Lawyers often ask about the rules governing advertising. The rules that govern lawyer advertising in Oklahoma are found at 7.1-7.5 of the Oklahoma Rules of Professional Conduct. The rules are in a section of the ORPC titled “Information About Legal Services.”

ORPC 7.1 COMMUNICATION

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 communication considered as a whole not materially misleading.

ORPC 7.1 requires that advertising and any other communications about a lawyer’s services be truthful and not misleading. The prohibition of false or misleading statements includes both explicit falsehoods and falsehoods implicit in other claims. Lawyers have been disciplined for misleading statements regarding qualifications, the number of lawyers in a firm, the legal experience of lawyers in a firm and the outcomes of cases handled by the lawyer or law firm.

The rule also prohibits lawyers from making statements that are literally true but misleading. A lawyer omitting important information, such as information about not being admitted to a particular jurisdiction may violate this rule. A lawyer who provides information in a manner that would cause a reasonable person to reach an unwarranted conclusion about the lawyer or the lawyer’s services may also violate this rule. Omissions about fees, such as advertisements that no fee will be charged, may violate the rule unless it also states that clients are responsible for costs and expenses of litigation.

A literally true statement of past results in a particular case or cases may violate the rule if it creates an unjustified expectation that the lawyer can obtain the same results without reference to specific facts and circumstances of each client’s case. In other jurisdictions, statements of past results have been found to be misleading if not accompanied by a disclaimer that each case is different, and the client's results may vary.

ORPC 7.2 ADVERTISING

ORPC 7.2 allows lawyers to “advertise services through written, recorded or electronic communication, including public media,” but prohibits lawyers from paying a person to recommend the lawyer’s services. The rule also excludes from that prohibition the payment of reasonable costs of advertising or communications allowed by the rules. The lawyer may also pay the usual charges of a legal service plan or a qualified lawyer referral service. Lawyers may refer clients to another lawyer or a non-lawyer professional, pursuant to an agreement not prohibited by the rules, which provides for the referral of clients to the lawyer. The referral agreement may not be exclusive, and the client must be informed of the existence and nature of the agreement.

ORPC 7.3 SOLICITATION

ORPC 7.3 provides, “A lawyer shall not by in-person, live telephone or real-time electronic contact, solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.” There are exemptions for soliciting other lawyers, family members, close friends or former clients. The rule also prohibits soliciting:

professional employment by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if (1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment.

Comment [1] defines solicitation as:

a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer's communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.

ORPC 7.4 FIELDS OF PRACTICE AND CERTIFICATIONS

ORPC 7.4 makes it clear that lawyers may communicate “the fact that the lawyer does or does not practice in particular fields of law or limits his practice to or concentrates in particular fields of law.” The rule also allows lawyers to communicate certification as a specialist in patent and trademark law or admiralty.

Lawyers may communicate certification as a specialist in a particular field by the licensing authority of a state in which the lawyer is admitted and so certified. The lawyer must comply with the requirements of the state in which the lawyer is certified as a specialist. The rule also requires that the lawyer communicate “that such certification is not recognized by the Supreme Court of the State of Oklahoma.” The rule also allows the communication of certification of specialization by the Supreme Court of Oklahoma, should the court allow such certification in the future.

ORPC 7.5 FIRM NAMES AND LETTERHEADS

ORPC 7.5 prohibits the use of a firm name, letterhead or other professional designation if it is false or misleading. A trade name may be used if it does not imply a connection with a government agency or a public or charitable organization. Any trade name must comply with ORPC 7.1.

Law firms with offices in more than one jurisdiction may use the same name in each jurisdiction but must identify the jurisdictional limitations of lawyers not licensed in the jurisdiction where the office is located. The name of a lawyer holding public office may not be used in the name of a law firm during any “substantial period in which the lawyer is not actively and regularly practicing with the firm.” “Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.”

THERE IS MORE

This summary is not exhaustive of the provisions of these rules. I recommend that lawyers review the rules before advertising.

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Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at richards@okbar.org or 405-416-7055. Ethics information is also online at www.okbar.org/ec.