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Although the case was dismissed on jurisdictional grounds, the subsequent adoption of Rule 8.5 of the Maryland Rules of Professional Conduct would permit a sanction against an out of state attorney who advertised in such a manner today. 10 While jurisdictional limitations should be set forth


clearly on any internet advertisement, if one’s purpose is to attract cross border clients, a prudent lawyer will research other jurisdictions’ restrictions on advertising and cross border practice. While Maryland’s Rules are not atypical, even our rules have some unusual requirements. For instance, an advertisement indicating that no fee will be charged in the absence of a recovery must disclose whether the client will be liable for expenses.11


Maryland lawyers may


communicate that they do or do not practice in certain fields, but are prohibited from holding themselves out publicly as “specialists.”12


Other states have unique restrictions and their


rules must be consulted if the lawyer seeks to solicit clients for representation in those jurisdictions.13 Some familiar means of marketing are not exclusively


found on the Internet. Perhaps the best example is the use of client testimonials. Te Comment to Rule 7.1 addresses the prohibition of the rule with respect to statements which likely create “unjustified expectations,” and states that such statements would ordinarily preclude information about results obtained on behalf of clients such as the amount of damage awards, the record of the lawyer’s favorable verdicts and client endorsements. Te Maryland State Bar Association Ethics Committee specifically addressed these


A lawyer, on behalf of himself, his partner, associate, or any other lawyer affiliated with him or his firm, shall not personally, through an advertising group, lawyer referral service, or otherwise, prepare, cause to be prepared, use, or participate in the use of any advertisement or other public communication containing information about the services of lawyers or law firms which: 1. Contains a misstatement of fact; 2. Is likely to mislead or deceive because in context it makes only a partial disclosure of relevant facts; 3. Is intended or is likely to create false or unjustified expectations of favorable results; 4. Contains any other statement that is intended or likely to cause a reasonable person to misunderstand or be deceived; or 5. Constitutes, is part of, or is a device for carrying out, an otherwise unlawful act. Lawyers, including those participating in an advertising group or lawyer referral service, shall be personally responsible for compliance with the above requirements and shall be prepared to substantiate such compliance to the Attorney Grievance Commission of Maryland.


10 Rule 8.5. Disciplinary Authority; Choice of Law. a. Disciplinary Authority. 1. A lawyer admitted by the Court of Appeals to practice in this State is subject to the disciplinary authority of this State, regardless of where the lawyer's conduct occurs.


2. A lawyer not admitted to practice in this State is also subject to the disciplinary authority of this State if the lawyer: i. provides or offers to provide any legal services in this State, ii. holds himself or herself out as practicing law in this State, or iii. has an obligation to supervise or control another lawyer practicing law in this State whose conduct constitutes a violation of these Rules. Cross-References. Md. Rule 16- 701(a).


3. A lawyer may be subject to the disciplinary authority of both this State and another jurisdiction for the same conduct.


b. Choice of Law. In any exercise of the disciplinary authority of this State, the rule of professional conduct to be applied shall be as follows: 1. for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and


2. for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.


11 Rule 7.2 (e), supra. 12 Rule 7.4 (a), supra. 13 Hawaii, for example, prohibits solicitation of employment by email or fax and other forms of written communication are very tightly restricted. Haw. Rules of Prof. Conduct Rule 7.3 (f ) (1) –(5). Florida, Mississippi, New Jersey and Texas do not require that an attorney client relationship be formed, nor a fee paid, before finding an individual has engaged in the practice of law. Adrienne E. Carr, Blogger Beware: Ethical Considerations for Legal Blogs, 14 Rich.J.L. & Tech. 5 (2007)


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79 West Street / Annapolis, MD 21401 / 410-269-1484 / 800-754-7029 concerns in a number of Opinions. 14 Undoubtedly, there


is consensus that even a true statement of a recently won verdict “could lead members of the public to erroneously conclude that similar results can be obtained for them… Each client’s needs are unique and client endorsements have the undesirable effect of treating legal services like soap.”15 Nevertheless, the outright prohibition of the assertion of the lawyer’s prior favorable accomplishments is tempered by the Comment’s endorsement of the use of a qualifier expressly and conspicuously stated: “Each case is different and the past record is no assurance that the lawyer will be successful in reaching a favorable result in any future case.” Internet advertising that contains references to the lawyer or law firm’s past accomplishments must contain this proviso in a conspicuous place. When the Ethics Committee addressed the question of the use of the disclaimer in a cover letter when the firm’s brochure contained statements of its prior successes, it opined that this was insufficient; the brochure itself had to contain the disclaimer.16


Similarly, in an Internet


advertisement, such disclaimers should be conspicuous on the same page as the testimonial or recitation of prior achievements. Of course, any testimonial as to the lawyer’s services by one not a bona fide pre-existing client or by one who has not in fact benefited from the lawyer’s services will


14 See, for example, MSBA Committee on Ethics, Ethics Dockets. 98-19, 92-09,91-35, 91-16. 15 MSBA Committee on Ethics, Ethics Docket 92-09. 16 MSBA Committee on Ethics, Ethics Docket 98-19.


Trial Reporter / Spring 2010 17


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