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PROPOSED RULE 6.4
LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS
or its administration notwithstanding that the reform may affect the interests of a client of the
lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a
decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the
client.
COMMENT
Lawyers involved in organizations seeking law reform generally do not have a client-lawyer
relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in
a bar association law reform program that might indirectly affect a client. See also Rule 1.2(B). For
example, a lawyer specializing in antitrust litigation might be regarded as disqualified from
participating in drafting revisions of rules governing that subject. In determining the nature and
scope of participation in such activities, a lawyer should be mindful of obligations to clients under
other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the
program by making an appropriate disclosure within the organization when the lawyer knows a
private client might be materially benefitted.
See Rule 1.0(f)
“Materially”See Rule 1.0(g)
Made
CHAPTER 7
INFORMATION ABOUT LEGAL SERVICES
PROPOSED RULE 7.1
COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
services, the lawyer’s charges for fees or costs, or the law as relates to the services the lawyer will
provide. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, omits a fact necessary to make the
statement considered as a whole not materially misleading; or
states or implies that the lawyer can achieve results by means that violate the Rules of
Professional Conduct or other law; or
comparison can be factually substantiated.
[1] This Rule governs all communications about a lawyer's services, including advertising
permitted by Rule 7.2 and solicitations directed to specific recipients permitted by Rule 7.3.
Whatever means are used to make known a lawyer's services, statements about them should be
truthfulThe prohibition in paragraph (b) of statements that may create an "unjustified expectation"
would ordinarily preclude advertisements about results obtained on behalf of a client, such as the
amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements
containing client endorsements. Such information may create the unjustified expectation that similar
results can be obtained for others without reference to the specific factual and legal circumstances.
“Material” and “Materially”See Rule 1.0(g)
“Reasonable”See Rule 1.0(i)
The Proposed Rule is substantially similar to DR 2-101(A), except that the Proposed Rule
embraces not only communications about the lawyer and the lawyer’s services, but also
communications about “the lawyer’s charges for fees and costs” and communications about “the
law as relates to the services the lawyer will provide.”
The Proposed Rule does not include the long list of permitted information contained in DR
2-101(B). If true, none of the information listed in DR 2-101(B)(1) through (19) would be likely
to mislead a prospective client. Communicating such information, therefore, would not be
prohibited by the Proposed Rule.
Paragraph (c) (which prohibits a comparison of feesunless it can be factually
substantiated) and Proposed Rule 1.5(a)(1)(i) (which adds “prior advertisements or statements by
the lawyer with respect the lawyer’s fees or charges for costs” as a factors to be considered in
determining the reasonableness of a fee or a charge for costs differ markedly from the current
Disciplinary Rules, DR 2-101(B)(20) through (25) and DR 2-101(I) and (J).
The Proposed Rule is identical to ABA Model Rule 7.1 except that the coverage of the
Proposed Rule has been broadened to cover not only communications about the lawyer and the
lawyer’s services, but also communications about “the lawyer’s charges for fees and costs” and
communications about “the law as relates to the services the lawyer will provide.”
Also Paragraph (c) addresses comparisons of a lawyer’s fees with those chargedby other
lawyers as well as comparisons of the lawyer’s services with other lawyer’s services.
The Committee deleted the reference in Paragraph (A) to the rendering of an opinion with
respect to a material issue that could not be reasonably justified in light of facts known to the lawyer
at the time the opinion was rendered. The Committee concluded that this extra detail was
unnecessary.
Made
In response to concerns voiced by the Memphis Bar Association and the Tennessee Trial
Lawyers Association, the Committee recommends the deletion of Paragraphs (d)(2) and (3) and the
incorporation of Paragraph (d)(1) into Paragraph (c). The Committee concluded that Paragraph
(d)(2) is unnecessary because Paragraph (a) already prohibits false and misleading statements
about the lawyer’s services and fees, which, of course, would include falseor misleading
statements about initial consultations. The Committee deleted Paragraph (d)(3) because it
questions the efficacy of such a general warning and believes that clients are adequately protected
by enforcement of the requirements in Rule 1.5 that a lawyer’s fee be reasonable and that the basis
or rate of the fee be explained to the client.
ADVERTISING AND OTHER COMMUNICATIONS NOT DIRECTED TO
SPECIFICALLY IDENTIFIED RECIPIENTS
lawyer may advertise professional services or seek referrals through public media, such as a
telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or
television, world wide web site, or other forms of communication not directed to specifically
identified recipients.
communication not directed to a specifically identified recipient, the lawyer shall file a copy of the
advertisement or communication with the Board of Professional Responsibility, provided, however,
that such filing is not required for any communication that only includes the name, address and
profession of the lawyer or has been exempted from the filing requirement by the Board of
Professional Responsibility.
displayed more than once or distributed to more than one person, the lawyer may
comply with this requirement by filing a single copy of the communication.
material respect, notice of the changes shall be filed with the Board within three days after
its publication, distribution, or dispatch.
lawyer's services except that a lawyer may:
Rule, Rule 7.3 or 7.5;
organization in return for which the lawyer will be given publicity as a lawyer;
subject to this Rule or Rule 7.3(b) shall include the name and office address of at least one lawyer
or law firm assuming responsibility for the communication.
[1]This Rule governs general advertising through public media and other communications
that are not directed to specifically identified individuals. The Rule encompasses all possible media
through which such communications may be directed, including print, broadcasting, and computer-
driven technology. Communications that are directed to specifically identified recipients are
governed by Rule 7.3.
[2] To assist the public in obtaining legal services, lawyers should be allowed to make
known their services not only through reputation but also through organized information campaigns
in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition
that a lawyer should not seek clientele. However, the public's need to know about legal services can
be fulfilled in part through advertising. This need is particularly acute in the case of persons of
moderate means who have not made extensive use of legal services. The interest in expanding
public information about legal services ought to prevail over considerations of tradition.
Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.
[3]This Rule permits public dissemination of information concerning a lawyer's name or
firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis
on which the lawyer's fees are determined, including prices for specific services and payment and
credit arrangements; a lawyer's foreign language ability; names of references and, with their consent,
names of clients regularly represented; and other information that might invite the attention of those
seeking legal assistance.
[4] Questions of effectiveness and taste in advertising are matters of speculation and
subjective judgment. Some jurisdictions have had extensive prohibitions against television
advertising, against advertising going beyond specified facts about a lawyer, or against
"undignified" advertising. Television is now one of the most powerful media for getting information
to the public, particularly persons of low and moderate income; prohibiting television advertising,
therefore, would impede the flow of information about legal services to many sectors of the public.
Limiting the information that may be advertised has a similar effect and assumes that the bar can
accurately forecast the kind of information that the public would regard as relevant.
[5]Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as
notice to members of a class in class action litigation.
[6]Paragraph (b) requires that a lawyer file a copy of any advertisement or other
communication governed by this Rule with the Board of Professional Responsibility within three
days after publication, distribution, or dispatch. A lawyer may comply with the filing requirement
of paragraph (b) by complying with guidelines that may be adopted by the Board of Professional
Responsibility concerning appropriate methods by which a lawyer may provide the Board with
notice of communications made by way of web sites, e-mail, or other electronic forms of
communication or of changes to such communications. This Rule does not require that
communications be subject to review prior to dissemination, although a lawyer is free to request
such a review from the Board. This Rule provides the Board an opportunity to monitor lawyer
communications to the public while not placing any sort of prior restraint on publication.
[7]A lawyer is allowed to pay for advertising permitted by this Rule and for the purchase
of a law practice in accordance with the provisions of Rule 1.17, but otherwise is not permitted to
pay another person for channeling professional work. This restriction does not prevent an
organization or person other than the lawyer from advertising or recommending the lawyer's
services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services
provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral
programs and pay the usual fees charged by such programs. Paragraph (c) does not prohibit paying