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Legal Marketing


Practitioners’ Guidelines for Attorney


Advertising Stephan Y. Brennan Introduction


T “Communications of Fields of Practice” is addressed


he practice of law is a profession, but it is also a business in which attorneys and law firms compete for clients. Thus, most law firms and


attorneys advertise their services through one or more means. Rules 7.1 through 7.5 of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) govern lawyers’ conduct with regard to “Information About Legal Services,” including advertising. Some attorneys emphasize advertisements through


outlets like telephone directories or legal directories, newspapers or magazines, radio and television, or “out- door” advertising such as billboards or signs on buses. All of these are permissible means through which “a lawyer may advertise services through public media. . .” See, MLRPC 7.2(a). Other advertising “communica- tions not involving in-person” contact, such as distribu- tion of flyers or mailings, are also permissible under MLRPC 7.2(a). Direct contact that is intended to “solicit


professional employment from a prospective client” is governed by MLRPC 7.3. Under MLRPC 7.3(a) there are severe constraints not only on “in-person” solicitation of prospective clients, but also “live telephone or real- time electronic contact.” Even “when not otherwise prohibited by paragraph (a),” direct contact with prospective clients “by written, recorded or electronic communication or by in-person telephone or real-time electronic contact” is subject to substantial limitations under MLRPC 7.3(b).


in MLRPC 7.4. “Firm Names and Letterheads” falls within MLRPC 7.5. Moreover, all attorney advertising, irrespective of


type, must comply withMLRPC7.1, which is a broader rule that establishes the acceptable parameters for all types of “Communications Concerning a Lawyer’s Services.” Stated broadly,MLRPC7.1 prohibits lawyers from making “a false or misleading communication about the lawyer or the lawyer’s services.” As a concept, this prohibition in MLRPC 7.1 is unobjectionable and laudable. In practice, however, the determination of what constitutes a false or a misleading communication about the lawyer or the lawyer’s services can be a subtle exercise, subject to nuances as to which reasonable lawyers may disagree.1 Most types of advertising communications by lawyers are subject to Constitutional protection, provided the communications are not false or misleading. Accordingly, the proper construction of MLRPC 7.1 is of paramount importance, given that false or misleading communications by lawyers about themselves or their services are not subject to Constitutional protection.


1In Irwin Kramer v. Glenn M. Grossman, et al., U.S. District Court for the District of Maryland, Civil Action No. 1:13-cv-01745-ELH, for example, the plaintiff is a well-known Maryland lawyer whose practice emphasizes, among other things, representation of attorneys in attorney disciplinary actions. The plaintiff filed this lawsuit to obtain a judicial declaration of his First Amendment rights to use internet domain names such as “AttorneyGrievance.com” and “AttorneyGrievances.com” in his advertising, because he disagrees with Bar Counsel’s position that the domain and its URL are “misleading” within the meaning of, inter alia, MLRPC 7.1. According to the Complaint, the plaintiff has placed advertisements using the URL of the Website that uses “the domain of AttorneyGrievance.com to serve as an internet address of a website devoted to this practice area” in the “Lawyer-to- subject to Constitutional protection, provided the communications are not false or misleading. Accordingly, the proper construction of MLRPC 7.1 is of paramount importance, given that false or misleading communications by lawyers about themselves or their services are not subject to Constitutional protection.


Trial Reporter / Winter 2014 25


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