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Texas Disciplinary Rules of Professional Conduct
Comment - Rule 7.07
1. Rule 7.07 covers the filing requirements for public media advertisements (see Rule 7.04) and written solicitations (see Rule 7.05). Rule 7.07(a) deals with those written solicitations sent by a lawyer to one or more specified prospective clients. Rule 7.07(b) deals with advertisements in the public media. Each provision allows the Bar to charge a fee for reviewing submitted materials, but requires that fee be set solely to defray the expenses of enforcing those provisions.
2. Copies of non-exempt written solicitations or advertisements in public media must be provided to the Advertising Review Committee of the State Bar of Texas either in advance or concurrently with dissemination, together with the fee required by the State Bar of Texas Board of Directors. Presumably, the Advertising Review Committee will report to the appropriate grievance committee any lawyer whom it finds from the reviewed products has disseminated an advertisement in the public media or written solicitation that violates Rules 7.02, 7.03, 7.04, or 7.05, or, at a minimum, any lawyer whose violation raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. See Rule 8.03(a).
3. Paragraphs (a) and (b) do not require that a lawyer submit a copy of each and every written solicitation letter a lawyer sends. If the same form letter is sent to several people, only a representative sample of each form letter, along with a representative sample of the envelopes used to mail the letters, need be filed.
4. A lawyer wishing to do so may secure an advisory opinion from the Advertising Review Committee concerning any proposed advertisement in the public media or any written solicitation in advance of its first use or mailing by complying with Rule 7.07(c). This procedure is intended as a service to those lawyers who want to resolve any possible doubts about their proposed advertisements' or written solicitations' compliance with these Rules before utilizing them. Its use is purely optional. No lawyer is required to obtain advance clearance of any advertisement or written solicitation communication from the State Bar. Although a finding of noncompliance by the Advertising Review Committee is not binding in a disciplinary proceeding, a finding of compliance is binding in favor of the submitting lawyer, as long as the lawyer's presentation to the Advertising Review Committee in connection with that advisory opinion is true and not misleading.
5. Under its Internal Rules and Operating Procedures, the Advertising Review Committee is to complete its evaluations no later than 25 days after the date of receipt of a filing. The only way that the Committee can extend that review period is to: (1) determine that there is reasonable doubt whether the advertisement or written solicitation communication complies with these Rules; (2) conclude that further examination is warranted but cannot be completed within the 25-day period; and (3) advise the lawyer of those determinations in writing within that 25-day period. The Committee's Internal Rules and Operating Procedures also provide that a failure to send such a communication to the lawyer within the 25-day period constitutes approval of the advertisement or written solicitation communication. Consequently, if an attorney submits an advertisement in the public media or written solicitation communication to the Committee for advance approval not less than 30 days prior to the date of first dissemination as required by these Rules, the attorney will receive an assessment of that advertisement or communication before the date of its first intended use.
6. Consistent with the effort to protect the first amendment rights of lawyers while ensuring the right of the public to be free from misleading advertising and the right of the Texas legal profession to maintain its integrity, paragraph (d) exempts certain types of advertisements and written solicitations prepared for the purpose of seeking paid professional employment from the filing requirements of paragraphs (a) and (b). Those types of communications need not be filed at all if they were not prepared to secure paid professional employment.
7. For the most part, the types of exempted advertising listed in subparagraphs (d)(1)-(5) are objective and less likely to result in false, misleading or fraudulent content. Similarly the types of exempted written solicitations listed in paragraphs (d)(6)-(8) are those found least likely to result in harm to the public. See Rule 7.05(e), and comment 5 to Rule 7.05. The fact that a particular advertisement or written solicitation made by a lawyer is exempted from the filing requirements of this Rule does not exempt a lawyer from the other applicable obligations of these Rules. See generally Rules 7.01 through 7.06.
8. Paragraph (e) does not empower the Advertising Review Committee to seek information from a lawyer to substantiate statements or representations made or implied in advertisements or written communications that do not seek to obtain paid professional employment for that lawyer.