Attorney advertising rules can be found in the Model Rules of Professional Responsibility (MR). These rules contain the ethical guidelines that lawyers typically must follow. Violating these rules can result in discipline in the form of reprimands, sanctions, fines, or disbarment. MR 7.2 controls how an attorney is allowed to advertise through public media. It permits an attorney to advertise through written or recorded communication, subject to the requirements of MR 7.1 and MR 7.3.
The rules for attorney advertising make a distinction between advertising and solicitation. Traditionally, the term advertising refers to widely distributed statements about the services available from a lawyer or firm. Examples would include a listing in a phone book, a newspaper advertisement, a television commercial, or a radio broadcast. Solicitation is more defined and includes communication directed at an individual or a small group of identified people known to need a particular service.
Advertising and solicitation fall under the umbrella of commercial speech in the United States (US); therefore, some First Amendment protection is available to guard against the authority of a state to regulate and prohibit it. When restricting commercial speech, the government can use no broader restrictions than necessary to further a substantial government interest. The government has been granted authority to restrict and prohibit commercial speech that is false or misleading, that is coercive, or that promotes transactions that are illegal.
One aspect of the advertising rules specifies that a lawyer shall not make false or misleading claims about himself or his services. A communication is considered false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement. It also falls under this umbrella if the communication is likely to create an unjustified expectation about the results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law. Lastly, the communication cannot compare the lawyer's services with the services of other lawyers unless the comparison can be factually substantiated.
The false and misleading portion of this rule also pertains to advertisements that use client testimonials. Some courts have held that testimonials are inherently misleading by focusing the attention of the viewer on favorable client examples and excluding the unfavorable. These testimonials may mislead the reader into thinking certain case results are a function of the lawyer regardless of the merits of individual claims. If a disclaimer is included, some states will accept testimonial advertisements. Another part of the rule states that lawyers shall not state or imply that they have been recognized or certified as specialists in a particular field of law unless they have been granted one of the following titles: Patent Attorney, Admiralty, or lawyers who have been certified as specialists in a field of law by a regulatory authority empowered to grant certification of specialization in that field.
In addition to the restrictions regarding the content of advertising, the rules also cover the methods and constraints on solicitation. Telephone and in-person solicitation is subjected to higher levels of restriction. All communication intended to gain clients is subject to discipline if it involves duress, coercion, and harassment.
