Chapter 5
Advertising and Solicitation
Power Point Presentations: There is one presentation, but it is broken into two sections. One is
for advertising (13 slides) and the other for solicitation (11 slides). Please remember to review
Chapter Hypothetical: The point of this hypothetical is to illustrate that: 1) sometimes just
trying to be helpful can be the wrong thing to do and 2) as innocent as March’s behavior seems,
it is improper.
Lesson Objective: Why do law firms advertise? (pg. 141)
Lecture Suggestion: Well, the practical answer is to get clients so they can make money. Your
students may be too young to remember a time when there were no T.V. advertisements for
drugs or lawyers. The answer used by the courts is to alert the public to an avenue of redress for
problems. Often people don’t know they have a problem that can be addressed through the law.
On the other hand, does advertising stir up frivolous litigation?
Activity Suggestion: Have your students google “Karlena Zachary” for a recent discipline
case of a lawyer who made up some people to work with. She named her solo practice
Lesson Objective: The First Amendment (pg. 141)
Lecture Suggestion: It is possible that your students do not know much about our Constitution.
You might want to check in with them and then fill in any gaps they have. Otherwise the Bates
case doesn’t make sense.
Lesson Objective: First Amendment Regulated (pg. 142)
Lecture Suggestion: The picture on this page should give students pause. A discussion about
“unseemliness” is fun here.
Lesson Objective: How has technology changed the rules of advertising? (pg. 142)
Lecture Suggestion: There is a case from Louisiana where the television advertising rules were
challenged on Constitutional grounds. The Fifth Circuit Court of Appeal used Central Hudson
for its First Amendment discussion and Zauderer for its discussion of disclosure requirements.
It’s a long case so your more advanced students could read and analyze it. It’s available to you in
the Chapter 5 Extra Resources folder on paralegalethics.net as Public Citizen (2011).
Here’s a suspension from Texas:
The Fort Lauderdale lawyers who were disciplined for their dog mascot and 1-800 PIT
BULL phone number eventually prevailed against the Florida State Bar. It cost them $100,000
and took 3 years. Is the telephone number worth that?
In South Carolina, there’s a 2009 case where the disciplinary authority used a market
survey to determine if a lawyer ad was misleading. (The tv ad showed the lawyer saying: It’s not
Suspensions
On Oct. 9, 2009, Christopher Dupuy [#24003931], 38, of League City, TX
accepted a six-month, fully probated suspension effective Oct. 9, 2009. An
evidentiary panel of the District 5 Grievance Committee found that Dupuy’s
professional websites contained statements that omitted facts necessary to make
the statements considered as a whole not materially misleading. Also, Dupuy’s
advertisement in a telephone directory did not conspicuously publish the name
of at least one lawyer responsible for the content of such advertisement, and did
not disclose the geographic location, by city or town, of Dupuy’s principal office.
Dupuy failed to file the telephone directory advertisement with the State Bar
Advertising Review Committee.
Dupuy violated Rules 7.02(a)(1) and (a)(2); 7.04(b), (c), and (j); and 7.07(b). He
agreed to pay $2,500 in attorney’s fees and costs.
The opinion available to you in the Chapter 5 Extra Resources folder on paralegalethics.net as
South_Carolina_Anon_Ad.
Lesson Objective: Can paralegals advertise? (pg. 143)
Lecture Suggestion: No, but they do. Have your students bring in telephone directories (aka
Yellow Pages) and share and discuss the paralegal ads there. They can also find paralegal ads on
line.
Activity Suggestion: Have your students go here: http://www.legalnoodle.com/ and write a 5
minute “What I think about the ethics of this kind of advertising…” essay. What are the
potential pitfalls? How can they be avoided?
Check Your Understanding: (pg. 145) 1. Bates v. Arizona held that attorneys have a First
Amendment right to advertise to the general public; 2. One place that a paralegal can advertise is
Lesson Objective: How can I find the law in my state?
Lecture Suggestion: This is the time for your students to find your state law on this issue. My
experience is that this law is very, very technical. It is also my experience that paralegals have
little contact with law firm advertising. If you have experience with it, terrific! If not, there are
Lesson Objective: What is Solicitation? (pg. 146)
Improper: Use the Ohralik case at the end of the chapter.
Also: Review the moratorium rules here. Have your students compare and contrast the rationale
of the Ficker case and the Went For It case. In Ficker, the court took into consideration that
The letter on page 148 is real the names were changed to satisfy the publisher’s rules.
The webpage on page 149 is also real (complete with tacky lay-out) but, again, the names are
changed.
Lesson Objective: Solicitation that is permitted (pg. 150)
Lecture Suggestion: If your students are not familiar with the ACLU, this is a good time to talk
about that or turn it into a research assignment. As despicable as forcible sterilization is, these are
the facts.
Lesson Objective: (pg. 152) What is direct mail?
Lecture Suggestion: Is it true that it is difficult for members of the public to say “no” to in–
person solicitation but they have no problem with direct mail? If that were true, we would stop
doing direct mail. Obviously direct mail from a law office has some sort of psychological effect,
or they wouldn’t do it, right?
Lesson Objective: Can we pay someone for referring a case or client to us?
Lecture Suggestion: No . . . unless you are a lawyer in California. If you don’t have your own
story to tell for this section, use mine: I got a call from a friend. (I’ll call him Bob.) He was in
jail. I don’t know anything about criminal matters so I called a lawyer friend of mine who does
Don’t forget to talk about runners and cappers. Although we touched on this in Chapter 4, this is
where the topic is covered.
Check Your Understanding: (pg 154) 1. referral fee; 2. capper; 3. runner; 4. champerty
Lesson Objective: What is “access to justice?” (pg. 154)
bus filled with children and buried them in a van in the desert. Although I graduated from a very
In the News, at the end of this chapter, is an article from New York about the advertising
restrictions enacted there.
And here is a website you can use for the ABA’s Best Practices for on line advertising:
http://www.abanet.org/elawyering/tool/practices.shtml
Answers to End of Chapter 5 Review Questions
Critical Thinking
1. Had March waited for the person to ask for her business card or other referral to a lawyer,
it would have been fine. Offering her card is improper solicitation. This is a fine line and
2. We are really asking for the student’s opinion so answers will vary. This should say “the
3. This does not have the hallmarks of “solicitation” in that it is not in-person or directed to
4. I hate these computer telephone things. I want to call this improper solicitation in that it
is directed to individuals who have this particular looming issue. On the other hand, it is
5. I wanted to call the destruction of a housing development a “mass disaster” so that this
6. Answers will vary but I cannot imagine anything illegal about selling an informational
pamphlet. It may be tacky, but anyone can write a book that includes non-specific legal
advice, so why not a pamphlet?
Assignments
1. Most states do not allow catchy names because of the potential for harm to the public.
2. I personally do not know anyone who is fooled or confused by the use of actors in lawyer
3. I know you don’t have enough time to teach what you need to teach, but a really fun
thing to do in class is have your students, in teams, create a jingle advertisement for a law
Collaborative Assignments
1. Bring in some phone books and have your students do this in class, or have them bring in
a few pages from the Internet with these ads.
Review Questions
1. We want people to have a lawyer when they need one – for a will or adoption or
2. The two reasons are: 1) to make money by attracting clients and, 2) to make people aware
that they may be entitled to a legal remedy.
3. Helpful legal advertising is temperate and informative. It “teaches” in that it alerts people
to what may be a legal claim, but it does not unduly alarm people. It tells the public the
5. Solicitation is in-person, advertising goes to the general public, but direct mail is
6. Paralegals can advertise to lawyers but not to the general public. The “when” part is
when the paralegal is looking for a job – either freelance or not.
7. There is federal law governing aviation disasters – 45 day moratorium. Most states have
9. Referral fees, in every state but California, are akin to champerty – buying a claim. If
10. The Public Citizens case illustrates that the speed and the breadth at which the internet
works requires different rules for that advertising. Most states prohibit using a fee-based
Notes about the Cases for Consideration
Case #1 Gideon v. Wainwright
Okay. Fine. You want to know why I included this case in the textbook, right? Because it’s a
classic. Not reading Gideon would be like going all the way through paralegal school without
ever seeing 12 Angry Men. It’s such a good example of so many things, not the least of which is
how the Supreme Court changes with time and has periods of expanding the legal rights of
1. The Sixth Amendment clearly states “In ALL criminal prosecutions, the accused SHALL
enjoy the right…to have the Assistance of Counsel for his defence.” The Fourteenth
Amendment (which the Court does not provide for us in the opinion) says:
No state shall make or enforce any law which shall abridge the privileges or immunities
The Gideon opinion gives us a nice little history lesson of applying the Bill of Rights to the
States through the Fourteenth Amendment. (You might want to spend some time breaking down
2. Gideon kept fighting, by the way, in propria persona, handwriting all of his petitions.
His motivation was getting out of jail. Florida kept fighting because of the incredible expense it
saw coming down the road paved with court appointed lawyers.
3. Again, this case is a terrific one for discussing the ebb and flow of the law. This Supreme
Court, headed by Chief Justice Earl Warren, was all about giving the individual rights. This is
the court that gave us Brown v. Board of Education and Miranda v. Arizona.
Case #2 Ohralik v. Ohio State Bar Association
page 162), which would make it protected First Amendment speech. Ohralik did supply the
injured people with information about their rights. The Rules do not prohibit this speech. And he
did advise them to get a lawyer. The Rules do not prohibit that speech, either. And the law does
not prohibit other people (such as claims adjusters) from contacting these injured people and
perhaps talking them into signing releases or settlements.
The court gives us a laundry list of “evils of solicitation” there in Section B but Ohralik argues
that none of those evils happened in this case, so no disciplinary action is warranted.
However, if the state’s interest in prohibiting solicitation is prophylactic, as the court claims it is,
no harm is required to support the state’s interest.
Oh! And what do you think about the concealed tape recorder?
1. The in-person communication is more difficult to say “no” to. So long as the in-person
communication is informative only, no harm done. That communication only breaks the
2. Encourage your students to take Ohralik’s position to answer this question. Don’t we
disrespect these two women when we argue that they cannot reflect calmly and
intelligently before agreeing to this representation?
3. There is no rule against giving legal advice for free.
5. If the state’s interest in prohibiting solicitation is prophylactic, as the court claims it is, no
harm is required to support the state’s interest in regulating (prohibiting) this sort of
speech.
In the News
These questions are all about what your students think, so there are no “correct” answers. If you
are looking for an exercise for your students that gets them up out of their seats, these questions
are good for “four corners” or sliding scale in-class activities. Post a sign on each of the four