3.9 [ABROGATED] Publicity, Advertising and Solicitation
Text of Rule effective until August 1, 2009.
(a) False Advertising Forbidden. A lawyer shall not, on behalf of the lawyer or any affiliated lawyer, knowingly use, or assist or participate in the use of, any form of public communication containing a false, fraudulent, misleading, or deceptive statement or claim. A public communication is any communication, through mass media, direct mail, or other means including professional cards, announcements, letterheads, office signs, and similar accoutrements of a law practice.
(b) False Advertising Defined. Without limitation, a false, fraudulent, misleading, or deceptive statement or claim includes a statement or claim that:
(1) Contains a material misrepresentation of fact or law;
(2) Omits to state any material fact necessary to make the statement, in the light of all circumstances, not misleading;
(3) Is intended or is likely to create an unjustified expectation;
(4) Violates Rule 3.8;
(5) Is intended, or is likely, to convey the impression that the lawyer is in a position to influence improperly any court, tribunal, or other public body or official; or
(6) Contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived thereby, or fails to contain reasonable warnings or disclaimers necessary to make the representation or implication not deceptive.
(c) Other Improper Public Communication. A lawyer shall not, on behalf of the lawyer or any affiliated lawyer, knowingly use, or assist, or participate in the use of, any form of public communication that:
(1) Is intended or is likely to result in a legal action being taken, or a legal position being asserted, merely to harass or maliciously injure another; or
(2) Appeals primarily to fear, greed, desire for revenge, or similar emotion.
(d) Paid Publicity. A lawyer shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of, or in return for, professional publicity in a news item. A paid advertisement must be identified as such unless it is apparent from the context that it is a paid advertisement. If a paid advertisement is communicated to the public by use of radio or television, it shall be prerecorded, approved for broadcast by the lawyer, and the prerecording as approved shall be retained by the lawyer for two years. If a public communication is transmitted through the mails, a copy of such communication shall be retained by the lawyer for two years following the mailing.
(e) Multi-jurisdictional Disclosure. A multi-jurisdictional partnership shall disclose, in all public communications containing the names of affiliated lawyers, jurisdictional limitations of those lawyers not licensed to practice in the jurisdiction in which the communication is published.
(f) Recommendation or Solicitation of Employment.
(1) A lawyer shall not solicit employment on behalf of the lawyer or any affiliated lawyer through any form of personal contact:
(i) By using any statement, claim, or device that would violate this rule if part of a public communication;
(ii) By using any form of duress or intimidation, unwarranted suggestions or promises of benefits, or engaging in deceptive, vexatious, or harassing conduct; or
(iii) When the circumstances create an appreciable risk of undue influence by the lawyer or ill-considered action by the person being solicited. Without limitation, such circumstances will be deemed to exist as to the person solicited if that person is in the custody of a law enforcement agency or under treatment in a hospital, convalescent facility, or nursing home, or if that person's mental faculties are impaired in any way or for any reason. Notwithstanding the foregoing, such circumstances shall be deemed not to exist when a lawyer is discussing employment with any person who has, without solicitation by the lawyer or anyone acting for the lawyer, sought the lawyer's advice regarding employment of a lawyer.
(2) A lawyer shall not compensate, or give anything of value to, a person or organization to recommend or secure employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that a lawyer may pay for public communication permitted by these rules and may pay the usual and reasonable fees or dues charged by a lawyer referral service operated, sponsored, or approved by a bar association.
(3) A lawyer shall not knowingly assist or authorize any other person or organization to engage in conduct that would violate this rule if engaged in by the lawyer personally, nor shall a lawyer accept employment when the lawyer knows, or it is obvious, that the person who seeks the lawyer's services does so as a result of conduct prohibited under this rule.
(4) Notwithstanding the other limitations of this rule, a lawyer may participate in, and announce the availability of, an approved courthouse legal assistance program that offers free representation to unrepresented clients.
(g) Suggestion of Need for Legal Services. A lawyer who has given unsolicited advice to a person that the person should obtain counsel or take legal action shall not accept employment resulting from that advice if:
(1) The advice embodies or implies a statement or claim that is false, fraudulent, misleading, or deceptive within the meaning of Rule 3.9(b), or that violates the regulations contained in Rule 3.9(c);
(2) The advice involves the use by the lawyer of any form of duress or intimidation, unwarranted suggestions or promises of benefits, or deceptive, vexatious, or harassing conduct; or
(3) The advice is given under circumstances that create an appreciable risk of undue influence by the lawyer or ill-considered action by the person being advised, within the meaning of Rule 3.9(f)(1)(iii).
(h) Definition. As used in Rule 3.9, "affiliated lawyer" refers to any kind of affiliation for the practice of law and includes, without limitation, partners and associates of a lawyer, lawyers employing a lawyer, lawyers "of counsel" to a lawyer or law firm, lawyers or law firms toward whom a lawyer is "of counsel," and lawyers with whom a lawyer shares offices or any expense or facility of a law practice, whether or not a partnership or any other affiliation exists.