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Legal Marketing (a) contains a material misrepresentation of fact


or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;


(b) is likely to create an unjustified expectation


about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Maryland Lawyers’ Rules of Professional Conduct or other law; or


(c) compares the lawyer’s services with other


lawyer’s services, unless the comparison can be factually substantiated.


As the Comment 1 to MLRPC 7.1 states, “[t]his


Rule governs all communications about a lawyer’s services, including advertising and direct personal contact with potential clients permitted by Rules 7.2 and 7.3.” Comment 1 to MLRPC 7.1 goes on to state, “[w]hatever means are used to make known a lawyer’s services, statements about them should be truthful.” Again, this latter statement is something with which we may all agree. The more difficult issues are: (1) what constitutes a “misleading” communication, (2) when is a communication likely to create an unjustified expectation about results the lawyer can achieve; and (3) when does a communication constitute an impermissible compari- son of the lawyer’s services with other lawyers’ services. With regard to the “misleading” aspect of MLRPC


7.1, some attorneys may be relieved to know that “tasteless” advertisements do not necessarily violate this Rule as “[b]ad taste...isnot a synonym for “misleading.’” Attorney Grievance Commission v. Ficker, 319 Md. 305, 318, 572 A.2d 501 (1990). Similarly, “nor does “crassness’ necessarily equate with “false advertising.’” Id. Thus, while the author believes Maryland attorneys should strive for good taste in their advertising, it is not required by MLRPC 7.1. In connection with the issue of when a communication is “misleading” because it is “likely to create an unjustified expectation about results the lawyer can achieve,” Comment 2 toMLRPC7.1 provides some useful guidance. A communication that “asserts the lawyer’s record in obtaining favorable awards, verdicts, judgments, or settlements in prior cases” will not be “regarded as false or misleading” if “it also expressly and conspicuously states that each case is different and that the past record is no assurance that the lawyer will be successful in reaching a favorable result in any future case.” In Maryland, use of the disclaimer expressly set forth in Comment 2 to MLRPC 7.1 provides a safe


Trial Reporter / Winter 2014 27


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