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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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Pennsylvania Legal Ethics
7.1:100 Comparative Analysis of Pennsylvania Rule
Rule 7.1 of the Pennsylvania Rules of Professional Conduct parallels MR 7.1(a)-(c) with two exceptions. Pennsylvania expands subparagraph (b) of the Model Rules by providing examples of prohibited communications which create unjustified expectations about results "such as the amount of previous damage awards, the lawyer's record in obtaining favorable verdicts, or client endorsements..." The purpose of this expansion is to clarify that the results obtained on behalf of one client without reference to specific factual and legal circumstances may be misleading as indicators of the results another client might expect. Additionally, Pennsylvania adds subparagraph (d) to Rule 7.1. This subparagraph codifies existing case law by prohibiting subjective, non-measurable, claims as to the quality of the lawyer's services or his or her credentials.
DR 2-101 provides that "[n]o lawyer shall not . . . use . . . any form of public communication containing a false, fraudulent, misleading statement or claim. . ." With respect to Rule 7.1(a)-(d), there is no direct code counterpart.
7.1:200 Lawyer Advertising--In General
Similar to most jurisdictions, Pennsylvania previously banned lawyer advertising in any form until the United States Supreme Court held that such total bans violated the United States Constitution. See Bates v. State Bar (1977). The United States Supreme Court, however, also held that reasonable regulation of attorney advertising is permissible. Id. Since the Supreme Court's decision, the Pennsylvania Rules of Professional Conduct have contained provisions restricting and regulating attorney advertising. Portions of Pennsylvania's prior rules were held to be unconstitutional. See Spencer v. Honorable Justices of the Supreme Court, (E.D. Pa. 1984), aff'd without op. (3d. Cir. 1985). The present rules were adopted in 1994. They have not been the subject of a constitutional challenge.
The rule requires that description of a law firm be accurate and truthful. A law firm may use a trade name to advertise or describe its services, to avoid being misleading, however, this trade name must be used for all purposes. Phila. B.A. Op. 94-26 (1994). A law firm may only designate a lawyer as "of counsel" where there is a close and ongoing relationship between the lawyer and the firm. Pa. Eth. Op. 89-98 (undated). Public communications, including letterhead, which refer to non-lawyers such as interpreters or paralegals must make clear their status as a non-attorney. Phila. Eth. Op. 92-21 (1992). A Law firm cannot untruthfully imply that any member of its firm would have any special influence in regard to a particular matter. Id. The use of a geographic region to describe a lawyer's practice could misleadingly create a perception that the lawyer is associated with a municipality unless the advertising contains a notation that the practice is "a private law office". Phila. Eth. Op. 95-17 (1995). A lawyer's regular presence in an office in which he is not qualified to practice could amount to a misleading communication about the lawyer's services in violation of the rule. Phila. B.A. Op. 94-16 (1995).
Client testimonials about the outcome of the case or the results achieved are prohibited because they can create unjustified expectations in the client. Pa. Eth. Op. 88-143. Prohibited testimonials include generalized subjective descriptions such as "a good result". Phila. Eth. Op. 91-17 (1992). Lawyer advertisements and communications, however, can contain truthful client testimonials about the nature of the lawyer's work such as "the lawyer has always returned my phone calls." Id.
A lawyer can only make objective, measurable comparisons to another lawyer. Formerly associated lawyers who are discontinuing their association must ensure that all communications with clients comply with the requirement of the Rule. Phila. Eth. Ops. 92-8 (undated), 94-30 (1994). A Lawyer may not use inherently subjective terms such as "experienced", "expert", "highly qualified" or "competent" to describe his services. See Spencer v. Honorable Justices of the Supreme Court, 579 F. Supp. 880 (E.D. Pa. 1984), aff'd. without op., 760 F.2d 261 (3d. Cir. 1985).
7.2:100 Comparative Analysis of Pennsylvania Rule
Rule 7.2 of the Pennsylvania Rules of Professional Conduct incorporates, with a few minor changes, the provisions of MR 7.2(a-d). The Pennsylvania rule, however, provides additional restrictions upon the form and content of attorney advertising. The complete text of Rule 7.2 is as follows:
Rule 7.2 ADVERTISING
(a) Subject to the requirements of Rule 7.1 a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communications not within the purview of Rule 7.3.
(b) A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used. This record shall include the name of at least one lawyer responsible for its content.
(c) A lawyer shall not give anything of value to a person for recommending that lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.
(d) No advertisement or public communication shall contain an endorsement by a celebrity or pulbic figure.
(e) An advertisement or public communication that contains a paid endorsement shall disclose that the endorser is being paid or otherwise compensated for his or her appearance or endorsement.
(f) A non-lawyer shall not portray a lawyer or imply that he or she is a lawyer in any advertisement or public communication; nor shall an advertisement or public communication portay a fictitious entity as a law firm, use a fictitious name to refer to lawyers not associated together in a law firm if that is not the case.
(g) An advertisement or public communication shall not contain a portrayal of a client by a non-client; the re-enactment of events or scenes; or, pictures or persons, which are not actual or authentic, without a disclosure that such a depiction is a dramatization.
(h) Every advertisement that contains information about the lawyer's fee, shall be subject to the following requirements:
(1) Advertisements that state or indicate that no fee shall be charged in the absence of recovery shall disclose that the client will be liable for certain expenses in addition to the ffe, if such is the case.
(2) A lawyer who advertises a specific fee or hourly rate or range of fees for a particular service shall honor the advertised fee for at least ninety (90) days; provided that for advertisements in media published annually, the advertised fee shall be honored for no less than one (1) year following initial publication unless otherwise stated as part of the advertisement.
(i) All advertisements and written communications shall disclose the geographic location, by city or town, of the office in which the lawyer or lawyers who will actually perform the services advertised principally practice law. If the office or location is outside the city or town, the county in which the office is located must be disclosed.
(j) A lawyer shall not, directly or indirectly (whether through an advertising cooperative or otherwise), pay all or any part of the costs of an advertisement by a lawyer not in the same firm or by any for-profit entity other than the lawyer's firm, unless the advertisement discloses the name and principle office address of each lawyer or law firm involved in paying for the advertisement and, if any lawyer or law firm will receive referrals from the advertisement, the circumstances under which referrals will be made and the basis and criteria on which the referral system operates.
(k) A lawyer shall not, directly or indirectly, advertise that the lawyer or his or her law firm will only accept, or has a practice limited to, particular types of cases unless the lawyer or his or her law firm handles, as a principle part of his, her or its practice, all aspects of the cases so advertised from intake through trial. If a lawyer or law firm advertises for a particular type of case that the lawyer or law firm ordinarliy does not handle from intake through trial, that fact must be disclosed. A lawyer or law firm shall not advertise as a pretext to refer cases obtained from advertising to other lawyers.
With regard to Rule 7.2(c), DR 2-103(B) provides that "[a] lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment . . . except he may pay the usual and reasonable fees for dues" charged by legal aid and other legal services organizations. DR 2-101(I) provides that "[a] lawyer shall not compensate or give any thing of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item." The Code contains no counterparts to the remaining provisions of Rule 7.2.
7.2:200 Permissible Forms of Lawyer Advertising
Pennsylvania allows lawyers to advertise by various means except direct contact as prohibited by Rule 7.3. Lawyers are permitted to advertise "1-900" numbers for legal services provided that any calls are prescreened, free of charge, to determine that the lawyer is competent to handle the inquiry. Pa. Eth. Op. 90-156 (1991). Targeted direct mail which summarizes a lawyer's recent work is permissible so long as such communication is not false or misleading and otherwise complies with the rules. Pa. Eth. Op. 96-33 (1996). A lawyer is permitted to distribute prepaid calling cards to present and potential clients provided that the card is restricted in that it can only be used to make calls to the lawyer. Phila. Eth. Op. 95-10 (1995). Lawyer is permitted to give present and potential clients a coupon or discount for future legal services. Phila. Eth. Op. 92-12 (1992). Flyers distributed outside a court building by a non-profit organization are not prohibited by the rules, provided that the flyers comply with Rule 7.1 and the flyers are not a subterfuge for the lawyer to obtain clients in violation of Rule 7.3 and Rule 8.4(a). Phila. Eth. Op. 95-20 (1995).
7.2:300 Retaining Copy of Advertising Material
Rule 7.2(b) requires that a record of all advertising materials be kept for two years from the last dissemination to facilitate enforcement of the rules. The Pennsylvania version of the rule further requires that a particular attorney or attorneys be designated as responsible for the advertisement.
7.2:400 Paying to Have Services Recommended
Subject to the limitations set forth in Rule 7.2(j), a lawyer is allowed to pay for permissible advertising but is otherwise not permitted to pay another person for channeling professional work. See 1994 Comment to Rule 7.2. Thus, Attorney renting office space from medical-services provider cannot pay to the medical provider any percentage of the lawyer's fee relating to referrals by the provider to the lawyer's personal injury practice. Pa. Eth. Op. 95-106 (1995). The rule restricts even non-monetary payments, e.g, distribution of prepaid calling cards that allow unrestricted use of the card violates Rule 7.2(c). Phila. Eth. Op. 95-10 (1995). But, a lawyer is permitted to advertise that he will prepare a free living will, provided the client had made a charitable contribution to a designated charity within the preceding three months. Phila. Eth. Op. 91-34 (1991).
7.2:500 Identification of a Responsible Lawyer
Rule 7.2(b) requires that the record for each advertisement "include the name of at least one lawyer responsible for its content."
7.3:100 Comparative Analysis of Pennsylvania Rule
Pennsylvania has adopted MR 7.3 with a few variations. Pennsylvania has an additional prohibition against contacting prospective clients when "the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer." Further, the PA rule does not contain subparagraphs (c) or (d) of MR 7.3. Subparagraph (c) requires that the words "Advertising Material" be placed on certain solicitations, and subparagraph (d) allows lawyers to participate in group legal service plans which use in-person or telephone contact to solicit memberships from people who are not known to need legal services in a matter covered by the plan.
DR 2-104 provided, with a few exceptions, that "[a] lawyer who has given in-person unsolicited advice to a layperson that he should obtain counsel or take legal action shall not accept employment resulting from that advice... ." DR 2-104 was suspended by Order of the PA Supreme Court, April 26, 1984.
7.3:200 Prohibition of For-Profit In-Person Solicitation
A lawyer practicing with a small firm who also operates a claims processing business with his wife, a non-lawyer, may not accept and represent clients he has solicited or who have been referred to him through the claims processing company, because the company is an "intermediary" for purposes of Rule 7.3(a). Phila. B.A. Prof. Guid. Comm., Op. 91-13 (1991).
A law firm may not entertain a doctor and his wife at dinner in order to obtain personal injury client referrals from the doctor. Such conduct violates the rules against solicitation of legal business through an intermediary and giving something of value for recommending a lawyer's services. Pa. Eth. Op. 91-92 (1991).
When a partner leaves a law firm and clients call asking to speak with that partner, the law firm must give the ex-partner's new business address and/or phone number and may also ask the caller if the call relates to a legal matter and, if so, may propose the firm's assistance to the caller. However, if the caller resists the invitation of the firm or otherwise makes it clear that the caller only wants to speak with the ex-partner, continued persistence by the firm may violate Rule 7.3(b) which prohibits direct solicitation of persons who have displayed disinclination to deal with the firm and further proscribes communications involving duress, coercion, or harassment. Phila. B.A. Prof. Guid. Comm., Op. 94-30 (1994).
A lawyer may offer a class that gives general information about wills where attendees who wish more individual advice may speak with the lawyer after class and receive a discount on preparation of a will. The lawyer must be careful not to engage in soliciting clients in-person and must be sure that the sponsoring organization does not do so on the lawyer's behalf. Pa. Eth. Op. 93-42A (1993).
A lawyer who is also Executive Director of a nonprofit organization that advocates the rights of a special interest group may contact members and potential members of the organization in writing to inform them of his/her professional services, but neither the lawyer nor the organization is allowed to contact members or potential members of the organization in person or by telephone because there is no "prior professional relationship." with the members. Phila. B.A. Prof. Guid. Comm., Op. 96-11 (1996).
7.3:300 Regulation of Written and Recorded Solicitation
A law firm may participate in a telephone information network and advertise the number of years the various firm partners have been in practice and the year the firm was established. The ad must state the city or town in which the lawyers who will perform the services are located and must give their addresses. If the ad is disseminated in another county, the county in which the lawyers practice must also be noted. Pa. Eth. Op. 95-8A (1995).
7.3:400 Disclaimers for Written and Recorded Solicitation
A lawyer's direct mail solicitation letters must avoid statements such as "There is no charge for your initial 20-minute consultation" unless he also indicates that the potential client may be charged attorney's fees and costs if representation is undertaken. Similarly, the lawyer should avoid a statement in the letters such as "I would never let you down," as this may be misleading. Pa. Eth. Op. 91-96 (1991).
7.3:500 Solicitation by Prepaid and Group Legal Services Plans
7.4:100 Comparative Analysis of Pennsylvania Rule
PA-Rs 7.4(a)(1) and (2) are substantially similar to MR 7.4(a) and (b). However, PA-R 7.4(a)(3) and (4) are somewhat different. PA-R 7.4(a)(3) provides that "a lawyer who has been certified by an organization approved by the Supreme Court of Pennsylvania as a certifying organization in accordance with subparagraph (b) may advertise the certification during such time as the certification of the lawyer and the approval of the organization are both in effect." PA-R 7.4(a)(4) provides "a lawyer may communicate that the lawyer is certified in a field of practice only when that communication is not false or misleading and that certification is granted by the Supreme Court of Pennsylvania." PA-R 7.4 also varies in that it provides a procedure in subparagraph (b) by which the Supreme Court of Pennsylvania may approve an organization that certifies lawyers for purposes of subparagraph (a).
DR 2-105(A) provides that "A lawyer shall not hold himself out publicly as ... a specialist . . . except as follows:
"(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation 'Patents', 'Patent Attorney', 'Patent Lawyer', or 'Registered Patent Attorney' or any combination of those terms, on his letterhead and office sign. A lawyer engaged in the trademark practice may use the designation "Trademarks", "Trademark Attorney", or "Trademark Lawyer", or any combination of those terms, on his letterhead and office sign, and a lawyer engaged in the admiralty practice may use the designation "Admiralty", "Proctor in Admiralty", or "Admiralty Lawyer", or any combination of those terms, on his letterhead and office sign ... ."
(3) A lawyer who is certified as a specialist in a particular field of law or law practice by [the authority having jurisdiction under state law over the subject of specialization by lawyers] may hold himself out as such, but only in accordance with the rules prescribed by that authority."
EC 2-14 states that "[i]n the absence of state controls to insure the existence of special competence, a lawyer should not be permitted to hold himself out as a specialist or as having official recognition as a specialist, other than in the fields of admiralty, trademark, and patent law where a holding out as a specialist historically has been permitted."
7.4:200 Regulation of Claims of Certification and Specialization
A lawyer may not send letters to clients of the firms at which he used to work which compare his expertise in the area of worker's compensation to those firms, because Rule 7.4 prohibits either the express use of the word "specialist" (with a few exceptions that do not apply here) or any implication that an attorney is a specialist. Phila. B.A. Prof. Guid. Comm., Op. 94-5 (1994).
A law practice's use of trade names such as "Med Law Associates" or "Medical Malpractice Clinic" would violate Rule 7.4 because the term implies a specialty in medical malpractice cases and also that there is a medical doctor or personnel on staff in the law office. However, a name such as "Medical Malpractice Associates" would be permissible. Phila. B.A. Prof. Guid. Comm., Op. 89-21 (1989).
A lawyer may include a statement on letterhead and business cards such as "NFL Players Association Contract Advisor," provided that the statement is true. Pa. Eth. Op. 91-19 (1991).
A lawyer who is also a certified public accountant may indicate on biographical statements that he is both a JD and a CPA provided that he also indicates that his accounting and legal practices are separate. The lawyer may use letterhead in his legal practice that includes his name, a designation such as "attorney at law", the address of his law office, and a statement that his law practice is "limited to" or "concentrates in" tax, estate planning, and probate matters. Pa. Eth. Op. 91-50 (undated).
A lawyer may indicate that he is a retired Navy Judge Advocate by placing "CDR, JAGC, USNR (Ret.)" on his letterhead and business cards. Pa. Eth. Op. 94-10 (1994).
7.5:100 Comparative Analysis of Pennsylvania Rule
PA-R 7.5 is substantially similar to MR 7.5, but PA-R 7.5(a) has an additional provision which states that "[i]f otherwise lawful a firm may use as, or continue to include in, its name, the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession."
With regard to Rule 7.5(a), DR 2-102(B) provides that "[a] lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that ... a firm may use as ... its name, the name or names of one or more decreased [sic] or retired members of the firm or of a predecessor firm in a continuing line of succession."
With regard to Rule 7.5(b), DR 2-102(D) provides that "[a] partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction."
With regard to Rule 7.5(c), DR 2-102(B) provides 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 ... during any significant period in which he is not actively and regularly practicing law as a member of the firm... ."
7.5:200 Firm Names and Trade Names
A law practice's use of trade names such as "Med Law Associates" or "Medical Malpractice Clinic" would violate Rule 7.4 because the term implies a specialty in medical malpractice cases and also that there is a medical doctor or personnel on staff in the law office. However, a name such as "Medical Malpractice Associates" would be permissible. Phila. B.A. Prof. Guid. Comm., Op 89-21 (1989).
7.5:300 Law Firms with Offices in More Than One Jurisdiction
A Pennsylvania lawyer hired by a NJ firm as a partner to handle work in Pennsylvania may use letterhead showing all of the firm members (partners and associates) provided the jurisdictional limitations of those attorneys who are not admitted to practice in Pennsylvania are clearly delineated on the letterhead. Alternately, the lawyer may use letterhead with only the firm name and the Pennsylvania address without individually listing the other partners or associates in the firm. Use of letterhead with only the firm name on it, where the firm name includes partners not admitted in Pennsylvania, does not require delineation of the jurisdictional limitation of those partners. Phila. B.A. Prof. Guid. Comm., Op. 92-19 (1992).
A law firm that is affiliated with a firm in England may state this fact on its letterhead; however, the firm may not list the English attorneys on the firm's letterhead. Pa. Eth. Op. 91-122 (1991).
7.5:400 Use of the Name of a Public Official
There are no PA cases on this issue.
7.5:500 Misleading Designation as Partnership, etc.
A professional corporation may not continue to use a lawyer's name in the firm name after the lawyer ceases to be a shareholder in the firm, even though the lawyer continues to be "Of Counsel" to the firm for a period, because to do so would be misleading in violation of Rule 7.5(d). However, the firm letterhead may indicate the former firm name, in parentheses, under the new firm name. Phila. B.A. Prof. Guid. Comm., Op. 88-31 (1988). But see Pa. Eth. Op. 94-179 (1994) (a law firm may continue to practice law under the same name while one of the named partners is now identified as "Of Counsel" on the firm's letterhead).
A professional corporation may not include in its firm name the name of an associate employee who is not a shareholder in the corporation, because this designation is misleading as it implies that the associate lawyer has an ownership interest in the professional corporation. Pa. Eth. Op. 90-171 (undated).