Communications About Legal Services · 4-10% of the exam
21.2.1Public advertising: content rules and constitutional basis (Rule 7.2)
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- Rule 7.2 — Advertising Content Rules and Constitutional Basis
Lawyer advertising is commercial speech protected by the First and Fourteenth Amendments. States may regulate it but may not eliminate it. Courts apply intermediate scrutiny: a substantial government interest, a restriction that directly and materially advances that interest, and narrow tailoring.
Why
People who need a lawyer mostly do not know one, and a market with no advertising leaves them relying on whoever happens to be nearby. The constitutional framework keeps that channel open while leaving states room to answer demonstrated harms, and the identification requirement gives a reader someone to hold responsible for what an ad says.
Plain English
A lawyer may advertise through any medium. Every communication made under Rule 7.2 — an advertisement and a targeted solicitation letter alike — must carry the name of, and contact information for, at least one lawyer or law firm answerable for what it says.
Rule
Rule 7.2 — Advertising Content Rules and Constitutional Basis
Lawyer advertising is commercial speech protected by the First and Fourteenth Amendments.
A state may restrict it only if the regulation:
- Asserts a substantial government interest;
- Directly and materially advances that interest; AND
- Is narrowly tailored.
A complete ban on all lawyer advertising is unconstitutional.
- Permitted media
any (print, television, radio, internet, social media, direct mail).
Required on every communication made under this Rule (Rule 7.2(d)) — advertisements and targeted solicitation letters alike: the name of, and contact information for, at least one lawyer or law firm answerable for its content. Comment [12]: contact information includes a website address, a telephone number, an email address, or a physical office location.
- Permitted content includes
name, firm name, contact information; kinds of services offered; fee basis and payment arrangements; foreign language ability; names of references and (with client consent) clients regularly represented; and other information inviting the attention of those needing legal help.
Constitutional rules on advertising:
Targeted direct mail to persons with known legal needs is protected commercial speech that states may not categorically ban (so held in Shapero v. Kentucky Bar).
A narrow, time-limited restriction on targeted mail — supported by empirical evidence of harm to public trust — survives intermediate scrutiny; a complete ban on targeted mail does not (so held in Florida Bar v. Went For It, Inc.).
Example 1
Ex. 1
A state bars targeted direct mail to accident victims within 45 days. The state bar compiled survey data documenting public frustration and damage to professional image. Ray, a personal-injury lawyer, challenges the rule as unconstitutional.
Give the state's survey data its weight before you judge the 45-day line. Ray loses. A narrow, time-limited restriction on targeted mail survives intermediate scrutiny when empirical evidence supports it, and the 45-day window is exactly that kind of measured restriction. A total ban on direct mail would fail; this one doesn't.
Example 2
Ex. 2
Dan challenges a state rule barring targeted television ads aired within 30 days of a publicized disaster in the affected area. The state submitted empirical reports documenting harm to public trust. Dan argues that any content-specific advertising restriction is unconstitutional per se.
Flip Dan's per se argument into the question a court actually asks. Intermediate scrutiny governs, not per se invalidity. A narrowly drawn, empirically supported, time-limited restriction survives even if it is content-specific. The identification requirement (name and contact information on every communication made under Rule 7.2) is an independently testable content rule. No ABA Model Rule requires pre-approval of lawyer advertisements by the state bar.
Questions · 1
Q 01ch21-e04
Question 1 of 1 · Rule 7.2(d)
Attorney runs a small practice devoted to landlord-tenant disputes on the tenant side. To reach renters, Attorney bought advertising placards for the interior of every bus in the city fleet, and the placards ran for three months. Each placard carries the practice name in large letters, a line describing the kinds of eviction and repair matters the office takes, and a note that fees are charged by the hour. Everything printed on the placard is accurate. The placard gives no telephone number, no email address, no website and no street address, because Attorney wanted riders to search for the practice by name. Several riders found the office without difficulty and became clients. Is Attorney subject to discipline?
Keys 1 to 4 choose.