Changes to Texas Lawyers Advertising and Solicitation Rules: The Highlights

The comprehensive proposal amending Part VII of the Texas Disciplinary Rules of Professional Conduct was recently approved by the Texas Supreme Court, and will took effect on July 1, 2021. The changes were designed to improve, modernize and simplify the advertising and solicitation rules. This summary highlights some of the most notable changes.

Rule 7.01: Communications Concerning A Lawyer’s Services

Provides a general prohibition of false and misleading statements, doing away with the enumerated types of false and misleading statements in the previous version of the rules.

Expands the definition of a misleading statement to provide that: [a] statement is 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 expectation factual foundation, or if the statement is substantially likely to create unjustified expectations about the results the lawyer can achieve.

Defines “advertisement” and provides a new definition of “solicitation communication”. While an advertisement is a communication directed to the general public, whereas a solicitation is directed to a specific individual, both require that the communication to be “substantially motivated by pecuniary gain”. These definitions are significant in part because some of the updated rules in later sections only apply to solicitations or advertisements.

Expressly provides that trade names are permitted provided the trade name is not false or misleading.

Rule 7.02: Advertisements

Under the amended rule:

an advertisement (1) must identify a lawyer responsible for its content (and the lawyer’s primary practice location); (2) may disclose the lawyer has been certified or designated as possessing special competence, provided certain requirements are met; and (3) must disclose whether a client who is represented on a contingent fee basis will be obligated to pay for other expenses, such as litigation costs.

Deletes Rule 7.02(a)(4), which prohibits comparisons to other lawyers that are not based solely on opinion. Lawyers are still prohibited from making unsubstantiated claims under Rule 7.01.

Rule 7.03: Solicitation And Other Prohibited Communications

Clarifies that the anti-solicitation ban is not limited to in-person contact, but also applies to “telephone, social media, or electronic communication initiated by a lawyer, or by a person acting on behalf of a lawyer, that involves communication in a live or electronically interactive manner.”

Expressly provides that solicitation communications with “a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters” is permissible.

Continues to prohibit any communication that involves “coercion, duress, overreaching, intimidation, or undue influence.”

“Nominal Gifts” given as thanks to nonlawyers for soliciting or referring prospective clients, are permitted if they are “neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.”

Reciprocal referral agreements between another lawyer or nonlawyer professional are allowed if “(i) the…agreement is not exclusive; (ii) clients are informed of the existence and nature of the agreement; and (iii) the lawyer exercises independent professional judgment in making referrals.”

Rule 7.04: Filing Requirements For Advertisements And Solicitation Communications

Filing requirements for certain advertisements and solicitation communications still apply.

Lawyers are also able to seek pre-approval of both advertisements and solicitation communications by submitting the proposed advertisement or solicitation communication to the Advertising Committee not fewer than 30 days prior to the date of dissemination.

Rule 7:05: Communications Exempt From Filing Requirements

The amended rule incorporates most of the exemptions for basic information about a lawyer or law firm in the now deleted Rule 7.07(e) (such as names, contact information, court admissions, educational background, license, foreign language abilities, and board specializations).

Rule 7.05 also expands situations in which advertisements or solicitation communications are exempt from the filing requirements under Rule 7.04. Some of the most notable include:

“Any communication of a bone fide nonprofit legal aid organization that is used to educate members of the public about the law or to promote the availability of free or reduced-fee legal services.”

Most content on law firm websites. Under the new rule, the law firm’s homepage must be filed, unless content on the homepage is covered by other exemptions.

Professional newsletters that are exempt if sent to “(1) existing or former clients; (2) other lawyers or professionals; (3) persons known by the lawyer to be experienced users of the type of legal services involved for business matters; (4) members of a nonprofit organization which has required that members received the newsletter; or (5) persons who have asked to receive the newsletter.”

A solicitation communication “directed by a lawyer to (1) another lawyer; (2) person who has a family, close personal, or prior business or professional relationship with the lawyer; or (3) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters.”

Communications in social media and other media that is either “primarily informational, educational, political, or artistic in nature, or made for entertainment purposes; or (2) consists primarily of the type of information commonly found on the professional resumes of lawyers” provided the posts do not expressly offer legal services.

Rule 7.06: Prohibited Employment

This Rule deals with three different situations: personal disqualification, imputed disqualification, and referral-related payments.

Should a lawyer violate Rules 7.01 through 7.03, 8.04(a)(2), or 8.04(a)(9), the attorney cannot accept or continue to provide representation. Other lawyers in the firm cannot provide representation if they knew or reasonably should have known that the employment was procured by conduct prohibited in these Rules.

If a lawyer knows or reasonably should know that a case referred to the lawyer or the lawyer’s law firm was obtained by violation of the advertising rules or other specified provisions, the lawyer can continue to provide representation only if the lawyer does not pay anything of value to the person making the referral.

By Lauren Bianchini