpart in DC Rule 7.1 or any other DC Rule.
Model Rule 7.4 sets out some fairly intricate restrictions on a lawyer's communications concerning his or her areas of practice and specialization, none of which has any parallel in DC Rule 7.1 or any other DC Rule. DC Rule 7.1 does apply to such communications, but the only restriction it applies to them is the requirement that they not be false or misleading.
DC Rule 7.1 does, however, have two provisions that are unique to the District of Columbia. Paragraph (d) of the Rule prohibits the solicitation of clients for purposes of representing them for a fee, within a specified distance from the DC Courthouse. This provision is derived from a Rule of the DC Court of Appeals, designed to discourage unseemly solicitation of clients around the courthouse. The Jordan Committee added to it the limitation to solicitations looking to a representation for a fee in order not to discourage solicitations for pro bono representation.
The other unique provision of DC Rule 7.1 is a new paragraph (e), added in 2006 in response to reports of the Public Defender Service, the United Sates Attorney's Office and the Office of Bar Counsel of lawyers who regularly solicit inmates already represented by counsel, for fee-paying representations with promises of a quick release from prison or a favorable resolution of their case. To protect the inmates in such matters, that provision requires notice to the current counsel before the lawyer who has solicited such a case accepts any funds from the inmate.
The DC Rule, addressing both advertising and solicitation, represents a substantial revision of DR 2-101 and DR 2-103. (The latter provision, in the DC version, and many of the related Ethical Considerations were significantly different from comparable provisions of the Model Code of Professional Responsibility.) DR 2-101(A), pertaining to publicity and advertising, stated that a lawyer shall not knowingly make any representation about his or her ability, background, experience, law partners or associates, or fees that is "false, fraudulent, misleading, or deceptive, and that might reasonably be expected to induce reliance by a member of the public." DR 2-101(B) addressed the types of statements or claims likely to be false, fraudulent, misleading, or deceptive. The DC version of DR 2-103, pertaining to solicitation of professional employment, was substantially similar to DC Rule 7.1(b) and (c). Paragraph (d) of DC Rule 7.1, containing the restriction on solicitation in or near the DC Courthouse, carries forward the substance of DR 2-103(E) of the DC Code of Professional Responsibility, which had no parallel in the Model Code.
7.1:200 Lawyer Advertising--In General
DC Ethics Opinion 316 (2002), enlarging on the treatment of issues relating to lawyers' use of the internet in Opinion 302 (discussed immediately below), addressed the permissibility of lawyers participating in on-line "chat rooms," "listservs" and similar arrangements through which lawyers engage in interactive communications in "real time" (or nearly real) with internet users seeking legal information. The discussion was quite comprehensive, including a canvass of scholarly and ethics committee treatment, and a survey of practices in actual chat rooms and listservs. The Opinion observed that the ethical Rule ordinarily engaged by such communications for lawyers subject to the DC Rules is Rule 7.1, which does not make the sharp distinction generally found in other jurisdictions' ethics codes between advertising and solicitation (nor limit the latter to the extent commonly done). It also observed that a lawyer's seeking business through chat rooms or listservs effectively falls somewhere between a face-to-face communication and a written one, having the immediacy of the former, yet the ignorability of the latter. Under the DC Rules, the lawyer's principal ethical obligations in the circumstances are to avoid false or misleading communications, per Rule 7.1(a); and, where pertinent, not to use "undue influence" or take advantage of a potential client's "physical or mental condition," under Rule 7.1(b)(2) and (3), respectively.
The Opinion also pointed out a principal potential problem presented by lawyers' use of the internet in these circumstances: the risk of inadvertently establishing an attorney-client relationship-which, once established, will subject the lawyer to the full range of ethical obligations that would apply if the lawyer had intentionally entered into such a relationship; including avoidance of conflicts, under Rules 1.7, 1.8, 1.9 and 1.11; competence under Rule 1.1, diligence and zeal under Rule 1.3, and adequate communication under Rule 1.4. The risk of inadvertently establishing an attorney-client relationship arises from the fact that nothing more is needed to establish such a relationship than reasonable expectations and reliance by the putative client; no written agreement is necessary, and a written disclaimer will not necessarily be an effective preventive measure. Thus, the Opinion emphasized that that "lawyers wishing to avoid formation of attorney-client relationships through chat room or similar Internet communications should limit themselves to providing legal information, and should not seek to elicit or respond to the specifics of particular individual situations."
DC Ethics Opinion 302 (2000) explored issues relating to lawyers' use of internet-based web pages in two kinds of circumstances: soliciting plaintiffs for class action lawsuits through such web pages established by the lawyer, and offering legal work through web pages sponsored by others, on which potential clients post requests for bids on legal projects. As to both categories of circumstance, the Opinion concluded, as had opinions of other ethics committees, that there is nothing untoward about lawyers communicating about their services through web sites so long as the communications conform to the general rules on communicating with clients, which in this jurisdiction means Rule 7.1. That rule, as has been noted above, is the sole counterpart of MR's 7.1 , 7.2, 7.3, and 7.4, and its central requirement is simply that lawyers' communication about their services not be "false or misleading." Rule 7.1(a).
As respects use of web pages to solicit plaintiffs for a class action, the Opinion pointed out that there are a number of ways such communications could be false or misleading so as to fall afoul of the rule: by an inaccurate description of the lawsuit; by use of words, such as "Notice," suggesting that the communication is required or authorized by a court; by comparative claims about superiority of the lawyer's services that can't be substantiated, per Rule 7.1(a)(2) and Comment ; and, for reasons explained in DC Ethics Opinion 249 (1995) [discussed under 7.1:230, below] claims that the lawyer "can help you." The Opinion pointed out that the DC rules, unlike those of other jurisdictions, do not prohibit the use of for-profit agencies to provide advertising or referral services to lawyers so long as it is clear that a communication is a paid advertisement or, if the relationship between the lawyer and the web site host is more complicated, the lawyer takes reasonable steps to make sure the potential client is informed of the consideration paid by the lawyer to the intermediary, and the effect of such payment on the fee charged the client, per Rule 7.1(b)(5) and Comment . The Opinion also pointed out that DC Rules 4.3 and 3.6 could also have a bearing on web site communications seeking class action plaintiffs, the former as requiring that it be made clear that the lawyer has a financial interest in the suit, and is not merely making a disinterested public announcement; the latter as requiring the lawyer to make sure the web site communications do not present " a serious and imminent threat to the impartiality of the judge or jury." The Opinion observed the potentially "multi-layered" character of communications through web sites, and the resulting possibility that such communications may become misleading because "relevant disclosures are hidden many clicks away from the main pages." It suggested in this regard that key disclosures be provided on "click through" boxes or pages, requiring visitors to verify that they have read important information. The Opinion also suggested various technical measures a lawyer might take to make the web site more efficient.
On the other subject addressed, the use of web sites on which clients post requests for bids on legal projects, the Opinion largely agreed with New York City Ethics Op. 2000-1 (2000) in approving the practice with certain restrictions, but noted that differences between the respective rules of the two jurisdictions resulted in differences with respect to applicable restrictions. Once again, the key provision under the DC Rules is Rule 7.1(a)'s prohibition of communications that are false or misleading. In DC, unlike New York, there is no prohibition on lawyers paying a fee for access to web sites containing postings of legal projects, provided appropriate disclosures are made to the client, under Rule 7.1(b)(5). Additionally, again unlike New York's, the DC Rules do not prohibit communications with potential clients who have not initiated the exchange: in other words, they make no distinction between advertising and solicitation. The Opinion noted that a sample web site that had been reviewed in connection with the preparation of the Opinion offered assistance to law firms in responding to RFP's, and concluded that this would not offend Rule 5.4(a)'s prohibition on allowing a non-lawyer to direct or regulate the lawyer's professional judgment. The Opinion did conclude, however (here agreeing with the New York City Opinion), that there would be a problem if the fee paid to the web site were linked to or contingent on fees obtained by the lawyer from a posted project, since that would be sharing fees with non-lawyers in violation of Rule 5.4. And, again agreeing with the New York counterpart, the Opinion noted the potential confidentiality and conflicts problems presented by use of such web sites, and the need for appropriate measures to deal with such problems.
DC Ethics Opinion 261 (1995) addressed the application of Rule 7.1(b)(2) and (3), which prohibit solicitation involving undue influence or where the potential client cannot exercise considered judgment based on physical or mental condition, to a pro bono legal assistance program's practice of referring battered women in a hospital emergency room to lawyers if the women so requested. The Opinion held that neither Rule 7.1(b)(2) nor Rule 7.1(b)(3) applies when the individuals making the referrals are not affiliated with the recommended lawyers or when the victims are not asked to select a particular lawyer while in the emergency room.
DC Ethics Opinion 225 (1992) stated that, if a law firm participates in a prepaid legal services program whereby a third-party marketing company contacts potential clients, DC Rule 7.1 is applicable, and the law firm must satisfy itself that statements made by the marketing company comply with the requirements of Rule 7.1 so as to "avoid misleading potential subscribers as to what is being purchased." The DC Court of Appeals addressed DR 2-103, Rule 1.7(e)'s predecessor provision under the DC Code of Professional Responsibility, in In re Gregory, 574 A.2d 265 (DC App 1990). The Court refused to impose reciprocal punishment based on DR 2-103 after a lawyer had engaged in in-person solicitation of potential clients in the hallways of the District Court of Maryland in Montgomery County. The Court noted that under the literal language of DR 2-103, which pertained to in-person solicitation only in the vicinity of the DC Courthouse, the lawyer had not violated the rule and reciprocal punishment could not be imposed.
The U.S. Supreme Court has extended First Amendment protection to lawyer advertising as a form of commercial speech, provided that the communication is not false, misleading, or deceptive. See In re R.M.J., 455 U.S. 191 (1982). The Supreme Court also has concluded that states have an interest in protecting the public from communications about a lawyer or a lawyer's services that are false and misleading. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). Because DC Rule 7.1 essentially prohibits only "false or misleading" communications and the use of undue influence, it has not been necessary to amend the rule to reflect changes in commercial speech jurisprudence addressing such specific issues as in-person solicitation, targeted mailings, and communications about specialized fields of practice. For example, MR 7.3 and its comments were amended in 1989, in part as a response to Shapero v. Kentucky State Bar, 486 US 466 (1988), which addressed a state's authority to regulate direct mail advertising to potential clients. Rather than totally banning direct mail advertising, like the restriction at issue in Shapero, the DC Rule permits such advertising as long as it conforms to paragraph (a)'s truthfulness standard. The Supreme Court, in Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995), recently distinguished Shapero and upheld a Florida rule that prohibited targeted mail to accident victims and their relatives for 30 days after injury.
MR 7.4 , moreover, was amended in 1992 in response to Peel v. Attorney Registration & Disciplinary Comm'n, 496 US 91 (1990), which addressed restrictions on lawyer communications about the areas in which they practice or specialize. The Supreme Court held that states may not categorically prohibit lawyers from advertising their certification as "specialists" by bone fide organizations. Because Rule 7.1 does not contain express restrictions on communications concerning the lawyer's field of practice, it was not necessary to amend DC Rule 7.1.
Finally, in Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), the Supreme Court upheld a blanket prohibition against any form of in-person solicitation of legal business for pecuniary gain. The DC Rule currently prohibits in-person solicitation only in or near the DC Courthouse, a permissible restriction under Ohralik.
DC Rule 7.1 expressly prohibits lawyers from making false or misleading communications to potential clients. The "false or misleading" standard has been addressed in numerous ethics opinions.
DC Ethics Opinion 303 (2001) addressed in a comprehensive way the ethical rules affecting the sharing of office space by unaffiliated lawyers. The Opinion commenced with the observation that there is no ethical prohibition against lawyers sharing office space, personnel, equipment or expenses as such, but pointed out that there are a number of ethical hazards to be avoided: misleading the public generally as to the nature of the professional relationship involved in violation of Rule 7.1 and more specifically as representing themselves as in a partnership when that is not the case, in violation of Rule 7.5(d); failing to preserve client confidences and secrets, in violation of Rule 1.6; and avoiding the imputation, under Rule 1.10, of conflicts arising under Rule 1.7. As respects misleading the public about the nature of the relationship among the lawyers sharing offices, the Opinion pointed out that office signage or letterhead referring to "law offices of A, B & C" would imply a joint practice of law among the three; and that if A were to be identified as practicing in the facilities of the "Law Firm of B, C & D," he or she would be understood to be in practice with those three. Parallel problems are presented by the way a common telephone line is answered; the preferable solution here being a simple identification of "Law Offices." An attendant hazard is that an office sign or letterhead suggesting that the lawyers sharing offices are in a firm may well suggest that they are also in a partnership, which would be a violation of Rule 7.5(d). As to client confidentiality, the Opinion pointed out that files, storage space, computerized records and work files must all be handled in a way that preserves the confidentiality of shared information; and that where there are shared employees, they must be instructed and supervised about preserving client confidences. Finally, the Opinion observed that Comment  to Rule 1.10 provides that "two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarding as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules." The effect of two or more lawyers being in a "firm," of course, is to impute to each all the client obligations of the others, and thereby to risk creating conflicts under Rule 1.7 where there would be none for the lawyers practicing individually.
DC Ethics Opinion 224 (1992) stated that a lawyer one of whose partners had died and the other had retired could continue to use a firm name containing both of those partners' names, absent reason to believe that clients or potential clients were in fact led to believe that the lawyer continues to practice in a partnership with the other lawyers. The nub of the holding was that a firm name containing multiple names does not necessarily imply that the firm is a partnership or that all the names are those of active partners. The opinion distinguished DC Ethics Opinion 189 (1987), which applied the predecessor Code provisions DR 2-101(B)(3) and DR 2-102(A), concluding that a single lawyer could not adopt the name "John Doe & Associates" because it implied that the lawyer was in a multiple attorney firm.
DC Ethics Opinion 332 (2005) addressed firm names for solo practitioners and concluded that the use of the word “firm” in the firm’s name is not presumptively misleading because it does not necessarily convey that the lawyer practices with other lawyers. The Opinion cautioned that solo practitioners who practice under a name that includes the term “firm” must exercise care in conducting their practice to avoid creating a misimpression and correct any confusion on the part of clients.
DC Ethics Opinion 53 (1978), which addressed Rule 7.1's predecessor Code provision DR 2-101(A), held that there is nothing inherently misleading if a lawyer fails to include his name in an advertisement.
DC Ethics Opinion 235 (1993) held (at a time when DC law did not yet provide for the creation of "limited liability partnerships" or "limited liability companies") that lawyers in a firm organized under the law of another jurisdiction could practice under the name of the firm, provided that the name used included the full descriptive phrase, and not merely the abbreviation "LLP" or "LLC." The opinion observed in passing that Rules 1.4(b) and 7.1(a) were satisfied by use of the abbreviation "PC" or "PA" in the case of an incorporated law firm, since DC law specifically provided for such entities. [This opinion has effectively been overruled by amendment of the DC Code to authorize both LLPs (DC Code § 41-143 to 148) and LLCs (DC Code § 29-1301 et seq.).] See DC Ethics Opinion 254 (1995) (permitting use of "LLP," "LLC," and "PLLC" abbreviations to reflect legislative changes).
A lawyer's communication regarding the fees to be charged to the client may also be barred under Rule 7.1. DC Ethics Opinion 267 (1996), which is discussed at 1.5:500 above, held that Rule 7.1(a)(1)'s prohibition of false or misleading communications about a lawyer's services would apply to a fee schedule that did not adequately apprise the client of how fees would be calculated. The Opinion held that, when a client is informed that he or she will be billed on a time basis, it is a violation of DC Rule 7.1 to impose additional fees that are not disclosed to the client and are not calculated on the disclosed basis.
DC Ethics Opinion 253 (1995), however, stated that a law firm that proposed to pay an insurance company referral fees would not violate Rule 7.1 so long as the law firm informed clients that a referral fee was paid and that it would have no effect on the total fee for the client. The Opinion did note that the firm might be in violation of DC Rule 1.7 pertaining to conflicts of interest.
DC Ethics Opinion 110 (1981) held, with respect to DR 2-101, that a law firm's advertisement that included the descriptive term "The Immigration Lawyers" does not violate the prohibition against misleading advertising. The Opinion concluded that the use of the definite article "the" would not result in misleading the ordinary prudent person. See DC Ethics Opinion 91 (1980) (concluding that advertising for a prepaid legal services plan was misleading under DR 2-101 where a misimpression would be created that the plan provided more services that it did).
Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A. 2d 332 (DC 2001) was a suit by a corporation against a lawyer and his firm for defamation alleged to have occurred when the lawyer solicited one of the corporation's shareholders to bring a shareholder derivative or class action against the corporation; the dispositive issue was whether the judicial proceedings privileges applies to statements made prior to commencement of the proceedings. The court held that the privilege did apply, but also observed that there might be other remedies available in such circumstances, including disciplinary proceedings for violation of Rule 7.1(b). (The complaint also contained a count charging a violation of Rule 7.1(b); the court did not address this count on the merits but simply noted that the parties disputed whether the count stated a cognizable claim, and cited DC Rules Scope paragraph  , which states in substance that the Rules are not intended to create new causes of action enforceable otherwise than in disciplinary proceedings.).
DC Rule 7.1, unlike MR 7.1 , does not expressly address in its text communications that are likely to create an unjustified expectation about the results a lawyer can achieve for the potential client. Communications must conform to Rule 7.1's general truthfulness standard. Comment  warns that certain advertisements such as those that describe the amount of a damage award or the lawyer's record in obtaining favorable verdicts or contain client endorsements, "unless suitably qualified, have a capacity to mislead by creating an unjustified expectation that similar results can be obtained for others."
DC Ethics Opinion 249 (1995), for example, held that a lawyer's claim that he "can help you" is prohibited under Rule 7.1 because there is no way that such a claim can be accurate in the abstract and the lawyer cannot know whether or not he can help any client until some facts are known about the client's case.
DC Ethics Opinion 81 (1979) addressed DR 2-101(B)(3), which, unlike MR 7.1, expressly prohibited advertising "likely to create an unjustified expectation." The Opinion held that advertising by a business organization that contracted with various lawyers to provide legal services under the name "The Legal Counsellors" was likely to create an unjustified expectation in potential clients because it created the impression that the lawyers worked together in a single law firm, rather than independently. See DC Ethics Opinion 95 (1980) (advertisement for the "Accident Legal Assistance Center" permissible under DR 2-102(B) where Center essentially consisted of three attorneys one of whom was always available to assist clients); DC Ethics Opinion 74 (1979) (lawyer advertisement asserting that "you may be entitled to rent increase under DC law" not prohibited under DR 2-101(A), predecessor Code provision to DC Rule 7.1).
DC Rule 7.1, unlike the MR 7.1, does not address in the black letter text communications that compare a lawyer's services with those of other lawyers. Rather, such communications must conform to the DC Rule 7.1's general truthfulness standard, which includes the requirement that any comparison be capable of "substantiation." Moreover, the DC Rule does not explicitly address a lawyer's claims of special expertise. The DC Court of Appeals, on the recommendation of the DC Bar, rejected Model Rule 7.4, which regulates claims of specialization.
DC Ethics Opinion 249 (1995) held that claims that a lawyer can help a client "when others cannot" is inherently incapable of substantiation and prohibited by DC Rule 7.1(a)(2). However, it was permissible for the lawyer to claim that he was "an expert in immigration law" because the basis of the lawyer's claim of experience, over 2,150 representations in immigration matters, was disclosed in the ad.
7.2:100 Comparative Analysis of DC Rule
DC has no Rule 7.2. The subject of advertising is dealt with only by DC Rule 7.1(a), and there only by the general requirement that a lawyer's communications about the lawyer or the lawyer's services must not be false or misleading. See 7.1:101, above.
7.2:200 Permissible Forms of Lawyer Advertising
7.2:300 Retaining Copy of Advertising Material
7.2:400 Paying to Have Services Recommended
As has been pointed out under 7.1:101, above, until 2006, DC alone among American jurisdictions allowed a lawyer, subject to certain limitations, to pay others to recommend the lawyer's services; among the changes made to the DC Rules in 2006, however, was the rescission of that provision and the substitution of what is now DC Rule 7.1(b)(2), providing that a lawyer may not give anything of value to a person (other than the lawyer's partner or employee) for recommending the lawyer's services through in-person contact. The fact that this new provision is limited to recommendations made through in-person contact, and so does not apply to contacts other than face-to-face or by telephone, nor to advertisements, makes it somewhat less restrictive than the provisions of Model Rule 7.2(b), which prohibits a lawyer from giving anything to another person for recommending the lawyer's services, with exceptions for the reasonable cost of advertisements or communications otherwise permitted by that Rule, the usual charges of legal service plan or a not-for-profit or qualified lawyer referral service, or payment for a law practice under Rule 1.17.
DC Ethics Opinion 253 (1994) noted the tension between DC Rule 7.1(b)(5)'s blessing of certain referral fees, without regard to whether the recipients were lawyers, and the prohibition in DC Rule 5.4(a) against a lawyer sharing fees with a nonlawyer. The inquiry there addressed concerned an arrangement under which a law firm proposed to pay an insurance coupon, for referrals of clients to the firm, at set rates per case, payable upon settlement or judgment in the referred cases. The Opinion recognized that DC Rule 5.4(a) prohibited such payments where Rule 7.1(b)(5) permitted them (provided that the prescribed disclosures were made), and concluded that the latter provision would trump the former. The Opinion went on, however, to suggest that the proposed arrangement might raise more serious problems of conflicts of interest under DC Rule 1.7(b)(4) and resulting limitations on the law firm's zeal and diligence on behalf of the clients referred to it by the insurance company.
DC Ethics Opinion 286 (1999) largely overruled Opinion 253's treatment of the relationships between DC Rule 5.4(a) and 7.1(b)(5). The question there severally addressed was whether a payment to another person for the referral of legal business, contingent on the lawyer's receipt of revenue from the referred matter, is a sharing of legal fees governed by Rule 5.4(a), and therefore permitted only between lawyers, or a referral fee permitted by Rule 7.1(b) to be paid to anyone. The Opinion concluded that Rule 5.4(a) prevailed -- and pointed out as well that such an arrangement must conform to Rule 1.5(e)'s requirements regarding the division of fees between lawyers not in the same firm.
DC Ethics Opinion 307 (2001) forms a somewhat discordant trilogy with Opinions 253 and 286, discussed above. Opinion 307 addressed the question whether it is ethically permissible for a lawyer to participate in a governmental referral service that requires the lawyer to pay, as a fee for participation in the program, one percent of the legal fees resulting from such participation; the fee so charged being devoted to defraying the cost of the referral service, which was not supported by governmental funding. The ethical issue was whether the lawyer's participation in the program would be governed by Rule 5.4(a)'s prohibition on a lawyer's sharing fees with a non-lawyer, or by Rule 7.1(b)(5)'s implicit authorization of the payment of referral fees to lay organizations; see cmt  to Rule 7.1. In Opinion 253 the Ethics Committee had concluded that a contingent referral fee paid to an insurance company was governed by Rule 7.1(b)(5) and therefore permissible; in Opinion 286 the Committee concluded in a more general way (not tied to any stated set of facts) that a contingent referral fee paid to a non-lawyer constituted fee-sharing and was forbidden by Rule 5.4(a). In Opinion 307, the Committee reversed field again, and held that, at least in context of the particular governmental program giving rise to the inquiry under consideration, the payment involved, even though contingent and made to a non-lawyer entity, came under Rule 7.1(b)(5) and so was permissible. Factors leading to this conclusion were that the governmental program involved was an established, organizational referral service rather than an individual third party intermediary; the persuasiveness of opinions of other ethics committees approving referral service fees based on a percentage of lawyer fees earned through the service; the absence, in the context of such services, of the substantive evils associate with fee-spitting with non-lawyers; the benefits of having this particular referral service supported by non-governmental funds; and the reasonableness of the one percent fee. The Opinion also pointed out that Rule 7.1(b)(5) required lawyers securing governmental clients pursuant to this referral service to make the same disclosures to those clients about the fee paid, and the effect if any of the fee to be charged, as would be required in the case of private clients.
DC Ethics Opinion 329 (2005) [which is discussed more fully under 5.4:200, above] relied largely on Opinion 307 [discussed above] in concluding that DC Rules would not be violated by a proposal under which a non-profit organization would pay a lawyer a $10,000 annual retainer to handle small workers’ compensation claims on behalf of day laborers; allow the attorney to take a 10 percent contingency fee from client awards; and require the attorney to pay the non-profit the first $10,000 the lawyer receives in contingent fees each year to permit the non-profit to recoup its retainer costs.
7.2:500 Identification of a Responsible Lawyer
7.3:100 Comparative Analysis of DC Rule
7.3:200 Prohibition of For-Profit In-Person Solicitation
7.3:300 Regulation of Written and Recorded Solicitation
7.3:400 Disclaimers for Written and Recorded Solicitation
7.3:500 Solicitation by Prepaid and Group Legal Services Plans
7.4:100 Comparative Analysis of DC Rule
DC has no Rule 7.4. The subject of communication of fields of practice and specialization is dealt with only by DC Rule 7.1(a), and there only by the general requirement that a lawyer's communications about the lawyer or the lawyer's services must not be false or misleading. See 7.1:101, above.
7.4:200 Regulation of Claims of Certification and Specialization
7.5:100 Comparative Analysis of DC Rule
DC Rule 7.5, dealing with firm names and letterheads, was until 2002 identical to Model Rule 7.5 in both its black letter text and its Comments, although, as will be explained, it differed slightly in substance by reason of the reference to Rule 7.1 for the substantive standard against which firm names are measured. Slight, clarifying changes in the Model Rule and in its Comments were among the recommendations of the Ethics 2000 Commission that were adopted in 2002, and with the exception of one of the changes to a Comment were incorporated into the DC Rule along with the other changes recommended by the DC Rules Review Committee that were adopted in 2006.
The slight difference in substance by reason of the reference to Rule 7.1, mentioned above, involves paragraph (a) of the Rule, which in both the DC Rule and the Model Rule prohibits a lawyer from using a firm name, letterhead, or "other professional designation" that violates Rule 7.1. Although the language of that paragraph is identical in both versions of Rule 7.5, the prohibition in Rule 7.1 that is thus incorporated by reference is, as explained in 7.1:101, above, slightly different in the DC rule than in the Model Rule, although the difference was narrowed by the changes made to the Model Rule in 2002 and to the Model Rule in 2006. As they now stand, both versions of Rule 7.1 prohibit false or misleading communications about a lawyer or the lawyer's practice, and both say that a communication is false or misleading if it contains a material misrepresentation of law or fact, or omits a fact necessary to make the statement considered as a whole not materially misleading; but the DC Rule also says that a communication is misleading if it contains an assertion about the lawyer or the lawyer's services that cannot be substantiated.
In addition to prohibiting names that violate Rule 7.1, paragraph (a) in both the DC and the Model Rule versions of Rule 7.5 permits lawyers in private practice to use trade names if there is no implied connection to a government agency or to public or charitable legal services, and the name is not false or misleading. Paragraph (b) in both permits a multi-jurisdiction law firm to use the same firm name in each jurisdiction where it has an office but requires the firm to disclose, when listing the members of the firm on letterhead or in professional listings, any jurisdictional limitations with respect to its lawyers pertinent to the jurisdiction in which an office is located. And paragraph (b) in the Model Rule was amended in 2002 and in the DC Rule in 2006 by adding, after "name," the phrase "or other professional designation." Paragraph (c) in both prohibits a law firm from including in the firm name, or in any communications on the firm's behalf, the name of a lawyer holding public office if that lawyer has not been "actively and regularly" practicing with the firm for a "substantial period." And paragraph (d) in both permits lawyers to state or imply that they practice in a partnership or other organization only when that "is the fact."
Comment  in the two versions of Rule 7.5 was amended, in 2002 and 2006, respectively, by the addition of a second sentence saying that a lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. The DC version of the Rule also was amended to add a final sentence saying that it is misleading to continue to use the name of a lawyer formerly associated with the firm who is currently practicing elsewhere, and citing DC Ethics Opinion 277 (1997). Comment  to both versions of Rule 7.5 was amended to say that two lawyers sharing office facilities but are not in fact "associated in a law firm," rather than, as previously, "partners," may not use a name such as Smith & Jones because it suggests that they are "practicing law together in a law firm," rat her than, as previously, "partnership in the practice of law."
Rule 7.5 represents a substantial revision of DR 2-102 of the Code. DR 2-102(A), one of the antecedents of paragraph (a) of the Rule, prohibited a lawyer or law firm from using or participating in the use of professional cards, announcements, office signs, letterheads, or other notices and devices unless they were "in dignified form" and conformed to specific requirements set out for each type of notice under DR 2-102(A)(1) to (4). Paragraph (a) of the DC Rule, in contrast, simply prohibits a lawyer from using professional designations that are false or misleading within the meaning of DC Rule 7.1. DR 2-102(B) prohibited a lawyer in private practice from practicing under a trade name. DC Rule 7.5(a), however, allows trade names subject to certain limitations.
DR 2-102(D) permitted a multi-jurisdiction firm to use the same firm name in each jurisdiction where it had an office, provided that the firms disclosed, when listing the members of the firm on letterhead or in professional listings, the jurisdictional limitations of lawyers not licensed to practice in all the listed jurisdictions. DC Rule 7.5 differs slightly in requiring that jurisdictional limitations be indicated only for those lawyers not admitted in the jurisdiction in which is located the office for which a listing of lawyers is made. DR 2-102(B) stated that the name of a lawyer holding public office could not be used in the name of a law firm or in professional notices of the firm during any "significant period" in which the lawyer was not "actively and regularly" practicing with the firm. DC Rule 7.5(c) states the same rule but substitutes "substantial for "significant" to describe the period of inactivity with a firm that disables a lawyer entering public service from having his name used as the firm name or otherwise by the firm.
DR 2-102(C) prohibited a lawyer from holding himself or herself out as having a partnership with other lawyers unless they were, in fact, partners. DC Rule 7.5(d) similarly permits lawyers to state or imply that they practice in a partnership or "other organization" only when that is the fact.
7.5:200 Firm Names and Trade Names
DC Ethics Opinion 277 (1997) addressed an inquiry by a lawyer who had been the founding partner of a law firm that bore her name and that of the other founder, and who now planned to sever her relationship with the firm. The inquirer was unsure whether she would continue to practice law after withdrawing from the firm, but in any event wanted her name removed from the firm's name after she departed. Her inquiry was whether the Rules of Professional Conduct required the firm, at her request, to remove her name from the firm's name. The Opinion pointed out that Rule 7.5 explicitly recognized the propriety of a firm maintaining in a firm name the name of a deceased or retired partner, and held that whether that sort of "trade name" included the right to use the name of a former partner in the circumstances of the inquirer would depend on whether the lawyer practiced elsewhere (in which case use of the name would be misleading), or on "whether such use was authorized under common law, the firm's partnership agreement or otherwise." The Opinion offered no guidance as to the pertinent common law of the District of Columbia, or on the intended meaning of "otherwise" in the quoted phrase.
DC Ethics Opinion 338 (2007) addressed a situation in which a lawyer planned to practice in two firms, both of which would both bear his name. The lawyer intended to withdraw from the partnership and become “of counsel” to the first firm, and also form a new firm in which he would be a partner. The Opinion first held that a lawyer may be “of counsel” in one firm and a partner in another. It also observed that the firms would have to be treated as a single firm for conflicts of interest purposes, because the lawyer would be “associated with” each firm for purposes of imputation under Rule 1.10(a).
The Opinion also held that both firms could use the lawyer’s name. Opinion 277 [discussed above] had stated that it would be misleading for a firm to use a departed lawyer’s name when the lawyer was practicing elsewhere, but Opinion 338 distinguished the situation in which the lawyer planned to continue to practice with the firm as “of counsel.” The Opinion concluded that the names would not be misleading as long as the lawyer “maintains a regular and continuing association with both firms and is generally available personally to render services at each firm.” Three members of the Legal Ethics Committee dissented from the portion of the Opinion that allowed the old firm to retain the lawyer’s name on the ground that it would be confusing or misleading to potential clients.
DC Ethics Opinion 271 (1997) said that a lawyer licensed to practice in several jurisdictions who intended to change his status in the DC Bar from "active" to "inactive" must disclose the inactive status on letterhead, business cards and announcements in order to avoid misleading the public. An "inactive" lawyer may not practice in the District, and therefore it would be misleading for such a lawyer to state without more that he was a member of the DC bar as well as the bars of the jurisdiction where he intended to remain active.
DC Ethics Opinion 244 (1993) concerned the inclusion of the name of a nonlawyer partner in the firm name. (The subject of DC law firms having nonlawyer partners is addressed under 5.4:101, above.) The Opinion ruled that the name of a nonlawyer partner may be included in the name of a law firm; but the law firm must make clear on firm stationery, business cards, and professional listings that the nonlawyer partner is not a lawyer in order to avoid misleading the public.
DC Ethics Opinion 224 (1991) ruled that the inclusion in a firm name of the names of partners who have died, retired, or otherwise left the firm is not prohibited so long as clients are not misled about those with whom a partner or partners currently practice. The particular inquiry raised the concern that a client might be misled to think that a sole practitioner practiced with others who no longer were associated with the firm. See also the discussion of DC Ethics Opinion 273 (1997), under 1.4:200, above (pointing out the need to drop from a firm name the name of a lawyer who has left to join another firm).
DC Ethics Opinion 254 (1995) supplanted DC Ethics Opinion 235 (1993) and said that law firms organized as "limited liability companies," "limited liability partnerships," or "professional limited liability companies" may abbreviate those designations as "L.L.P.", "L.L.C." and "P.L.L.C." respectively in firm communications. The opinion relied on legislation passed by the District of Columbia Council permitting such companies and partnerships to use the abbreviations. See D.C. Code § 29-1304.
DC Ethics Opinion 332 (2005) addressed firm names for solo practitioners and concluded that the use of the word “firm” in the firm’s name is not presumptively misleading because it does not necessarily convey that the lawyer practices with other lawyers. The Opinion cautioned that solo practitioners who practice under a name that includes the term “firm” must exercise care in conducting their practice to avoid creating a misimpression and correct any confusion on the part of clients.
DC Ethics Opinion 197 (1989), applying DR 2-102, determined that a law firm was not prohibited from using the term "of counsel" to describe its relationship with a lawyer in another jurisdiction, where that lawyer was regularly available for consultation and advice with the law firm and its clients.
DC Ethics Opinion 192 (1988) concluded that a law firm was not prohibited by DR 2-102 from stating on its letterhead or in a legal directory listing that it was "associated with" a firm in another jurisdiction or that the other law firm was its "correspondent firm" if these characterizations accurately described the relationship between the two firms.
DC Ethics Opinion 141 (1984) explained that it was permissible under DR 2-102 for a lawyer to state on business cards or stationery, or in change of address announcements or advertisements that he or she was a "Member of the Commercial Law League of America," so long as care was used to prevent the designation from misleading or deceiving the public or implying that the lawyer was a certified commercial law expert.
In DC Ethics Opinion 87 (1980) [also discussed under 7.5:300, below], the Legal Ethics Committee said that the name "The Legal Clinic" of A, B & C, Attorneys at Law, was permissible if in fact it lived up to what the committee took "clinic" to imply: that it provided standardized and multiple services and provided them at lower than average prices. It also insisted that, if it was a commercial enterprise (as was the inquiring firm), it must negate any implication that it was charitable or non-profit (as the inquirer had by a commercial-looking brochure, the use of individual names in the firm name and the publication of a price list). The Committee cited the then-recent decision of the Supreme Court in Bates v. State Bar of Arizona, 433 US 350 (1977).
See DC Ethics Opinion 92 (1980) (concluding that the name "Accident Legal Assistance Center" was permissible under DR 2-102 because lawyers at the Center pooled their experience, consulted with one another and ensured that at least one lawyer was always available to help potential clients); DC Ethics Opinion 81 (1979) (concluding that the name "the Legal Counsellors" was impermissible under DR 2-102 where the name created the impression that lawyers were practicing together when they were only participating in a joint advertising referral program).
7.5:300 Law Firms with Offices in More Than One Jurisdiction
All of the ethics opinions on the subject of permissible firm names and communications involving multi-jurisdiction law firms applied DR 2-102(D), the predecessor Model Code provision to DC Rule 7.5(b). DC Ethics Opinion 183 (1987) concluded that under DR 2-102(D) a lawyer who was employed by a multi-jurisdiction firm and was located in an office where she was not yet a member of the bar must disclose on her business cards either that she was not a member of the local bar or that she was admitted only to the bar of another jurisdiction.
DC Ethics Opinion 87 (1980) [also discussed under 7.5:200, above], following DR 2-102(D), held that a law firm organized as a professional corporation was permitted to practice in more than one jurisdiction under the same firm name, provided that firm letterhead and other professional listings enumerating the members of the firm made clear the jurisdictional limits on those attorneys not licensed to practice in all jurisdictions where the firm had an office. The Opinion found no basis to distinguish between law firms organized as corporations and those organized as partnerships. See DC Ethics Opinion 34 (1977) (approving multi-jurisdiction firm's use of firm name that included names of partners not licensed to practice in the District of Columbia; all "enumerations" of the members and associates of the firm on letterhead and other listings must make clear the pertinent jurisdictional limitations).
DC Ethics Opinion 47 (1978) stated that it was not necessary for a firm with offices in the District of Columbia to indicate on its letterhead that none of the lawyers in the firm were admitted to practice in any other jurisdiction, even when dealing with a client who resided outside of the District of Columbia.
7.5:400 Use of the Name of a Public Official
There appear to be no pertinent DC court decisions or ethics opinions on this subject.
7.5:500 Misleading Designation as Partnership, etc.
DC Ethics Opinion 303 (2001) [which is more fully discussed under 7.1:220 above] discusses the ethical restrictions potentially affecting the sharing of office space by unaffiliated lawyers, including the possibility that the manner in which their offices and letterhead are labeled may fall afoul of Rule 7.5(d).
DC Ethics Opinion 278 (1998), addressing the question whether a member of the DC Bar could practice law in a partnership or other professional association with a lawyer licensed to practice in a foreign jurisdiction but not in any U.S. jurisdiction, referred to the possible application of Rule 7.5(d) in such circumstances. (The Opinion is discussed somewhat more fully under 5.1:200, above.)
As described above, DC Ethics Opinion 254 (1995) discussed use of the terms "limited liability company," "limited liability partnership," and "professional limited liability company" in a firm name, as well as the abbreviations of these terms. The Opinion overruled an earlier ethics opinion and permitted law firms to abbreviate those designations in their letterheads and other communications to potential clients. There do not appear to be any other pertinent ethics opinions or any pertinent DC court decision on the subject.
Comment  to Rule 7.5, however, explains that lawyers sharing office facilities, but who are not in fact partners, may not designate themselves as partners.
7.6:100 Comparative Analysis of DC Rule
This Model Rule was adopted by the ABA House of Delegates in 2000, on the recommendation of the ABA Standing Committee on Ethics and Professional Responsibility, the ABA Sections of Business Law and of State and Local Government Law and the Association of the Bar of the City of New York. The Ethics 2000 Commission did not propose any changes in the Rule. DC Rules Review Committee did not recommend that such a rule be added to the DC Rules because the District of Columbia does not utilize an election process to select judges and there did not appear to be any evidence of abuse in obtaining government legal employment. The Committee also noted that neither of the District of Columbia's neighboring States, Maryland and Virginia, had adopted such a rule.