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Legal Marketing


a Special Master to conduct a hearing for the “purpose of developing . . an evidentiary record in respect of the facts and legal issues,” the Supreme Court of New Jersey vacated the Committee’s Opinion 39. Id., at 726-30. Comment 2 to MLRPC 7.1 also contains another


interesting aspect, as the Comment states “[a] communication will be regarded as false or misleading if it . . . contains an endorsement or testimonial as to the lawyer’s legal services or abilities by a person who is not a bona fide pre-existing client of the lawyer and has not in fact benefitted as such from those services or abilities.” This language in Comment 2 to MLRPC 7.1 is properly construed to mean that lawyers should not have advertisements that contain endorsements or testimonials from either people who either expressly state or imply they are former clients when, in fact, they are not. This language in Comment 2 to MLRPC 7.1 does not prohibit endorsements from lawyers’ peers in the legal community. Lawyers confront a more troublesome issue under


MLRPC 7.1 and the concomitant Rules in other jurisdictions when it comes to “endorsements” in lawyers’ advertisements from “celebrities” or “public figures.” In Keller, supra, for example, the court found a violation of Indiana’s Rule of Professional Conduct 7.1 arising from an “implied endorsement” in the lawyers’ advertisements from actor Robert Vaughan. Keller, 792 N.E.2d at 870. Some states, such as Virginia, have adopted a version


of Rule of Professional Conduct 7.1 that expressly allows a lawyer advertisement that “contains an endorsement by a celebrity or public figure who is not a client of the firm” so long as the advertisement includes “disclosure (I) of the fact that the speaker is not a client of the lawyer or the firm, and (ii) whether the speaker is being paid for the appearance or endorsement.” While MLRPC 7.1 does not contain this express provision, lawyers’ advertisements that include endorsements from celebrities or public figures and that contain these disclosures would not violate either the letter or the spirit of MLRPC 7.1.


III. MLRPC 7.2 As indicated in the Introduction, supra, MLRPC


7.2(a) specifies that lawyer advertisements through outlets like telephone directories or legal directories, newspapers or magazines, radio and television, or “outdoor” advertising such as billboards or signs on buses are all permissible means through which “a lawyer may


advertise services through public media. . .”. Other advertising “communications not involving in-person” contact, such as distribution of flyers or mailings, are also permissible under MLRPC 7.2(a). As Unnamed Attorney establishes, the commercial speech in which lawyers engage through these types of advertisements are afforded significant Constitutional protections, such long as the advertisements are not “false” or “misleading,” supra. Unnamed Attorney, 313 Md. at 367-68. MLRPC 7.2 also contains several additional


requirements that lawyers must meet with their advertisements that go well beyond the requirements of MLRPC 7.1. These include, for example, a copy or a recording of any lawyer advertisement “shall be kept for at least three years after its last dissemination along with a record of when and where it is used.” MLRPC 7.2(b). Subject to exceptions such as payment for the reasonable cost of advertising, payment of the usual charges of a legal service plan or a not-for-profit lawyer referral service, or payment for a law practice the lawyer has purchased, “[a] lawyer shall not give anything of value to a person for recommending the lawyer’s services.” MLRPC 7.2(c). Any communication made pursuant to MLRPC 7.2 also “shall include the name of at least one lawyer responsible for its content,” and “[a]n advertisement or


Trial Reporter / Winter 2014 29


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