(a) Permissible Forms of Advertising. Subject to all the requirements set forth in these Rules, including the filing requirements of Rule 7.7, a lawyer may advertise services through public media, including but not limited to: print media, such as a telephone directory, legal directory, newspaper or other periodical; outdoor advertising, such as billboards and other signs; radio, television, and computer-accessed communications; recorded messages the public may access by dialing a telephone number; and written communication in accordance with Rule 7.4.

(b) Advertisements Not Disseminated in Louisiana. These Rules shall not apply to any advertisement broadcast or disseminated in another jurisdiction in which the advertising lawyer is admitted if such advertisement complies with the Rules governing lawyer advertising in that jurisdiction and is not intended for broadcast or dissemination within the state of Louisiana.

(c) Communications for Non-Profit Organizations. Publications, educational materials, websites and other communications by lawyers on behalf of non-profit organizations that are not motivated by pecuniary gain are not advertisements or unsolicited written communications within the meaning of these Rules.

Background

The Louisiana Supreme Court adopted this rule on June 26, 2008. It became effective October 1, 2009.

Louisiana’s advertising rules differ markedly from the corresponding ABA Model Rules. This is particularly true after 2018, when the ABA House of Delegates adopted a resolution from its Standing Committee on Ethics and Professional Responsibility to amend the lawyer-advertising provisions of the ABA Model Rules of Professional Conduct. See ABA Resolution 101 (Revised) as Adopted (Aug. 6, 2018). The amendments modernized model rules that had been in place for decades.

In a memorandum accompanying the draft, the Standing Committee on Ethics and Professional Responsibility (“Committee”) noted that its proposals were intended to “streamline and simplify” the rules and to permit lawyers “to use new technologies that can inform consumers accurately and efficiently about the availability of legal services.” See Barbara S. Gillers, Memorandum in Support of Working Draft of Proposed Amendments to ABA Model Rules of Prof’l Conduct on Lawyer Advertising at 2 (Dec. 21, 2017). The Committee recommended, and the House of Delegates adopted, amendments that accomplish the following:

  • Combining and consolidating existing rules into a single prohibition against false and misleading communications (including standards governing firm names and designations). See ABA Model Rule of Prof’l Conduct r. 7.1, cmts. 5-8 (Aug. 6, 2018).
  • Revising provisions that required publication of a lawyer’s “office address” to now require “contact information.” See id. r. 7.2(d). Comment 12 clarifies that “contact information” includes “a website address, a telephone number, an email address or a physical office location.” Id. cmt. 12.
  • Permitting lawyers to give “nominal gifts as an expression of appreciation” that are “neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.” See id r. 7.2(b)(5). Comment 4 clarifies that this new rule “permits lawyers to give nominal gifts as an expression of appreciation to a person for recommending the lawyer’s services or referring a prospective client. The gift may not be more than a token item as might be given for holidays, or other ordinary social hospitality. A gift is prohibited if offered or given in consideration of any promise, agreement or understanding that such a gift would be forthcoming or that referrals would be made or encouraged in the future.” Id. cmt. 4.
  • Defining and clarifying solicitation rules. First, the new rule defines “solicitation” or “solicit” as “a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.” Id. r. 7.3(a). Second, the rule prohibits “live person-to-person contact.” Id. r. 7.3(b). The comment clarifies that “‘live person-to-person contact’ means in-person, face-to-face, live telephone and other real-time visual or auditory person-to person communications where the person is subject to a direct personal encounter without time for reflection. Such person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard.” Id. cmt. 2. Third, the revised rule permits live person-to-person solicitation of a “person who routinely uses for business purposes the type of legal services offered by the lawyer.” Id. r. 7.3(b)(3). The comment clarifies that this includes persons who “routinely hire outside counsel to represent the entity; entrepreneurs who regularly engage business, employment law or intellectual property lawyers; small business proprietors who regularly routinely hire lawyers for lease or contract issues; and other people who routinely regularly retain lawyers for business transactions or formations.” Id. cmt. 5.

Louisiana Should Follow Suit

Yes. In 2008, the Louisiana Supreme Court adopted some of the most complex and indecipherable advertising rules in the country. Have these rules—which were the subject of costly federal litigation ultimately funded by us (Louisiana lawyers)—proven to be worth it? To rip off an old campaign speech, it might be well if we would ask ourselves this: Are we better off now than we were ten years ago? Are prospective clients better informed? Are lawyers’ advertisements “better”? Are Louisiana lawyers more respected?

In my view, the answer to all of these questions is “no.” As APRL, other state bar associations, and now the ABA have begun to recognize, lawyer-advertising regulations should simply ensure that lawyers don’t deceive or coerce prospective clients. Those laudable goals are best accomplished with simple rules prohibiting false and misleading communications, and prohibiting in-person solicitation. For that reason, the labyrinthine regulations contained in the current Louisiana rules should be revised.

The LSBA has stated that “[a]ll inquiries regarding the new lawyer advertising rules (whether for lawyer advertising within LSBA publications or for lawyer advertising in outside media outlets) should be directed to Richard P. Lemmler, Jr., Ethics Counsel, Louisiana State Bar Association, 601 St. Charles Avemue, New Orleans, LA 70130; toll free: 1-800-421-LSBA (5722), ext. 144; direct dial: (504) 619-0144; fax: (504) 598-6753. The LSBA website for lawyer advertising is: http://www.lsba.org/Members/LawyerAdvertising.aspx.

ABA MODEL 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. 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.

Comments to ABA Model Rule 7.1

[1]  This Rule governs all communications about a lawyer’s services, including advertising. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

[2]  Misleading truthful statements are also prohibited by this Rule.  A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading.  A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

[3]  A communication that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.  Similarly, an unsubstantiated claim about a lawyer’s or law firm’s services or fees, or an unsubstantiated comparison of the lawyer’s or law firm’s services or fees with the services or feeds of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison or claim can be substantiated.  The inclusion of an appropriated disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.

[4]  It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 8.4(c). See also Rule 8.4(e) for the prohibition against stating or implying an ability to improperly influence a government agency or official to achieve results by means that violate the Rules of Professional Conduct or other law.

[5] Firm names, letterhead and professional designations are communications concerning a lawyer’s services. A firm may be designated by the names of all or some of its current members, by the names of deceased members where there has been a succession in the firm’s identity or by a trade name if it is not false or misleading. A lawyer or law firm also may be designated by a distinctive website address, social media username or comparable professional designation that is not misleading. A law firm name or designation is misleading if it implies a connection with a government agency, with a deceased lawyer who was not a former member of the firm, with a lawyer not associated with the firm or a predecessor firm, with a nonlawyer or with a public or charitable legal services organization. If a firm uses a trade name that includes a geographical name such as “Springfield Legal Clinic,” an express statement explaining that it is not a public legal aid organization may be required to avoid a misleading implication.

[6] A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction.

[7] Lawyers may not imply or hold themselves out as practicing together in one firm when they are not a firm, as defined in Rule 1.0(c), because to do so would be false and misleading.

[8] It is misleading to use the name of a lawyer holding a public office in the name of a law firm, or in communications on the law firm’s behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

Annotations

LSBA Resources

The Louisiana State Bar Association has assembled materials relating to lawyer advertising here: LSBA Resources on Lawyer Advertising. Among other resources, the LSBA has created a “Handbook on Lawyer Advertising and Solicitation” to help Louisiana lawyers understand the new advertising provisions that became effective on October 1, 2009. The handbook includes, among other things:

  1. An overview of applicable regulations broken down by the type of advertisement/communication to which they apply.
  2. A reproduction of the actual Louisiana Rules of Professional Conduct that deal with lawyer advertising and solicitation.
  3. Answers to frequently asked questions about lawyer advertising regulations.
  4. A Quick Reference Checklist for lawyer advertisers.
  5. Examples of exempt and non-exempt, compliant and non-compliant print advertisements and unsolicited written communications.

The handbook is available at: http://www.lsba.org/Members/LawyerAdvertising.aspx.

ABA Aspirational Goals

In 1988, the ABA adopted aspirational goals to provide nonbinding guidance to lawyers who advertise. See ABA Aspirational Goals on Lawyer Advertising (1988). The ABA noted that these aspirational goals were “not intended to establish mandatory requirements which might form the basis for disciplinary enforcement.” Rather, the goals were “intended to provide suggested objectives which all lawyers who engage in advertising their services should be encouraged to achieve in order that lawyer advertising may be more effective and reflect the professionalism of the legal community.” See id.

Federal Litigation

Note that several of the advertising rules that became effective on October 1, 2009 were the subject of First Amendment litigation in the United States District Court for the Eastern District of Louisiana and the United States Fifth Circuit Court of Appeals. See, e.g., Public Citizen, Inc.  v. La. Atty. Disciplinary Bd., 642 F. Supp. 2d 539 (E. D. La. 2009); aff’d, Public Citizen v. La. Atty. Disciplinary Bd., 632 F. 3d 212 (5th Cir. 2011) (“The court affirmed the district court, finding that Rule 7.2(c)(1)(E), 7.2(c)(1)(I), and 7.2(c)(1)(L) did not regulate attorneys’ commercial speech in a way that violated the First Amendment.  In reversing the district court, the court found that Rule 7.2(c)(1)(D), 7.2(c)(1)(J), and 7.2(c)(10) did violate the First Amendment.”).  In that litigation, the United States Fifth Circuit Court of Appeals declared several provisions in Louisiana Rules 7.5, 7.6 and 7.7 to be unconstitutional and unenforceable. Please see the sections containing those rules for additional details.

Notes

This page was updated on March 1, 2019.