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Legal Marketing


where it is clear that the particular violation did not result in the mischief the regulation was created to prevent.” Gregory, 311 Md. at 529-30.2 Six months after Gregory was decided, the Court of


I. Basic Constitutional Issues Related to Attorney Advertising


Prohibitions against attorney advertising, and in


particular “a general prohibition against solicitation” of particular types “must be tested against the individual facts of each case to determine whether the application of that prohibition would offend constitutional guarantees of free speech and the right of association.” Attorney Grievance Commission v. Gregory, 311 Md. 522, 529, 536 A.2d 646 (1988), citing, inter alia, Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S. Ct. 2265, 85 L.Ed.2d 652 (1985), Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S. Ct. 1912, 56 L.Ed.2d 444 (1978), and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L.Ed.2d 810 (1977). In Gregory, the Court of Appeals held that these Supreme Court precedents established “a prophylactic rule prohibiting in-person solicitation of any kind,” because of the possibility of “‘overreaching and other forms of misconduct” inherent in this type of solicitation of professional employment, and thus an attorney can be disciplined for violating such a prophylactic rule “even


26 Trial Reporter / Winter 2014


Appeals rejected Bar Counsel’s argument that an attorney’s “targeted mailings” that “amounted to a recommendation of himself for employment” subjected an attorney to discipline under D.R. 2-103(b), which “provide[d] that “[a] lawyer shall not recommend employment . . . of himself . . . to a non-lawyer who has not sought his advice regarding employment of a lawyer.” Unnamed Attorney v. Attorney Grievance Commission, 313 Md. 357, 367, 545 A.2d 685 (1988). The court noted “the United States Supreme Court recently determined that an attorney’s direct mail solicitation of potential clients known to face specific legal problems is protected activity under the First Amendment, so long as the communication is neither false nor misleading and does not suffer from overreaching. Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S. Ct. 1916, 100 L.Ed.2d 475 (1988).” Id. “Thus, insofar as DR 2-103(B) constitutes a blanket prohibition against targeted direct mail solicitation, it is unconstitutional.” Id. The court also rejected Bar Counsel’s argument “that Rule 7.3 of the new Rules of Professional Conduct would not allow an attorney to forward targeted mail to a person whose state of health would impair the recipient’s ability to make a reasonable judgment,” because “in light of Shapero, we note the doubtful constitutional validity of subsection (b)(1) of Rule 7.3, at least to the extent that it proscribes written contact.” Id., at 367-68. The Court of Appeals “interpret[ed] Shapero to mean that written modes of solicitation (as opposed to in-person solicitation) are protected by the First Amendment, regardless of the recipient’s condition, so long as such communication is neither false, misleading, nor overreaching. We believe that Rule 7.3(b)(1), which improperly focuses solely on the condition of the recipient of the solicitation, has questionable validity.” Id.,at 368.


II. MLRPC 7.1 MLRPC 7.1 provides: Rule 7.1. Communications Concerning a Lawyer’s Services.


A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.Acommunication is false or misleading if it:


2 The erstwhile “prophylactic rule prohibiting in-person solicitation of any kind” is now subject to limited exceptions in MLRPC 7.3.


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