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Advertising and Solicitation And Judicial Ethics

Advertising and Solicitation And Judicial Ethics. Cameron, Holly, Jessica, Margaret and Tamara. Chapter 8 Advertising and Solicitation. Advertising In RE R.M.J. page 485.

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Advertising and Solicitation And Judicial Ethics

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  1. Advertising and Solicitation And Judicial Ethics Cameron, Holly, Jessica, Margaret and Tamara

  2. Chapter 8Advertising and Solicitation

  3. AdvertisingIn RE R.M.J. page 485 • States retain authority to regulate advertising that is inherently misleading or that has proven to be misleading in practice • Commercial Speech Doctrine (in the context of advertising for professional services) • Truthful advertising related to lawful activities is entitled to the protections of the First Amendment • If the information is misleading or when experience has proven that in fact such advertising is subject to abuse, the states may impose appropriate restrictions • Restrictions may be no broader than reasonably necessary to prevent the deception

  4. In RE R.M.J. continued • If the communication is not misleading, the state may regulate if there is a substantial state interest asserted and the interference with the speech is in proportion to the interest served • Why regulate advertising? The public’s comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the “product” renders advertising is inherently likely to deceive or where

  5. In-Person & Other Real-Time SolicitationOhralik v. Ohio State Bar (Supreme Court, 1978, pp. 503) • Facts: “Ambulance Chaser” Case out of Ohio • Rule: The State (& the State Bar) may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent. • The 1st & 14th Amendments do not protect commercial speech as strictly as other forms of speech. • Why is In-Person Solicitation dangerous/risky for potential clients? • Unsolicited legal advice is not prohibited—acceptance of employment from the advice is. • State Interests versus Personal Rights • No actual harm needs to be shown—prevention of harm is important enough.

  6. Notes: MR 7.3(a)—soliciting clients in person, or on the telephone, or in real time electronically, is prohibited, with exceptions. • Exceptions: When the person contacted (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. • Comment [1]—this is to prevent undue influence, intimidation, & over-reaching. GaRule—how is it different? • Prohibited Forms of Solicitation—seeking employment from a prospective client when a significant motive is pecuniary gain. (MR 7.3(a)). Devoting time & energy to the interests of indigent citizens whose constitutional rights are infringed is not prohibited—difference of pecuniary gain. • Prohibited Methods of Solicitation—using false or misleading information, or using coercion or duress, or contacting un-interested clients can be prohibited, even if the form is not for pecuniary gain/prohibited. Other Notes of Interest

  7. MRPC - RULE 7.3 DIRECT CONTACT WITHPROSPECTIVE CLIENTS (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client 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:

  8. MRPC - RULE 7.3 continued (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2). (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

  9. GA RULE 7.3 (a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer's firm, lawyer's partner, associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, a written communication to a prospective client for the purpose of obtaining professional employment if: • (1) it has been made known to the lawyer that a person does not desire to receive communications from the lawyer; • (2) the communication involves coercion, duress, fraud, overreaching, harassment, intimidation or undue influence; • (3) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or • (4) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer. • (b) Written communications to a prospective client, other than a close friend, relative, former client or one whom the lawyer reasonably believes is a former client, for the purpose of obtaining professional employment shall be plainly marked "Advertisement" on the face of the envelope and on the top of each page of the written communication in type size no smaller than the largest type size used in the body of the letter.

  10. GA Rule 7.3 continued • (c) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by a client; except that the lawyer may pay for public communications permitted by Rule 7.1 and except as follows: • (1) A lawyer may pay the usual and reasonable fees or dues charged by a bona fide lawyer referral service operated by an organization authorized by law and qualified to do business in this state; provided, however, such organization has filed with the State Disciplinary Board, at least annually, a report showing its terms, its subscription charges, agreements with counsel, the number of lawyers participating, and the names and addresses of lawyers participating in the service; • (2) A lawyer may pay the usual and reasonable fees to a qualified legal services plan or insurer providing legal services insurance as authorized by law to promote the use of the lawyer's services, the lawyer's partner or associates services so long as the communications of the organization are not false, fraudulent, deceptive or misleading; • (3) A lawyer may pay the usual and reasonable fees charged by a lay public relations or marketing organization provided the activities of such organization on behalf of the lawyer are otherwise in accordance with these Rules. • (4) A lawyer may pay for a law practice in accordance with Rule 1.17: Sale of Law Practice. • (d) A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer. • (e) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks to employ the lawyer does so as a result of conduct by any person or organization prohibited under Rules 7.3(c)(1), 7.3(c)(2) or 7.3(d): Direct Contact with Prospective Clients. • The maximum penalty for a violation under this Rule is disbarment.

  11. Shapero v Kentucky Bar Ass’npage 514 • Kentucky Rule 3.135 • ABA 7.3 • general mass mailings vs targeted audience • 1st and 14th amendment issues • Undue Influence • Ohralik v Ohio State Bar Ass’n

  12. Florida Bar v Went For It, Incpage 519 • FLA Bar rule prohibits P.I lawyers from sending targeted direct mail solicitation to victims/relatives for 30 days after incident • Violate 1st & 14th amendment?? NO • Attorney Meltenry and referral service seek declaratory and injunctive relief challenging the 30 day black out rule • Bates v State Bar of Arizona

  13. Central Hudson three prong test 1) Government must assert substantial interest in support of regulation 2) government must demonstrate that the restriction on commercial speech directly and materially advances that interest 3) regulation must be narrowly drawn

  14. Interest – intrusion into privacy of victim and family = negative feelings toward profession of law and justice system as a whole • Relation – 2 years public study • “Harm targeted can not be eliminated by a brief journey to the trash can” • narrowly drawn does not mean least restrictive • instead look to the fit between the ends and the means • Reasonable / proportionate

  15. Chapter 9Judicial Ethics

  16. Judicial FunctionUnited States v Microsoftpage 547 • FACTS: Judge gave “embargoed” interviews with select reporters before entering a judgment • Parties where unaware • Violations of Code of Conduct for U.S. Judges (self-enforcing) - Cannon 3A(6), Cannon 2, Canon 3A(4) • Violation of Judicial Code – Section 455(a)

  17. Canon 3A(4) – “…neither initiate nor consider ex parte communications on the merits…of pending proceedings” • Canon 3A(6) – forbids public comment on merits of pending action • Canon 2 – “avoid impropriety and the appearance of impropriety in all activities” • Exceptions (narrow) • Financial consequences of comments • Remedies: Section 455(a) –actual and apparent impropriety

  18. Extra-Judicial ActivitiesIn Re Inquiry of Broadbelt Pg. 554 • “Look Ma! I’m on TV!” • Facts: Municipal court judge provided legal commentaries on pending litigation (outside of New Jersey) to various television programs. • Conduct was found to be in violation of N.J. Code of Judicial Conduct Canons 3A(8) and 2B. • While educational (and therefore not a violation of Canon 4), conduct is nonetheless prohibited if it violates another canon. • Restriction of speech is not unconstitutional because the regulations further the substantial gov’t interest of preserving the integrity of the judiciary and the restrictions are “no greater than necessary”. • Bottom line: Judges should not go on TV and discuss cases pending in other jurisdictions.

  19. Elections and Political ActivityRepublican Party of Minnesota v. WhitePg. 561 • Vote Quimby! • Facts: Candidate running for associate justice of the Minnesota Supreme Court distributed literature throughout his campaign which criticized decisions on issues such as crime, welfare, and abortion. • Issue: Whether Minnesota’s announce clause, which prohibits judicial candidates from announcing his or her views on disputed legal or political issues, is a violation of the First Amendment. • The Court applies the strict-scrutiny test: Respondents have to prove that clause is (1) narrowly tailored to serve a (2) compelling state interest. • The clause was not narrowly tailored to serve the state’s interest of judicial impartiality • Survey Says: Unconstitutional!

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