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Legal Marketing

communication indicating that no fee will be charged in the absence of a recovery shall also disclose whether the client will be liable for any expenses.”MLRPC7.2(d) and (e).

IV. MLPRC 7.3 As Gregory and Unnamed Attorney establish, supra,

many more restrictions, such as those imposed in MLRPC 7.3, are permissible under the Constitution on direct in-person, or telephonic or real-time, solicitation of professional employment from prospective clients by lawyers than are permissible on lawyers’ written solicitations, including targeted mailings to persons known to likely need a particular type of legal services. Gregory, 311 Md. at 529-30; Unnamed Attorney, 313 Md. at 367-68.MLRPC7.3(a)(1) and (2), furthermore, permits in-person, telephonic or real-time electronic contact with prospective clients who (1) are lawyers, or (2) have a family, close personal, or prior professional relationship with the lawyer. These exceptions are consistent with the rationale of Gregory and Unnamed Attorney as the risk of overreaching through such solicitations is lesswhen the prospective client is a lawyer, a former client, or a family member or close personal friend.

MLRPC 7.1(3)(b)(1) includes a prohibition on

“written” communication, as well as in-person, telephonic, or real-time electronic soliciting professional employment from a prospective client if “the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the prospective client could not exercise reasonable judgment in employing a lawyer.” This is, however, the provision that the Court of Appeals held has “doubtful constitutional validity” and “questionable validity” as a result of the Supreme Court’s decision in Shapero. Unnamed Attorney, 313 Md. at 368. MLRPC7.3(c) and (d) prohibit solicitation of prospective clients who have “made known to the lawyer a desire not to be solicited by the lawyer,” or that “involves coercion, duress or harassment.” These prohibitions appear sufficiently narrow to be

consistent with the rationale in Gregory that allows regulations that are reasonably targeted against overreaching. Finally, MLRPC 7.3(c) requires that communications from lawyers soliciting “a prospective client known to be in need of legal services in a particular matter,” other than the types of prospective clients described in MLRPC 7.3(a)(1) and (2), “shall include

30 Trial Reporter / Winter 2014

the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication.”

V. MLPRC 7.4 MLRPC 7.4 provides: Rule 7.4. Communication of Fields of Practice.

(a) A lawyer may communicate the fact that

the lawyer does or does not practice in particular fields of law, subject to the requirements of Rule 7.1. A lawyer shall not hold himself out publicly as a specialist.

(b) A lawyer admitted to engage in patent

practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation.

Comment 1 to MLRPC 7.4 states “[t]his Rule

permits a lawyer to indicate areas of practice in communications about the lawyer’s services; for example, in a telephone directory or other advertising. If a lawyer practices only in such fields, or will not accept matters except in such fields, the lawyer is permitted to so indicate.” Most lawyers who have web sites, or who advertise in any manner, indicate the areas of law emphasized in their practices. The author advises, however, against the use of absolute terms when indicating lawyers’ fields of practice. As set forth in MLRPC 7.4(a), communications of lawyers’ fields of practice have to be true and not misleading as required by MLRPC 7.1. Such communications, moreover, have to continue to be true during the time advertisements are used. A statement in advertisements such as “I only represent plaintiffs in automobile cases,” or “all I do is represent plaintiffs in automobile cases” are fine so long as they are true. If, however, the lawyer occasionally represents a client in another type of case, or wishes to maintain the flexibility to do so without having to worry about reviewing and changing an advertisement, the lawyer will be much better served by removing the absolute terms “only” or “all” from these statements. The prohibition against a lawyer holding himself

out publicly as a specialist is consistent with MLRPC 1.1, “Competence.” As Comment 2 to MLRPC 1.1 states, “[a] lawyer need not necessarily have special training or prior experience to handle legal matters of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. . . .Alawyer can provide competent

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