Lawyer Advertising, Solicitation and the Line Between Them
Advertising by lawyers is regulated on one principle: a communication must not be false or misleading. Solicitation is regulated on a different one, concerned with the pressure a person feels when approached directly by someone who wants their case.
The rule in short
A lawyer may not make a false or misleading communication about the lawyer or the lawyer's services, meaning one containing a material misrepresentation or omitting a fact needed to keep the statement from misleading. Advertising through any media is otherwise permitted. Live person-to-person solicitation for pecuniary gain is prohibited unless the person contacted is a lawyer, has a close personal or prior professional relationship, or routinely uses such services.
Restrictions on how lawyers may seek work were once close to absolute and are now built around a single test for advertising and a different one for direct approach. The distinction is not about medium. It is about whether the recipient has time to consider the message before responding, and whether a person seeking the work is present while they do.
The one standard that governs content
A lawyer may not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. That is the whole of the content rule in the model text, and everything else operates within it.
The comment fills in what misleading covers. A truthful statement can mislead if there is a substantial likelihood it will lead a reasonable person to form an unjustified expectation about results, most obviously a recitation of past verdicts presented without the facts that produced them. An unsubstantiated comparison with other lawyers can mislead in the same way. Presenting information as a firm's own credential when it belongs to a lawyer who has left is a straightforward misrepresentation.
The breadth of permitted advertising
Subject to that standard, a lawyer may communicate information about the lawyer's services through any media. Broadcast, print, mail, websites, search advertising and social media are all within the permission. A lawyer may state the fields in which the lawyer practices, the fees charged, the jurisdictions of admission, and biographical information, and may use a trade name that is not misleading.
Payment for recommendations is restricted separately. A lawyer may not compensate, give or promise anything of value to a person for recommending the lawyer's services, with defined exceptions: the reasonable costs of advertisements, the usual charges of a legal service plan or a qualified lawyer referral service, the purchase of a law practice, and reciprocal referral arrangements that are not exclusive and are disclosed to the client. A percentage of a resulting fee falls outside all of these, and would in any event run into the separate bar on sharing a fee with anyone outside the arrangements the rules permit.
State advertising rules vary more than almost any other part of the conduct rules. Some require submission of advertisements to a bar committee before or after use, with fees. Some prescribe the exact wording of disclaimers about past results or about what an advertised no-charge first meeting does and does not include. Some regulate domain names and the use of actors. A campaign compliant in one state can violate another's rules in several respects at once.
Live contact and why it is treated differently
The solicitation rule prohibits live person-to-person contact soliciting professional employment where a significant motive is the lawyer's pecuniary gain. Live person-to-person contact means in-person, live telephone, or other real-time visual or auditory communication where the person is subject to a direct personal encounter without a meaningful opportunity to reflect.
The rationale is pressure rather than content. A person approached at home, in a hospital, or by telephone is being asked to make a decision in the presence of someone trained in persuasion who has a financial interest in the answer. A letter or a website carries the same information without that dynamic, which is why the two are regulated so differently.
Three categories of person may be contacted live. A lawyer. Someone who has a family, close personal or prior professional relationship with the lawyer. And someone who routinely uses for business purposes the type of legal services offered, which is what permits ordinary business development among sophisticated commercial clients.
| Contact | Category | Permitted under the model rules |
|---|---|---|
| Television commercial naming a practice area | Advertising | Yes, if not false or misleading |
| Letter to homeowners facing foreclosure | Targeted written communication | Yes, subject to state labeling and waiting rules |
| Telephone call to an accident victim who has not asked to be called | Live person-to-person solicitation | No, absent one of the three exceptions |
| Conversation with a general counsel who regularly hires outside firms | Live contact within an exception | Yes, as a person who routinely uses such services |
| Any contact after the person has said not to contact them | Prohibited outright | No, regardless of any exception |
Firm names and letterhead sit inside the same standard. A trade name is permitted where it does not imply a connection with a government agency, a public or charitable legal services organization, or anything else that is not so. Listing a lawyer who is not associated with the firm, or continuing to use a name in a way that suggests a partnership that does not exist, is misleading in the ordinary sense the rule uses.
The prohibitions that no exception reaches
Two limits apply even where the contact would otherwise be permitted. A lawyer may not solicit employment by live person-to-person contact where the target has made known a desire not to be solicited, and may not do so where the solicitation involves coercion, duress or harassment. These are not defenses to be weighed; they close the door.
The rule also reaches conduct performed on a lawyer's behalf. A lawyer may not engage in solicitation through a person acting for them, which is the provision that addresses runners and case-generation services. Because the conduct of such intermediaries is attributed to the lawyer, the supervisory framework that governs responsibility for non-lawyers working with a firm applies to marketing vendors as much as to staff.
What happens once the response arrives
An advertisement that works produces an inquiry, and the duties attach immediately. A person who consults a lawyer about forming a relationship is a prospective client whose information is protected whether or not a representation follows, and the information received can disable the firm from acting against them, a problem adjacent to the analysis applied to former client conflicts. Firms running high-volume intake should limit what is collected before a conflicts check runs.
The fee terms promised in an advertisement also bind. A stated contingent percentage has to be reflected in a signed agreement meeting the requirements set out in the rule on contingent fees and the writing they demand, and a fee described as free until we win must not conceal an obligation for costs. An advertisement that promises terms the engagement letter does not deliver is misleading in the plainest sense the rule contemplates.
Points to carry away
- The governing standard for any communication about a lawyer's services is that it not be false or misleading.
- Advertising through written, recorded and electronic communication is broadly permitted.
- Live person-to-person solicitation for pecuniary gain is prohibited, subject to three categories of permitted contact.
- Solicitation is barred outright where the person has said they do not want to be contacted or where the contact involves coercion, duress or harassment.
- A lawyer may not pay for a recommendation of services, though advertising costs and qualified referral service charges are permitted.
- State rules add disclaimers, filing requirements and specialization restrictions that the model text does not contain.
Questions readers ask
May a lawyer claim to be a specialist in a field?
A lawyer may communicate the fields of law in which the lawyer practices or does not practice. Stating that one is certified as a specialist is different: the model rule permits it only where the lawyer has been certified by an organization approved by an appropriate state authority or accredited by the American Bar Association, and the name of the certifying organization is stated in the communication. Patent lawyers and admiralty practitioners may use the customary designations for their fields. State requirements around specialization claims vary considerably.
Do online reviews and testimonials fall under these rules?
Client testimonials are communications about the lawyer's services and are judged by the same standard. A testimonial is misleading where it creates an unjustified expectation about results, or where a favorable outcome is presented without the context that would prevent a reader from assuming similar results are likely. Several states require a disclaimer to that effect. A lawyer is also responsible for material posted on the lawyer's behalf, so soliciting reviews and shaping their content brings the resulting statements within the rule.
Can a lawyer send a letter to people known to need help after an incident?
Targeted written communication is generally permitted, because a letter can be set aside in a way a face-to-face approach cannot. It remains subject to the general standard, and states commonly add requirements such as a label identifying the mailing as advertising material. A significant number impose a waiting period before written contact with accident victims or their families, and that restriction has been upheld against a constitutional challenge in at least one instance. The applicable period is a matter of state rule.
Sources
- ABA Model Rules of Professional Conduct — Rule 7.1, Communications Concerning a Lawyer's ServicesThe false or misleading standard that governs every communication about a lawyer's services.
- ABA Model Rules — Comment on Rule 7.1Explains unjustified expectations, comparisons with other lawyers and the use of testimonials.
- ABA Model Rules — Rule 7.2, Communications Concerning a Lawyer's Services: Specific RulesPermits advertising through any media, restricts payment for recommendations, and governs specialization claims.
- ABA Model Rules — Rule 7.3, Solicitation of ClientsDefines live person-to-person contact and sets the exceptions and absolute prohibitions.
- ABA Model Rules — Comment on Rule 7.3Explains the pressure rationale and the treatment of close personal and prior professional relationships.
- ABA Model Rules — Rule 5.4, Professional Independence of a LawyerRestricts arrangements under which a non-lawyer marketing partner shares in fees.
- The Florida Bar — Rules Regulating The Florida BarAn adopted regime with advertisement filing, review and content requirements beyond the model rules.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
