7.1 Communications Concerning a Lawyer's Services

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 statement considered as a whole not materially misleading.


COMMENT

[1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

[2] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

[3] An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

[4] See also Rule 8.4(e) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.


REPORTER’S NOTES:

Model Rule 7.1 (2002) prohibits lawyers from making false or misleading communications about the lawyer or the lawyer’s services, including the omission of a fact necessary to make a true statement not misleading. There is no direct analog in the Maine Bar Rules; However, M. Bar R. 3.9(a) prohibits any form of false advertising; and M. Bar R. 3.9(c), prohibits “improper” public communications that are likely to result in legal action “merely to harass or maliciously injure another,” or communications that appeal primarily to “fear, greed, desire for revenge or similar emotions.” Model Rule 7.1 (2002) sets forth a broader prohibition than M. Bar R. 3.9(a) and (c); it covers all false or misleading communications, including advertising permitted by Rule 7.2, whether public or private.

The Task Force believed this rule places a reasonable obligation on lawyers to ensure that their statements about themselves or their legal services are not false or misleading. Because this rule underlines the importance of the integrity of the profession, the Task Force recommended adoption of Model Rule 7.1 as written.