Posted: December 8th, 2022

Advertising and Solicitation

Name
Research Paper Topic: Advertising and solicitation.
Requirement: Discuss the history of advertising in the United States and in California. Discuss the difference between advertising and solicitation. Your discussion must include list of all California regulations and rules of professional conduct relevant to the topic with active links. Include at least two relevant California cases that are less than 10 years old in your discussion. Include active links to the cases. You may include a relevant article (include an active link) on the topic that is less than 5 years old.
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Sample Answer
Advertising and Solicitation
The legal profession restricts lawyers from marketing for themselves. The restrictions range from simple advertising provisions to prohibiting solicitation interactions with potential clients. The ban on advertising and solicitation protects the image of the profession. Additionally, it prevents the influence of people trained in the art of persuasion. Individuals should make a sound choice on their preferred legal services provider. The rules on legal advertising began in England in the 1800s. The esquires who came up with the rule considered themselves to be of a higher calling. Therefore, despite the high level of commercialization in the society, they chose to run their profession in a dignified manner. Despite the aggressive nature of the mercantile world, the United States Bar maintains the same attitude of a dignified profession.
Advertising is communicating a commercial interest to the public. Advertising does not target a specific individual. On the other hand, solicitation is the action by a professional to make personal contact with a layperson to entice them to hire legal services (Jenkins & Samiee 347). The standard of restricting commercialization remained restricted in most states until the 1970s. The restriction carried on as a gentleman’s agreement or out of tradition. The lawyer carried out their duties without seeking publicity. The enforcement of the rules specifically barred attorneys from engaging in commercial publicity. Therefore, there were no television advertisements, billboards and radio spots. However, in 1977, a ruling by the United States Supreme Court in Bates v. Arizona changed advertising in the legal profession. Bates presented a petition to the court insisting that lawyers had the right to advertise. Bates also protested the action by regulators to prevent them from running their business in their preferred way.
Bates had a practice that relied on facing and marketing to consumer lower end legal services. In such a practice, it is imperative to have many clients to maintain profitability (Chaserant & Harney 433). In his presentations to the court, Bates demonstrated to the courts that such a practice has significant value to the consumers because the legal fee is fair, transparent and predictable. Low-end services are not suitable for everyone but to some, it is necessary (Bonica et al. 37). However, lawyers cannot provide such services without high volumes. Therefore, advertising for them is critical. Bates also informed the court that the challenge of advertising did not come from a consumer. The clients preferred the services because it was easy to acquire.
The complaint about the advertising of Baits came from the bar association. However, the courts ruled in favor of Bates. In the ruling, the court said that there was imminent danger is suppression information (Jenkins & Samiee 347). Individuals have the right to disseminate information in any way that they wish. The restriction of information prevents it from reaching people who might need it. In the Bates case, low-end legal consumers also needed representation. However, without advertisements, they cannot reach lawyers like Bates who can offer services to them.
The court recognized the undignified and loud nature of advertising. To some extent, advertising can manipulate consumers (Chaserant & Harney 433). However, the Supreme Court rules that the benefits from advertising legal services outweigh the disadvantages. The First Amendment of the Constitution gives free speech the benefit of doubt. The judgment also asserted that advertising does not decide on the choice of attorney final. To that extent, it is wrong to deny the consumer such information due to its incomplete nature. From the advertising, an interested client can seek further clarification on legal service that they want. However, most legal profession regulators still think that attorney should limit advertisement of their services.
California acknowledges the freedom of attorneys to advertise. However, the bar has some regulations on how best to market the services. In Pan v Rutlege, the defendant insisted that an attorney has the protection to solicit for business under the anti SLAPP motion.
A small mistake by attorneys in advertising their services can make them liable to disciplinary action (Feenstra & Esteban 345). To the extent, most legal firms prefer to hire marketing companies that have adequate knowledge of the legal advertising regulations. Before 2018, the attorney advertising regulations relied on the California rules of professional conduct 1-400. The new rules took effect in from November 1st in the same year. The new regulations framework lists five new rules as 7.1 – 7.5. The new rule 7 and the old 1-400 focus on the obligation of an attorney to produce statements that are honest and fair in an advertisement.
The rules assert that the advertisements of an attorney must be truthful. The regular is eager to detect any attempt by the attorneys to mislead possible clients in the advertisements (Cohen & Dromi 177). In Pietro v Sacks, the plaintiff presented an argument that the defendant solicited legal work by misrepresenting his success in a previous case. According to the regulations, some types of content should read solicitation, advertisement, or similar writings that are easy to acknowledge. The attorney advertisements from the State should also identify at least of lawyer that is responsible for the advertisement. In the 1-400 set of rules, Standard 12 and the rule 72 (c) necessitates the provision of the name and address of one attorney involved in the advertisement. The regulations ban solicitations and advertisements that guarantee or warrant specific results. According to the rules, such advertisements have misleading or false communication.
According to rule 7.1, a truthful statement can be misleading by omitting a fact that conceals the reality. Additionally, content can appear misleading if it leads a reasonable person to conclude that a lawyer can provide a certain service that is not available (Jenkins & Samiee 347). The California rules for advertising also have certain provisions that deal with case results, achievements and testimonials. Standard 2 in the 1- 400 rules states that all forms of communication that contain endorsements or testimonials should have an accompanying disclaimer that states that the content displayed is not a guarantee of results. Without such a disclaimer, there is a presumption of intention to mislead. On the other hand, rule 7.2 indicates that a disclaimer is not necessary. However, it asserts that testimonials might create unjustified expectations.
Rule 7.1 also asserts that a truthful statement on an attorney’s records can also be misleading. A presentation of a record should not inform an unjustified expectation on a reasonable person (Bonica & Sen 560). In the exercise of law, achieving identical results is highly improbable. Facts and circumstances behind cases differ. Different resources inform the bar rules in the State. The California Rules of Professional Conduct has the main rules for attorneys on solicitation and advertising. The state bar formal ethics opinion of 2001 – 155 on Advertising and the Internet also contains regulations. The formal ethics opinions focus more on website and internet advertising. The opinions seek to set some rules on the latest forms of advertising.
The California Rules of Professional Conduct also known as Rule 1- 400 also governs the advertising and communication rules for law firms and lawyers. The California Bar Ethics Opinions Committee (COPRAC) sits on behalf of the bar board of trustees (Collier 42). The mandate of the committee is to provide advice on matters concerning ethics to the bar. The committee even provides ethical guidance on hypothetical situations raised by the bar. However, the advice provided is not binding to the bar. Nevertheless, in court litigations, the advisory opinions shed more light on how the committee handled the situation (Hudson Jr 959). An article published by the Los Angeles County Bar Association named Promoting Business under the Advertising Rules also explains the rules on the bar on advertising to the lawyers. Finally, an article by Wendy Patrick titled Advertising in the Electronic Age discusses emerging issues in advertising and maintenance of legal websites.
The rules on advertising prevent lawyers from passing any form of communication that might Help in influencing the perspective of a client. According to the regulations, a client should make an informed decision on the best form of legal service without any form of persuasion. However, the Supreme Court of the United States made a different ruling on the matter. The highest court refused to regulate attorney advertising in the matter of Bates v Arizona. The court stated that a lawyer has a right to advertise his or her services. Information not disseminated is not useful. To that extent, different bar associations take on the role of regulating the forms of advertisement by lawyers. The California bar association is keen to detect instances of misleading statements on the advertisements. The California Bar Association acknowledges the right to advertise. However, the bar association exercises strict enforcement standards on its members.

Works Cited
Bonica, Adam, and Maya Sen. “The politics of selecting the bench from the bar: the legal profession and partisan incentives to introduce ideology into judicial selection.” The Journal of Law and Economics 60.4 (2017): 559-595.
Cohen, Andrew C., and Shai M. Dromi. “Advertising morality: Maintaining moral worth in a stigmatized profession.” Theory and Society 47.2 (2018): 175-206.
Collier, Richard. “Wellbeing in the legal profession: reflections on recent developments (or, what do we talk about, when we talk about wellbeing?).” International journal of the legal profession 23.1 (2016): 41-60.
Feenstra, Ramón A., and Elsa González Esteban. “Autocontrol: A critical study of achievements and challenges in the pursuit of ethical advertising through an advertising self-regulation system.” Journal of Business Ethics 154.2 (2019): 341-354.
Hudson Jr, David L. “Attorney Advertising in the Litigators and Modern-Day America: The Continued Importance of the Public’s Need for Legal Information.” U. Mem. L. Rev. 48 (2017): 959.
Jenkins, Roger L., and Saeed Samiee. “Advertising in the Professions: A Literature Review and Future Prospects.” Marketing Horizons: A 1980’s Perspective. Springer, Cham, 2015. 346-349.
Phan v. Rutledge. Court of Appeal, Second Appellate District, 2010. G042983
Pietro v. Sacks. Court of Appeal, Second Appellate District, 2010. B20895.
Chaserant, C., & Harnay, S. (2013, October 22). Self-regulation of the legal profession and quality in the market for legal services: an economic analysis of lawyers? reputation. Retrieved from https://link.springer.com/article/10.1007/s10657-013-9420-1
Bonica, A., Chilton, A., Rozema, K., & Sen, M. (2018, June 22). The Legal Academy’s Ideological Uniformity. Retrieved from https://www.journals.uchicago.edu/doi/abs/10.1086/698435

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