Supreme Court Rules - Rule 4 - Rules Governing the Missouri Bar and the Judiciary - Rules of Professional Conduct: Information About Legal Services

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Supreme Court Rules

		Section/Rule:	4- 7. 2
Subject:	Rule 4 - Rules Governing the Missouri Bar and the Judiciary - Rules of Professional Conduct	Publication / Adopted Date:	September 28, 1993
Topic:	Information About Legal Services - Advertising	Revised / Effective Date:	July 1, 2010

RULE 4-7.2: ADVERTISING

(a) Subject to the requirements of Rule 4-7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio, or television, or through direct mail advertising distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter.

(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. The record shall include the name of at least one lawyer responsible for its content unless the advertisement or written communication itself contains 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 the lawyer's services, except that:

(1) a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule 4-7.2;

(2) a lawyer may pay the reasonable cost of advertising, written communication, or other notification required in connection with the sale of a law practice as permitted by Rule 4-1.17; and

(3) a lawyer may pay the usual charges of a qualified lawyer referral service registered under Rule 4-9.1 or other not-for-profit legal services organization.

(d) A lawyer may not, directly or indirectly, pay all or a part of the cost of an advertisement in the public media unless such advertisement discloses the name and address of the financing lawyer, the relationship between the advertising lawyer and the financing lawyer, and whether the advertising lawyer is likely to refer cases received through the advertisement to the financing lawyer. Similarly, in any communications such as television, radio, or other electronic programs purporting to give the public legal advice or legal information, for which programs the broadcaster receives any remuneration or other consideration, directly or indirectly, from the lawyer who appears on those programs, the lawyer shall conspicuously disclose to the public the fact that the broadcaster has been paid or receives consideration from the lawyer appearing on the program.

(e) A lawyer or law firm shall not advertise the existence of any office other than the principal office unless:

(1) that other office is staffed by a lawyer at least three days a week, or

(2) the advertisement states:

(A) the days and times during which a lawyer will be present at that office, or

(B) that meetings with lawyers will be by appointment only.

(f) Any advertisement or communication made pursuant to this Rule 4-7.2, other than written solicitations governed by the disclosure rules of Rule 4-7.3(b), shall contain the following conspicuous disclosure:

“The choice of a lawyer is an important decision and should not be based solely upon advertisements.”

"Conspicuous" means that the required disclosure must be of such size, color, contrast, location, duration, cadence, or audibility that an ordinary person can readily notice, read, hear, or understand it.

(g) The disclosures required by Rule 4-7.2(e) and (f) need not be made if the information communicated is limited to the following:

(1) the name of the law firm and the names of lawyers in the firm;

(2) one or more fields of law in which the lawyer or law firm practices;

(3) the date and place of admission to the bar of state and federal courts; and

(4) the address, including e-mail and web site address, telephone number, and office hours.

(h) Any words or statements required by Rules 4-7.1, 4-7.2, or 4-7.3 to appear in an advertisement or direct mail communication must appear in the same language in a which the advertisement or direct mail solicitation appears. If more than one lanquage is used in an advertisement or direct mail communication, any words or statements required by Rules 4-7.1 to 4-7.6 must appear in each language used in the advertisement or direct mail communication.

(i) The provisions of Rule 4-7.2 shall not apply to services provided by a not-for-profit organization funded in whole or in part by the Legal Services Corporation established by 42 U.S.C. section 2996(b) or to pro bono services provided free of charge by a not-for-profit organization, a court-annexed program, a bar association, or an accredited law school.

The provisions of Rule 4-7.2 shall not apply to law firms or lawyers who promote, support or publicize through advertising that substantially and predominantly features any of the following: legal services corporation; community or other non-profit organization; recognized community events or celebrations; institutions; entities; or individuals other than themselves.

(Adopted Aug. 7, 1985, eff. Jan. 1, 1986. Amended June 21, 1994, eff. Jan. 1, 1995; Dec. 1, 1994, eff. July 1, 1995; Aug. 1, 1995, eff. Jan. 1, 1996; Nov. 25, 2003, eff. Jan. 1, 2004; Sept. 19, 2005, eff. Jan. 1, 2006; March 1, 2007, eff. July 1, 2007; Nov. 25, 2009, eff. July 1, 2010.)

COMMENT

[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

Paying Others to Recommend a Lawyer.

[2] A lawyer is allowed to pay for advertising permitted by this Rule 4-7.2, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer’s services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral programs and pay the usual fees charged by such programs. Rule 4-7.2(c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule. Rule 4-7.2(c) also does not prohibit paying a person for making a testimonial or endorsement in compliance with Rule 4-7.1(h).

SUPPLEMENTAL MISSOURI COMMENT

Advertising concerning a lawyer's services should be motivated by a desire to educate the public to an awareness of legal needs and to provide information relevant to the selection of appropriate counsel. Information communicated in advertising should be disseminated in an objective and understandable fashion and should be relevant to a prospective client's ability to choose a lawyer. A lawyer should strive to communicate such information without undue emphasis upon advertising stratagems, which serve to hinder rather than to facilitate intelligent selection of counsel. Tasteful advertising is a matter of subjective interpretation. However, in all communications concerning a lawyer's services, a lawyer should avoid advertising that serves to denigrate the dignity of the profession or trust in courts, of which every lawyer functions as an officer.

Rule 4-7.2(d) and (e) have been added to jointly address the problem of advertising that experience has shown misleads the public concerning the location where services will be provided or the lawyer who will be performing these services. Together they prohibit the same sort of “bait and switch” advertising tactics by lawyers that are universally condemned.

Rule 4-7.2(e) also prohibits advertising the availability of a satellite office that is not staffed by a lawyer at least on a part-time basis. Rule 4-7.2 does not require, however, that a lawyer or firm identify the particular office as its principal one. Experience has shown that, in the absence of such regulation, members of the public have been misled into employing a lawyer in a distant city who advertises that there is a nearby satellite office, only to learn later that the lawyer is rarely available to the client because the nearby office is seldom open or is staffed only by lay personnel.

Rule 4-7.2(e) is not intended to restrict the ability of legal services programs to advertise satellite offices in remote parts of the program’s service area even if those satellite offices are staffed irregularly by attorneys. Otherwise, low-income individuals in and near such communities might be denied access to the only legal services truly available to them.

When a lawyer or firm advertises, the public has a right to expect that lawyer or firm will perform the legal services. Experience has shown that lawyers not in the same firm may create a relationship wherein one will finance advertising for the other in return for referrals. Nondisclosure of such a referral relationship is misleading to the public. Accordingly, Rule 4-7.2(d) prohibits such a relationship between an advertising lawyer and a lawyer who finances the advertising unless the advertisement discloses the nature of the financial relationship between the two lawyers. Rule 4-7.2(d) also requires disclosure if a broadcaster receives remuneration from a lawyer appearing on any television, radio, or other electronic program purporting to give the public legal advice.

In the case of television, the disclosure required by Rule 4-7.2(f) may be made orally or in writing. In the case of radio, the disclosure must be made orally. The disclosure required by Rule 4-7.2(f) may, at the option of the advertiser, include the following language: “This disclosure is required by rule of the Supreme Court of Missouri.” This disclosure is only required for advertisements in Missouri.

Disclosures that are large in size, are emphasized through a sharply contrasting color, and, in the case of television advertisements, remain visible or audible for a sufficiently long duration are likely to be more effective than those lacking such prominence. The disclosure should be prominent enough that the ordinary person will actually see and understand it in the context of the actual advertisement. Disclosures generally are more effective when they are made in the same mode (visual or oral) in which the claim necessitating the disclosure is presented.

Even if a disclosure is large in size and long in duration, other elements of an advertisement may distract the ordinary person so that they may fail to notice the disclosure. The advertisement should take care not to undercut the effectiveness of disclosures by placing them in competition with other arresting elements of the advertisement.