Md. R. Att'y 19-307.2
Cross reference: Maryland Attorneys' Rules of Professional Conduct, Rule 19-301.8(e) (1.8).
Md. R. Att'y 19-307.2
COMMENT
[1] To assist the public in obtaining legal services, attorneys 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 an attorney 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 attorneys entails the risk of practices that are misleading or over-reaching.
[2] This Rule permits public dissemination of information concerning an attorney's name or firm name, address and telephone number; the kinds of services the attorney will undertake; the basis on which the attorney's fees are determined, including prices for specific services and payment and credit arrangements; an attorney'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.
[3] 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 an attorney, 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.
[4] Neither this Rule nor Rule 19-307.3 (7.3) prohibits communications authorized by law, such as notice to members of a class in class action litigation.
[5] Section (a) of this Rule permits communication by mail to a specific individual as well as general mailings, but does not permit contact by telephone or in person delivery of written material except through the postal service or other delivery service.
Record of Advertising--[6] Section (b) of this Rule requires that a record of the content and use of advertising be kept in order to facilitate enforcement of this Rule. It does not require that advertising be subject to review prior to dissemination. Such a requirement would be burdensome and expensive relative to its possible benefits, and may be of doubtful constitutionality.
Paying Others to Recommend an Attorney--[7] An attorney 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 19-301.17 (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 attorney from advertising or recommending the attorney's services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, an attorney may participate in not-for-profit attorney referral programs and pay the usual fees charged by such programs. Section (c) of this Rule does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule.
Assignments or Referrals from a Legal Services Plan or Attorney Referral Service--[8] An attorney who accepts assignments or referrals from a legal services plan or referrals from a attorney referral service must act reasonably to assure that the activities of the plan or service are compatible with the attorney's professional obligations. See Rule 19-305.3 (5.3). Legal service plans and attorney referral services may communicate with prospective clients, but such communications must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead prospective clients to think that it was attorney referral service sponsored by a state agency or bar association. Nor could the attorney allow in-person, telephonic, or real-time contacts that would violate Rule 19-307.3 (7.3).
Reciprocal Referral Agreements with Non-attorney Professionals--[9] An attorney may agree to refer clients to a non-attorney professional, in return for the undertaking of that person to refer clients or customers to the attorney to provide them with legal services. Such reciprocal referral arrangements must not be exclusive or otherwise interfere with the attorney's professional judgment as to making referrals or as to providing substantive legal services. See Rules 19-302.1 (2.1) and 19-305.4 (c) (5.4). The client must also be informed of the existence and nature of the referral agreement. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these Rules. Conflicts of interest created by such arrangements are governed by Rule 19-301.7 (1.7). Referral agreements between attorneys who are not in the same firm are governed by Rule 19-301.5(e) (1.5).
Responsibility for Compliance--[10] Every attorney who participates in communications concerning the attorney's services is responsible for assuring that the specified Rules are complied with and must be prepared to substantiate compliance with those Rules. That may require retaining records for more than the three years specified in section (b) of this Rule.
Model Rules Comparison: This Rule substantially retains existing Maryland language and does not adopt Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, with the exception of: (1) adding in substantial part ABA Rule 7.2(c)(4) as adopted by the ABA House of Delegates on August 13, 2002; (2) adding ABA Comment [7] (Comment [8] above); (3) adding ABA Comment [8] (Comment [9] above).
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