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THE PROCESS AND YOUR COMMENTS

Proposed amendments to the Rules of the North Carolina State Bar are published for comment during the quarter after the council of the North Carolina State Bar approves their publication. The proposed amendments are published in the North Carolina State Bar's Journal and on this website. After publication for comment, the proposed rule amendments are considered for adoption by the council at its next quarterly meeting. If adopted, the rule amendments are submitted to the North Carolina Supreme Court for approval. Amendments become effective upon approval by the court. Unless otherwise noted, proposed additions to rules appear in in bold and underlined print, deletions are interlined. Proposed amendments to the Rules of Professional Conduct appear at the end of the page.

The State Bar welcomes your comments regarding proposed amendments to the rules. Please adress them to Alice Mine

Highlights

  • Comprehensive proposed amendments to the rules on legal advertising in the Rules of Professional Conduct are published for comment. 

  • A proposed amendment to the Preamble to the Rules of Professional Conduct is published for comment. The amendment identifies the avoidance of discriminatory conduct while acting in a professional capacity as a value of the provision. 

Amendments Pending Supreme Court Approval

At its meeting, July 24, 2020, the Council of the North Carolina State Bar voted to adopt the following rule amendments for transmission to the North Carolina Supreme Court for approval. (For the complete text of the proposed rule amendments, see the Spring and Summer 2020 editions of the Journal or visit the State Bar website.)

Proposed Amendments to the Rules on the Annual Membership Fee

27 N.C.A.C. 1A, Section .0200, Membership—Annual Membership Fee

The proposed amendments make the language of Rule .0203 consistent with the authorizing statute and delay imposition of the late fee until September 1, 2020, for the 2020 calendar year only.

Proposed Amendments to the Discipline Rules

27 N.C.A.C. 1B, Section .0100, Discipline and Disability Rules

The proposed amendments eliminate the requirements that letters of warning, admonitions, reprimands, and censures issued by the Grievance Committee be served by certified mail or personal service when valid service has previously been accomplished upon the respondent.

Proposed Amendments to the Rules on Reinstatement from Inactive Status and Administrative Suspension

27 N.C.A.C. 1D, Section .0900, Procedures for the Administrative Committee

The proposed amendments to Rule .0902 and Rule .0904 eliminate the six-hour cap on online CLE when fulfilling the requirement for reinstatement from inactive status and from administrative suspension.

Proposed Amendments to the Certification Standards for the Immigration Law Specialty

27 N.C.A.C. 1D, Section .2600, Certification Standards for the Immigration Law Specialty

The proposed amendments update and clarify the requirements for substantial involvement for certification as a specialist in immigration law.

Proposed Amendments to the Rules on Prepaid Legal Services Plans

27 N.C.A.C. 1E, Section .0300, Rules Concerning Prepaid Legal Services Plans

The proposed amendments to the rules on prepaid legal services plans are comprehensive and include the following: incorporating the registration, renewal, and amendment forms in the rules; eliminating the requirement that the State Bar review plan documents to determine whether representations made in the registration, renewal, and amendment forms are true; and specifying that registration and renewal fees shall be in amounts to be determined by the State Bar Council. During the publication period following the January meeting, comments on the proposed amendments were received. At its meeting on April 17, 2020, the council deferred action on the proposed amendments until its July meeting when it considered modifications to the proposed amendments in response to the comments received. The council accepted the modifications, but determined that the modifications were not substantive and did not require republication.

Proposed Amendments to the Rules Governing Admission to the Practice of Law

Rules Governing Admission to the Practice of Law in the State of North Carolina
Section .0500, Requirements for Applicants; Section .0600, Moral Character and General Fitness; Section .1200, Board Hearings

The North Carolina Board of Law Examiners proposed amendments to its admission rules that streamline the processing of comity, military-spouse comity, and transfer applications that do not present character and fitness issues.

Proposed Amendments 

At its meeting on July 24, 2020, the council voted to publish for comment the following proposed rule amendments:

Proposed Amendments to the Student Practice Rules

27 N.C.A.C.1C, Section .0200, Rules Governing the Practical Training of Law Students

The proposed rule amendments clarify the different forms of student practice placements outside the law school and the supervision requirements for those placements. In addition, throughout the rules, the term “student intern” is replaced with the term “certified law student” to avoid confusion between student practice in law school clinics and practice placements outside the law school.

.0201 Purpose

The rules in this subchapter are adopted for the following purposes: to support the development of clinical experiential legal education programs at North Carolina’s law schools in order that the law schools may provide their students with supervised practical training of varying kinds during the period of their formal legal education; to enable law students to obtain supervised practical training while serving as legal interns certified law students for government agencies; and to assist law schools in providing substantial opportunities for student participation and experiential education in pro bono service.

.0202 Definitions

The following definitions shall apply to the terms used in this section:

(a) Clinical legal education program - ...

(b) Eligible persons - ...

(c) Certified law student – A law student who is certified to work in conjunction with a supervising attorney to provide legal services to clients under the provisions of this subchapter.

Field placement – Practical training opportunities within a law school’s clinical legal education program that place students in legal practice settings external to the law school. Students in a field placement represent clients or perform other lawyering roles under the supervision of practicing lawyers or other qualified legal professionals. Faculty have overall responsibility for assuring the educational value of the learning in the field. Supervising attorneys provide direct feedback and guidance to the students. Site supervisors have administrative responsibility for the legal intern program at the field placement. Such practical training opportunities may be referred to as “externships.”

(d) Government agencies - The federal or state government, any local government, or any agency, department, unit, or other entity of federal, state, or local government, specifically including a public defenders office or a district attorney’s office.

(e) Law school - ...

(g) Legal intern - A law student who is certified to provide supervised representation to clients under the provisions of the rules of this subchapter.

(h) Legal services organization - A nonprofit North Carolina organization organized to operate in accordance with N.C. Gen. Stat. §84-5.1.

(h) (i) Pro bono activity – An opportunity while in law school for students to provide legal services to those unable to pay, or otherwise under a disability or disadvantage, consistent with the objectives of Rule 6.1 of the Rules of Professional Conduct.

(i) (j) Rules of Professional Conduct – The Rules of Professional Conduct adopted by the Council of the North Carolina State Bar, approved by the North Carolina Supreme Court, and in effect at the time of application of the rules in this subchapter.

(j) (k) Site supervisor – The attorney at a field student practice placement who assumes administrative responsibility for the certified law student program at the field placement and provides the notices statements to the State Bar and the certified law student’s law school required by Rule .0205(b) of this subchapter. A site supervisor may also be a supervising attorney at a field student practice placement.

(k) Student practice placement - Legal practice setting external to the law school that provides the student with practical legal training opportunities. A student participating in a student practice placement represents clients or performs other lawyering roles under the supervision of practicing lawyers. A supervising attorney provides direct feedback and guidance to the student. The site supervisor has administrative responsibility for the certified law student program at the student practice placement. Such practical training opportunities include the following:

(1) Externship – A course within a law school’s clinical legal education program in which the law school places the student in a legal practice setting external to the law school. An externship may include placement at a government agency.

(2) Government internship – A practical training opportunity in which the student is placed in a government agency and no law school credit is earned. A government internship may be facilitated by the student’s law school or obtained by the student independently.

(3) Internship – A practical training opportunity in which the student is placed in a legal practice setting external to the law school and no law school credit is earned. An internship may be facilitated by the student’s law school or obtained by the student independently.

(l) Supervising attorney - ...

.0203 Eligibility

To engage in activities permitted by these rules, a law student must satisfy the following requirements:

(a) be enrolled as a J.D. or LL.M. student in a law school approved by the Council of the North Carolina State Bar;

(b) be certified in writing by a representative of his or her law school, authorized by the dean of the law school to provide such certification, as being of good character with requisite legal ability and legal education to perform as a legal intern certified law student, which education shall include satisfaction of the prerequisites for participation in the clinic, externship, or field other student practice placement;

(c) ...;

(d)...; and

(e) certify attest in writing that he or she has read the North Carolina Rules of Professional Conduct and is familiar with the opinions interpretive thereof.

.0203 Form and Duration of Certification

Upon receipt of the written materials required by Rule .0203(b) and (e) and Rule .0205(b), the North Carolina State Bar shall certify that the law student may serve as a legal intern certified law student. The certification shall be subject to the following limitations:

(a) Duration. The certification shall be effective for 18 consecutive months or until the announcement of the results of the first bar examination following the legal intern’s graduation whichever is earlier. If the legal intern passes the bar examination, the certification shall remain in effect until the legal intern is sworn-in by a court and admitted to the bar. For the duration of the certification, the certification shall be transferable from one student practice placement or law school clinic to another student practice placement or law school clinic, provided that (i) all student practice placements are approved by the law school prior to the certified law student’s graduation, and (ii) the supervision and filing requirements in Rule .0205 of this subchapter are at all times satisfied.

(b) Withdrawal of Certification. The certification shall be withdrawn by the State Bar, without hearing or a showing of cause, upon receipt of

(1) notice from a representative of the legal intern’s certified law student’s law school, authorized to act by the dean of the law school, that the legal intern student has not graduated but is no longer enrolled;

(2) notice from a representative of the legal intern’s certified law student’s law school, authorized to act by the dean of the law school, that the legal intern student is no longer in good standing at the law school;

(3) notice from a supervising attorney that the supervising attorney is no longer supervising the legal intern certified law student and that no other qualified attorney has assumed the supervision of the legal intern student; or

(4) notice from a judge before whom the legal intern certified law student has appeared that the certification should be withdrawn.

.0205 Supervision

(a) Supervision Requirements. A supervising attorney shall

(1) for a law school clinic, concurrently supervise an unlimited number of legal intern certified law students if the supervising attorney is a full-time, part-time, or adjunct member of a law school’s faculty or staff whose primary responsibility is supervising legal intern certified law students in a law school clinic and, further provided, the number of legal intern certified law students concurrently supervised is not so large as to compromise the effective and beneficial practical training of the legal intern students or the competent representation of clients;

(2) for a field student practice placement, concurrently supervise no more than two legal intern certified law students; however, a greater number of legal intern certified law students may be concurrently supervised by a single supervising attorney if the(A) an appropriate faculty member of each certified law student’s law school supervisor determines, in his or her reasoned discretion, that the effective and beneficial practical training of the legal interns students will not be compromised, and (B) the supervising attorney determines that the competent representation of clients will not be compromised;

(3) assume personal professional responsibility for any work undertaken by a legal intern certified law student while under his or her supervision;

(4) assist and counsel with a legal intern certified law student in the activities permitted by these rules and review such activities with the legal intern certified law student, all to the extent required for the proper practical training of the legal intern student and the competent representation of the client; and

(5) read, approve and personally sign any pleadings or other papers prepared by a legal intern certified law student prior to the filing thereof, and read and approve any documents prepared by a legal intern certified law student for execution by a client or third party prior to the execution thereof; and

(6) for externships and internships (other than placements at government agencies), ensure that any activities by the certified law student that are authorized by Rule .0206 are limited to representations of eligible persons.

(b) Filing Requirements.

(1) Prior to commencing supervision, a supervising attorney in a law school clinic shall provide a signed statement to the North Carolina State Bar (i) assuming responsibility for the supervision of identified legal intern certified law students, (ii) stating the period during which the supervising attorney expects to supervise the activities of the identified legal intern certified law students, and (iii) certifying that the supervising attorney will adequately supervise the legal intern certified law students in accordance with these rules.

(2) Prior to the commencement of a field student practice placement for a legal intern certified law student(s), the site supervisor shall provide a signed statement to the North Carolina State Bar and to the certified law student’s law school (i) assuming responsibility for the administration of the field placement in compliance with these rules, (ii) identifying the participating legal intern certified law student(s) and stating the period during which the legal intern certified law student(s) is expected to participate in the program at the field placement, (iii) identifying the supervising attorney(s) at the field placement, and (iv) certifying that the supervising attorney(s) will adequately supervise the legal intern certified law student(s) in accordance with these rules.

(3) A supervising attorney in a law school clinic and a site supervisor for a legal intern certified law student program at a field student practice placement shall notify the North Carolina State Bar in writing promptly whenever the supervision of a legal intern certified law student concludes prior to the designated period of supervision.

(c) Responsibilities of Law School Clinic in Absence of legal intern certified law student. During any period when a legal intern certified law student is not available to provide representation due to law school seasonal breaks, graduation, or other reason, the supervising attorney shall maintain the status quo of a client matter and shall take action as necessary to protect the interests of the client until the legal intern certified law student is available or a new legal intern certified law student is assigned to the matter. During law school seasonal breaks, or other periods when a legal intern certified law student is not available, if a law school clinic or a supervising attorney is presented with an inquiry from an eligible person or a legal matter that may be appropriate for representation by a legal intern certified law student, the representation may be undertaken by a supervising attorney to preserve the matter for subsequent representation by a legal intern certified law student. Communications by a supervising attorney with a prospective client to determine whether the prospective client is eligible for clinic representation may include providing immediate legal advice or information even if it is subsequently determined that the matter is not appropriate for clinic representation.

(d) Independent Legal Practice. Nothing in these rules prohibits a supervising attorney in a law school clinic from providing legal services to third parties outside of the scope of the supervising attorney’s employment by the law school operating the clinic.

.0206 Activities

(a) A properly certified legal intern law student may engage in the activities provided in this rule under the supervision of an attorney qualified and acting in accordance with the provisions of Rule .0205 of this subchapter.

(b) Without the presence of the supervising attorney, a legal intern certified law student may give advice to a client, including a government agency, on legal matters provided that the legal intern certified law student gives a clear prior explanation that the legal intern certified law student is not an attorney and the supervising attorney has given the legal intern certified law student permission to render legal advice in the subject area involved.

(c) A legal intern certified law student may represent an eligible person, the state in criminal prosecutions, a criminal defendant who is represented by the public defender, or a government agency in any proceeding before a federal, state, or local tribunal, including an administrative agency, if prior consent is obtained from the tribunal or agency upon application of the supervising attorney. Each appearance before the tribunal or agency shall be subject to any limitations imposed by the tribunal or agency including, but not limited to, the requirement that the supervising attorney physically accompany the legal intern certified law student.

(d) In all cases under this rule in which a legal intern certified law student makes an appearance before a tribunal or agency on behalf of a client who is an individual, the legal intern certified law student shall have the written consent in advance of the client. The client shall be given a clear explanation, prior to the giving of his or her consent, that the legal intern certified law student is not an attorney. This consent shall be filed with the tribunal and made a part of the record in the case. In all cases in which a legal intern certified law student makes an appearance before a tribunal or agency on behalf of a government agency, the consent of the government agency shall be presumed if the legal intern certified law student is participating in a law school externship program or an internship program of the government agency. A statement advising the court of the legal intern’s certified law student’s participation in an externship or internship program of at the government agency shall be filed with the tribunal and made a part of the record in the case.

(e) In all cases under this rule in which a legal intern certified law student is permitted to make an appearance before a tribunal or agency, subject to any limitations imposed by the tribunal, the legal intern certified law student may engage in all activities appropriate to the representation of the client, including, without limitation, selection of and argument to the jury, examination and cross-examination of witnesses, motions and arguments thereon, and giving notice of appeal.

.0207 Use of Student’s Name

(a) A legal intern’s certified law student’s name may properly

(1) be printed or typed on briefs, pleadings, and other similar documents on which the legal intern certified law student has worked with or under the direction of the supervising attorney, provided the legal intern certified law student is clearly identified as a legal intern student certified under these rules, and provided further that the legal intern certified law student shall not sign his or her name to such briefs, pleadings, or other similar documents;

(2) be signed to letters written on the letterhead of the supervising attorney, legal aid clinic, or government agency, provided there appears below the legal intern certified law student’s signature a clear identification that the legal intern student is certified under these rules. An appropriate designation is “Certified Legal Intern Certified Law Student under the Supervision of [supervising attorney]”, and

(3) be printed on a business card, provided the name of the supervising attorney also appears on the business card and there appears below the legal intern certified law student’s name a clear statement that the legal intern student is certified under these rules. An appropriate designation is Certified Legal Intern Certified Law Student under the Supervision of [supervising attorney].”

(b) ...

.0208 Field Student Practice Placements

(a) A law student enrolled participating in a field student practice placement at an organization, entity, agency, or law firm, or at a government agency, shall be certified as a legal intern if the law student will (i) provide legal advice or services in matters governed by North Carolina law to eligible persons or government agencies outside the organization, entity, agency, or law firm or to the government agency where the student is placed, or (ii) appear before any North Carolina tribunal or agency on behalf of an eligible person or a government agency.

(b) Supervision of a legal intern certified law student enrolled in a field student practice placement may be shared by two or more attorneys employed by the organization, entity, agency, or law firm, or a government agency, provided one attorney acts as site supervisor, assuming administrative responsibility for the a legal intern certified law student program at the field placement and providing the notices to filing with the State Bar and the certified law student’s law school the statements required by Rule .0205(b) of this subchapter. All supervising attorneys at a field student practice placement shall comply with the requirements of Rule .0205(a).

.0209 Relationship of Law School and Clinics; Responsibility Upon Departure of Supervising Attorney or Closure of Clinic

(a) Relationship to Other Clinics.

...

(e) Engagement Letter. In addition to the consent agreement required by Rule .0206(d) of this section for any representation of an individual client in a matter before a tribunal, a written engagement letter or memorandum of understanding with each client is recommended. The writing should state the general nature of the legal services to be provided and explain the roles and responsibilities of the clinic, the supervising attorney, and the legal intern certified law student. See Rule 1.5, cmt. [2] of the Rules of Professional Conduct (“A written statement concerning the terms of the engagement reduces the possibility of misunderstanding.”)

(f) Responsibility upon Departure of Supervising Attorney.

.0210 Pro Bono Activities

(a) Pro Bono Activities for Law Students...

(b) Student Certification Not Required. Regardless of whether the pro bono activity is provided under the auspices of a clinical legal education program or another program or department of a law school, a law student participating in a pro bono activity made available by a law school is not required to be certified as a legal intern if

(1) the law student will not perform any legal service; or

(2) all of the following conditions are satisfied: (i) the student will perform specifically delegated substantive legal services for third parties (clients) under the direct supervision of an attorney who is an active member of the North Carolina State Bar or licensed in another jurisdiction as appropriate to the legal services to be undertaken (the responsible attorney); (ii) the legal services shall not include representation of clients before a tribunal or agency; (iii) the responsible attorney is personally and professionally responsible for the representation of the clients and for the law student’s work product; and (iv) the role of the law student as an assistant to the responsible attorney is clearly explained to each client in advance of the performance of any legal service for the client by the law student.

(c) Law School Faculty and Staff Providing Pro Bono Services Under Auspices of a Clinical Legal Education Program.

...

Proposed Amendments to Rule 1.5, Fees, of the Rules of Professional Conduct

27 N.C.A.C. Chapter 2, Rules of Professional Conduct

Proposed amendments to Rule 1.5 add a specific prohibition on charging a client for responding to an inquiry by a disciplinary authority regarding allegations of professional misconduct by the lawyer; for responding to a Client Security Fund claim alleging wrongful conduct by the lawyer; or responding to and participating in the resolution of a petition for resolution of a disputed fee filed against the lawyer.

Rule 1.5, Fees

(a) A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee or charge or collect a clearly excessive amount for expenses. ...

(b) ...

(g) A lawyer shall not enter into an arrangement for, charge, or collect anything of value for responding to an inquiry by a disciplinary authority regarding allegations of professional misconduct by the lawyer, for responding to a Client Security Fund claim alleging wrongful conduct by the lawyer, or for responding to and participating in the resolution of a petition for resolution of a disputed fee filed against the lawyer.

Comment

[1] ...

[13] Lawyers have a professional obligation to respond to inquiries by disciplinary authorities regarding allegations of their own professional misconduct, to respond to Client Security Fund claims alleging wrongful conduct by the lawyer, and to respond to and participate in good faith in the fee dispute resolution process. It is improper for a lawyer to charge a client for the time expended on these professional obligations because they are not legal services that a lawyer provides to a client, but rather they advance the interests of the public and the profession.

Proposed Amendment to the Preamble of the Rules of Professional Conduct

The Preamble to the North Carolina Rules of Professional Conduct sets forth the values of the legal profession in North Carolina. Upon the recommendation of the Ethics Committee, the council is publishing a proposed amendment to the Preamble that identifies the avoidance of discriminatory conduct while acting in a professional capacity as a fundamental value of the profession. Although the council approved a substantially similar amendment to the Preamble in 2010, the North Carolina Supreme Court did not approve the amendment at that time. The comments of the membership are encouraged and welcomed.

The Ethics Committee is also considering two additional proposed amendments to the Rules of Professional Conduct, including whether Rule 8.4, Misconduct, should be amended to include a provision that is the same or similar to paragraph (g) of ABA Model Rule 8.4, which provides as follows:

It is professional misconduct for a lawyer to:...(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

A subcommittee of the Ethics Committee will study this question and another ethics subcommittee will study a proposal to include awareness of implicit bias in the description of competency in the comment to Rule 1.1. Comments on these proposals are encouraged.

0.1 Preamble: A Lawyer's Responsibilities

[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.

[2] ….

[6] While acting in a professional capacity, a lawyer should not discriminate on the basis of a person’s race, gender, national origin, religion, age, disability, sexual orientation, gender identity, marital status, or socioeconomic status. This responsibility of non-discrimination does not limit a lawyer’s right to advocate on any issue, nor does this responsibility limit the prerogative of a lawyer to accept, decline, or withdraw from a representation in accordance with these rules.

[6][7] ...

[re-numbering remaining paragraphs]

Proposed Amendments to Rules on Lawyer Advertising

In August 2018, the American Bar Association amended the Model Rules of Professional Conduct on advertising (formerly Model Rules 7.1 through 7.5). The ABA identified three primary concerns necessitating the review of and amendments to the Model Rules on advertising. First, the need for consistency among the different jurisdictions’ lawyer advertising rules—the ABA explained that lawyers in the 21st century increasingly practiced in multiple jurisdictions, and that a “breathtaking variety” in advertising rules across the nation made compliance by lawyers and law firms with multi-jurisdictional practices unnecessarily complex. Second, the substantial presence and impact that social media and the Internet has had on business generally, including the practice of law. Third, recent trends in First Amendment and antitrust law suggested burdensome and unnecessary restrictions on lawyer commercial speech may be unlawful. The ABA explained that, with these considerations in mind, the goals for amending the Model Rules were to eliminate compliance confusion and promote consistency in lawyer advertising rules, to provide lawyers and regulators across the nation with updates to the advertising rules that would protect clients from false and misleading advertising while freeing lawyers to use expanding technologies to communicate the availability of their services, and to increase consumer access to accurate information about legal services.

In April 2018, then-State Bar President John Silverstein appointed a special committee of the State Bar Council to review the ABA’s proposed amendments to the Model Rules on advertising. The committee met a total of 14 times between April 2018 and July 2020. The committee reviewed each amendment made to the Model Rules on advertising, comparing the Model Rules to the corresponding provision in the North Carolina Rules of Professional Conduct (Rules 7.1 through 7.5), and determining whether to recommend adoption of the Model Rule, retention of the North Carolina Rule, or some other alternative. For two years, the committee thoughtfully considered each word in both the Model Rules and the North Carolina Rules on advertising in determining what would protect the public, while also recognizing the practical realities of practicing law today. Similar to the stated goals of the Model Rule amendments, the committee sought to strengthen and prioritize the prohibition on false and misleading communications concerning a lawyer’s services; to streamline the Rules on advertising and eliminate unnecessary or unclear provisions; to update the Rules to reflect the current state of society and the profession, including the recognition of technology’s presence in our personal and professional lives and the evolution of the consuming public; and to enable lawyers effectively and truthfully to communicate the availability of legal services, including utilizing new technologies. With these worthy goals and considerations in mind, the committee adopted the Model Rule provision when appropriate in pursuit of consistency with both the Model Rules and potentially other jurisdictions. However, the committee remained committed to the ultimate goal of protecting the public in North Carolina; to that end, the committee deviated from the Model Rules when necessary and appropriate.

With the approval of the State Bar Council, the committee’s recommended amendments to the Rules of Professional Conduct on advertising appear below. While some amendments clarify long-standing Rules, others present significant changes. For example, under these proposed amendments, lawyers are permitted to give nominal gifts as an expression of appreciation for recommending a lawyer’s services; the various labeling requirements for targeted mail communications are eliminated; and the bulk of the rules previously listed in Rules 7.4 and 7.5 are relocated to the comments of Rules 7.1 and 7.2.

The State Bar Council now solicits the profession’s feedback on these proposed amendments. Comments, which are welcome and encouraged, can be emailed to ethicscomments@ncbar.gov.

Rule 7.1, Communications Concerning a Lawyer’s Services

(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:

(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;. Such communications include but are not limited to a statement that

(2) is likely to create an unjustified expectation about results the lawyer can achieve,; a statement that or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or a statement that

(3) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.

(b) A communication by a lawyer that contains a dramatization depicting a fictional situation is misleading unless it complies with paragraph (a) above and contains a conspicuous written or oral statement, at the beginning and the end of the communication, explaining that the communication contains a dramatization and does not depict actual events or real persons.

Comment

False and Misleading Communications

[1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

[2] Misleading tTruthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also 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 factual foundation. A truthful statement is also misleading if presented in a way that creates a substantial likelihood that a reasonable person would believe the lawyer’s communication requires that person to take further action when, in fact, no action is required.

[3] An advertisement A communication that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated claim about a lawyer’s or law firm’s services or fees, or an unsubstantiated comparison of the lawyer’s or law firm’s services or fees with the services or fees those of other lawyers or law firmsmay be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison or claim can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.

[4] It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). See also Rule 8.4(e) for the prohibition against stating or implying an ability to improperly influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.

Firm Names, Letterheads, and Professional Designations

[5] Firm names, letterhead, and professional designations are communications concerning a lawyer’s services. A firm may be designated by the names of all or some of its current principals or by the names of deceased or retired principals where there has been a succession in the firm’s identity. The name of a retired principal may be used in the name of a law firm only if the principal has ceased the practice of law. A lawyer or law firm also may be designated by a trade name, a distinctive website address, social media username, or comparable professional designation that is not misleading. A law firm name or designation is misleading if it implies a connection with a government agency, with a deceased or retired lawyer who was not a former principal of the firm, with a lawyer not associated with the firm or a predecessor firm, with a nonlawyer, or with a public or charitable legal services organization. If a firm uses a trade name that includes a geographical name such as “Springfield Legal Clinic,” an express statement explaining that it is not a public or charitable legal services organization may be required to avoid a misleading implication.

[6] A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

[7] Lawyers may not imply or hold themselves out as practicing together in one firm when they are not a firm, as defined in Rule 1.0(d), because to do so would be false and misleading. It is also misleading to use a designation such as “Smith and Associates” for a solo practice.

[8] This Rule does not prohibit the employment by a law firm of a lawyer who is licensed to practice in another jurisdiction, but not in North Carolina, provided the lawyer’s practice is exclusively limited to areas that do not require a North Carolina law license. The lawyer’s name may be included in the firm letterhead, provided all communications by such lawyer on behalf of the firm indicate the jurisdiction in which the lawyer is licensed as well as the fact that the lawyer is not licensed in North Carolina.

[9] If law offices are maintained in another jurisdiction, the law firm is an interstate law firm and must register with the North Carolina State Bar as required by 27 N.C. Admin. Code 1E.0200 et seq.

Dramatizations

[10] Dramatizations of fictional cases in video advertisements are potentially misleading. See 2010 FEO 9, RPC 164. A communication by a lawyer that contains a dramatization depicting a fictional situation is not misleading if it complies with paragraph (a) above and contains a conspicuous written or oral statement, at the beginning and the end of the communication, explaining that the communication contains a dramatization and does not depict actual events or real persons.

Rule 7.2 Advertising Communications Concerning a Lawyer’s Services: Specific Rules

(a) Subject to the requirements of Rules 7.1 and 7.3, a A lawyer may advertise communicate information regarding the lawyer’s services through written, recorded or electronic communication, including public any media.

(b) A lawyer shall not compensate, give, or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a not-for-profit lawyer referral service that complies with Rule 7.2(d), an intermediary organization that complies with Rule 7.4 or a prepaid or group legal services plan that complies with Rule 7.3(d) 27 N.C. Admin. Code 1E.0301 et seq.; and

(3) pay for a law practice in accordance with Rule 1.17; and

(4) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.

(c) A lawyer shall not state that the lawyer specializes or is a specialist in a field of practice unless:

(1) the lawyer is certified as a specialist in the field of practice by:

(A) the North Carolina State Bar;

(B) an organization that is accredited by the North Carolina State Bar; or

(C) an organization that is accredited by the American Bar Association under procedures and criteria endorsed by the North Carolina State Bar; and

(2) the name of the certifying organization is clearly identified in the communication.

(c)(d) Any communication made pursuant to under this Rule, other than that of a lawyer referral service as described in paragraph (d), shall must include the name and office address contact information of at least one lawyer or law firm responsible for its content.

(d) A lawyer may participate in a lawyer referral service subject to the following conditions:

(1) the lawyer is professionally responsible for its operation including the use of a false, deceptive, or misleading name by the referral service;

(2) the referral service is not operated for a profit;

(3) the lawyer may pay to the lawyer referral service only a reasonable sum which represents a proportionate share of the referral service’s administrative and advertising costs;

(4) the lawyer does not directly or indirectly receive anything of value other than legal fees earned from representation of clients referred by the service;

(5) employees of the referral service do not initiate contact with prospective clients and do not engage in live telephone or in-person solicitation of clients;

(6) the referral service does not collect any sums from clients or potential clients for use of the service; and

(7) all advertisements by the lawyer referral service shall:

(A) state that a list of all participating lawyers will be mailed free of charge to members of the public upon request and state where such information may be obtained; and

(B) explain the method by which the needs of the prospective client are matched with the qualifications of the recommended lawyer.

Comment

[1] To assist the public in learning about and obtaining legal services, lawyers are permitted to make known their services not only through reputation, but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers may entail the risk of practices that are misleading or overreaching.

[2][1] This Rule permits public dissemination of information concerning a lawyer’s name or law firm’s name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Television, the Internet, and other forms of electronic communication are now among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. But see Rule 7.1(b) for the disclaimer required in any advertisement that contains a dramatization and see Rule 7.3(a) for the prohibition against a solicitation through a real-time electronic exchange initiated by the lawyer.

[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

[5] “Electronic communication(s),” as used in Section 7 of the Rules of Professional Conduct, refers to the transfer of writing, signals, data, sounds, images, signs or intelligence via an electronic device or over any electronic medium. Examples of electric communications include, but are not limited to, websites, email, text messages, social media messaging and image sharing. A lawyer who sends electronic communications to advertise or market the lawyer’s professional services must comply with these Rules and with any state or federal restrictions on such communications. See, e.g., N.C. Gen. Stat. §75-104; Telephone Consumer Protection Act, 47 U.S.C. §227; and 47 CFR 64.

Paying Others to Recommend a Lawyer

[6][2] Except as permitted under paragraphs (b)(1)-(b)(3)(4), lawyers are not permitted to pay others for recommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. Directory listings and group advertisements that list lawyers by practice area, without more, do not constitute impermissible “recommendations.”

[3] Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents, and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff, television and radio station employees or spokespersons, and website designers. Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rule 1.5(e)(division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s service). To comply with Rule 7.1, a lawyer must not pay a lead generator if the lead generator states, implies, or creates an impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4(a)(duty to avoid violating the Rules through the acts of another).

[4] Paragraph (b)(4) permits a lawyer to give nominal gifts as an expression of appreciation to a person for recommending the lawyer’s services or referring a prospective client. The gift may not be more than a token item as might be given for holidays or other ordinary social hospitality. A gift is prohibited if offered or given in consideration of any promise, agreement, or understanding that such a gift would be forthcoming or that referrals would be made or encouraged in the future.

Paying Lead Generators

[5] A lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See comment [2] (definition of “recommendation”). See also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another).

[7] A lawyer may pay the usual charges of a prepaid or group legal services plan or a not-for-profit lawyer referral service. A legal services plan is defined in Rule 7.3(d). Such a plan assists people who seek to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by the public to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit lawyer referral service.

Referrals from Intermediary Organizations and Prepaid Legal Service Plans

[8][6] A lawyer who accepts assignments or referrals from a prepaid or group legal service plan or referrals from a lawyer referral service an intermediary organization must act reasonably to assure that the activities of the plan or service organization are compatible with the lawyer’s professional obligations. See Rule 5.3, Rule 7.3, and Rule 7.4. A prepaid legal service plan assists people who seek to secure legal representation. Intermediary organizations, including lawyer referral services, are understood by the public to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Any lawyer who participates in a legal services plan or lawyer referral service is professionally responsible for the operation of the service in accordance with these rules regardless of the lawyer’s knowledge, or lack of knowledge, of the activities of the service. Prepaid Llegal service plans and lawyer referral services intermediary organizations may communicate with the public, but such communication must be in conformity with these Rules; notably, such communication must not be false or misleading. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead prospective clients to think that it was a lawyer referral service sponsored by a state agency or bar association. The term “referral” implies that some attempt is made to match the needs of the prospective client with the qualifications of the recommended lawyer. To avoid misrepresentation, paragraph (d)(7)(B) requires that every advertisement for the service must include an explanation of the method by which a prospective client is matched with the lawyer to whom he or she is referred. In addition, the lawyer may not allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.

Specialty Certification

[7] The use of the word “specialize” in any of its variant forms connotes to the public a particular expertise often subject to recognition by the state. Indeed, the North Carolina State Bar has instituted programs providing for official certification of specialists in certain areas of practice. Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law. Certifying organizations are expected to apply standards of experience, knowledge, and proficiency to ensure that a lawyer’s recognition as a specialist is meaningful and reliable. To avoid misrepresentation and deception, a lawyer may not communicate that the lawyer has been recognized or certified as a specialist in a particular field of law, except as provided by this Rule. The Rule requires that a representation of specialty may be made only if the certifying organization is the North Carolina State Bar, an organization accredited by the North Carolina State Bar, or an organization accredited by the American Bar Association under procedures approved by the North Carolina State Bar. To ensure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization or agency must be included in any communication regarding the certification.

[8] A lawyer may, however, describe his or her practice without using the term “specialize” in any manner which is truthful and not misleading. This Rule specifically permits a lawyer to indicate areas of practice in communications about the lawyer’s services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted to so indicate. The lawyer may, for instance, indicate a “concentration” or an “interest” or a “limitation.”

Contact Information

[9] This Rule requires that any communication about a lawyer or law firm’s services include the name of, and contact information for, the lawyer or law firm. Contact information includes a website address, a telephone number, an email address, or a physical office location.

Rule 7.3 Direct Contact with Potential Clients Solicitation of Clients

(a) “Solicitation” or “solicit” denotes a communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.

(a)(b) A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the person contacted contact is with a:

(1) is a lawyer; or

(2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm.; or

(3) person who routinely uses for business purposes the type of legal services offered by the lawyer.

(b)(c) A lawyer shall not solicit professional employment from a potential client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress, or harassment, compulsion, intimidation, or threats.

(c) Targeted Communications. Unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2), every written, recorded, or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the statement, in capital letters, “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES” (the advertising notice), which shall be conspicuous and subject to the following requirements:

(1) Written Communications. Written communications shall be mailed in an envelope. The advertising notice shall be printed on the front of the envelope, in a font that is as large as any other printing on the front or the back of the envelope. If more than one color or type of font is used on the front or the back of the envelope, the font used for the advertising notice shall match in color, type, and size the largest and widest of the fonts. The front of the envelope shall contain no printing other than the name of the lawyer or law firm and return address, the name and address of the recipient, and the advertising notice. The advertising notice shall also be printed at the beginning of the body of the enclosed written communication in a font as large as or larger than any other printing contained in the enclosed written communication. If more than one color or type of font is used on the enclosed written communication, then the font of the advertising notice shall match in color, type, and size the largest and widest of the fonts. Nothing on the envelope or the enclosed written communication shall be more conspicuous than the advertising notice.

(2) Electronic Communications. The advertising notice shall appear in the “in reference” or subject box of the address or header section of the communication. No other statement shall appear in this block. The advertising notice shall also appear, at the beginning and ending of the electronic communication, in a font as large as or larger than any other printing in the body of the communication or in any masthead on the communication. If more than one color or type of font is used in the electronic communication, then the font of the advertising notice shall match in color, type, and size the largest and widest of the fonts. Nothing in the electronic communication shall be more conspicuous than the advertising notice.

(3) Recorded Communications. The advertising notice shall be clearly articulated at the beginning and ending of the recorded communication.

(d) This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.

(d)(e) Notwithstanding the prohibitions in paragraph (a) this Rule, a lawyer may participate with a prepaid or group legal service plan in compliance with 27 N.C. Admin. Code 1E.0301 et seq. that uses live person-to-person contact to enroll members or sell subscriptions for the plan to persons who are not known to need legal services in a particular matter covered by the plan, provide that, after reasonable investigation, the lawyer must have a good faith belief that the plan is being operated in compliance with 27 N.C. Admin. Code 1E.0301 et seq., and the lawyer’s participation in the plan does not otherwise violate the Rules of Professional Conduct. subject to the following:

(1) Definition. A prepaid legal services plan or a group legal services plan (“a plan”) is any arrangement by which a person, firm, or corporation, not otherwise authorized to engage in the practice of law, in exchange for any valuable consideration, offers to provide or arranges the provision of legal services that are paid for in advance of any immediate need for the specified legal service (“covered services”). In addition to covered services, a plan may provide specified legal services at fees that are less than what a non-member of the plan would normally pay. The North Carolina legal services offered by a plan must be provided by a licensed lawyer who is not an employee, director or owner of the plan. A prepaid legal services plan does not include the sale of an identified, limited legal service, such as drafting a will, for a fixed, one-time fee.

(2) Conditions for Participation.

(A) The plan must be operated by an organization that is not owned or directed by the lawyer;

(B) The plan must be registered with the North Carolina State Bar and comply with all applicable rules regarding such plans;

(C) The lawyer must notify the State Bar in writing before participating in a plan and must notify the State Bar no later than 30 days after the lawyer discontinues participation in the plan;

(D) After reasonable investigation, the lawyer must have a good faith belief that the plan is being operated in compliance with the Revised Rules of Professional Conduct and other pertinent rules of the State Bar;

(E) All advertisements by the plan representing that it is registered with the State Bar shall also explain that registration does not constitute approval by the State Bar; and

(F) Notwithstanding the prohibitions in paragraph (a), the plan may use in-person or telephone contact to solicit memberships or subscriptions provided:

(i) The solicited person is not known to need legal services in a particular matter covered by the plan; and

(ii) The contact does not involve coercion, duress, or harassment and the communication with the solicited person is not false, deceptive or misleading.

Comment

[1] A solicitation is a communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. Paragraph (b) prohibits a lawyer from soliciting professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or the law firm’s pecuniary gain. In contrast, a A lawyer’s communication typically does not constitute is not a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet electronic searches.

[2] “Live person-to-person contact” means in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications, where the person is subject to a direct personal encounter without time for reflection. Such person-to-person contact does not include chat rooms, text messages, or other written communications that recipients may easily disregard. There is a potential for abuse when a solicitation involves direct in-person, live telephone, or real-time electronic contact by a lawyer with someone known to need legal services. A potential for overreaching exists when a lawyer, seeking pecuniary gain, solicits a person known to be in need of legal services by live person-to-person contact. These forms This form of contact subjects a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately an immediate response. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

[3] This potential for abuse overreaching inherent in direct in-person, live telephone, or real-time electronic solicitation live person-to-person contact justifies its prohibition, particularly because since lawyers have alternative means of conveying necessary information to those who may be in need of legal services. In particular, communications can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. These forms of communications and solicitations make it possible for the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the public to direct in-person, telephone or real-time electronic live person-to-person persuasion that may overwhelm a person’s judgment.

[4] The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to the public, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct in-person, live telephone, or real-time electronic live person-to-person contact can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

[5] There is far less likelihood that a lawyer would engage in abusive practices overreaching against a former client, or a person with whom the lawyer has a close personal, or family, business, or professional relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer’s pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer or is known to routinely use the type of legal services involved for business purposes. Examples include persons who routinely hire outside counsel to represent the entity; entrepreneurs who regularly engage business, employment, or intellectual property lawyers; small business proprietors who routinely hire lawyers for lease or contract issues; and other people who routinely retain lawyers for business transactions or formations. Consequently, the general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not applicable in those situations. Also, p Paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.

[6] But even permitted forms of solicitation can be abused. Thus, any A solicitation which that contains information which is false or misleading information within the meaning of Rule 7.1, which involves coercion, duress, or harassment, compulsion, intimidation, or threats within the meaning of Rule 7.3(b)(c)(2), or which that involves contact with someone who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(c)(1) is prohibited. Moreover, if after sending a letter or other communication as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the recipient of the communication may violate the provisions of Rule 7.3(b).

Contact to Establish Prepaid Legal Service Plan

[7] This Rule is does not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries, or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer’s firm is willing to offer. This form of communication is not directed to people who are seeking legal services for themselves. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become potential prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.

[8] Paragraph (c) of this Rule requires that all targeted mail solicitations of potential clients must be mailed in an envelope on which the statement, “This is an advertisement for legal services,” appears in capital letters in a font at least as large as any other printing on the front or the back of the envelope. The statement must appear on the front of the envelope with no other distracting extraneous written statements other than the name and address of the recipient and the name and return address of the lawyer or firm. Postcards may not be used for targeted mail solicitations. No embarrassing personal information about the recipient may appear on the back of the envelope. The advertising notice must also appear in the “in reference” or subject box of an electronic communication (email) and at the beginning of any paper or electronic communication in a font that is at least as large as the font used for any other printing in the paper or electronic communication. On any paper or electronic communication required by this Rule to contain the advertising notice, the notice must be conspicuous and should not be obscured by other objects or printing or by manipulating fonts. For example, inclusion of a large photograph or graphic image on the communication may diminish the prominence of the advertising notice. Similarly, a font that is narrow or faint may render the advertising notice inconspicuous if the fonts used elsewhere in the communication are chubby or flamboyant. The font size requirement does not apply to a brochure enclosed with the written communication if the written communication contains the required notice. As explained in 2007 Formal Ethics Opinion 15, the font size requirement does not apply to an insignia or border used in connection with a law firm’s name if the insignia or border is used consistently by the firm in official communications on behalf of the firm. Nevertheless, any such insignia or border cannot be so large that it detracts from the conspicuousness of the advertising notice. The requirement that certain communications be marked, “This is an advertisement for legal services,” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.

[8] Communications authorized by law or ordered by a court or tribunal include a notice to potential members of a class in class action litigation.

[9] See Rule 7.2, cmt. [5] for the definition of “electronic communication(s)” as used in paragraph (c)(2) of this Rule. A lawyer may not send electronic or recorded communications if prohibited by law. See, e.g., N.C. Gen. Stat. §75-104; Telephone Consumer Protection Act 47 U.S.C. §227; and 47 CFR 64. “Real-time electronic contact” as used in paragraph (a) of this Rule is distinct from the types of electronic communication identified in Rule 7.2, cmt. [5]. Real-time electronic contact includes, for example, video telephony (e.g., FaceTime) during which a potential client cannot ignore or delay responding to a communication from a lawyer.

Contact to Enroll Members in Prepaid Legal Service Plan

[10][9] Paragraph (d)(e) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit enroll members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d)(e) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone person-to-person solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to must be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rule 7.3(d) 27 N.C. Admin. Code 1E.0301 et seq., as well as Rules 7.1, 7.2 and 7.3(bc). See 8.4(a).

Rule 7.4 Communication of Fields of Practice and Specialization

Rule is deleted in its entirety.

Rule 7.5 Firm Names and Letterheads

Rule is deleted in its entirety.

Rule 7.4 Intermediary Organizations

(a) An intermediary organization is a lawyer referral service, lawyer advertising cooperative, lawyer matching service, online marketing platform, or other similar organization that engages in referring consumers of legal services to lawyers or facilitating the creation of lawyer-client relationships between consumers of legal services and lawyers willing to provide assistance. A tribunal or similar government agency that appoints or assigns lawyers to represent parties before the tribunal or government agency is not an intermediary organization under this Rule.

(b) Before and while participating in an intermediary organization, the lawyer shall make reasonable efforts to ensure that the intermediary organization’s conduct complies with the professional obligations of the lawyer, including the following conditions:

(1) The intermediary organization does not direct or regulate the lawyer’s professional judgment in rendering legal services to the client;

(2) The intermediary organization, including its agents and employees, does not engage in improper solicitation pursuant to Rule 7.3;

(3) The intermediary organization makes the criteria for inclusion available to prospective clients, including any payment made or arranged by the lawyer(s) participating in the service and any fee charged to the client for use of the service, at the outset of the client’s interaction with the intermediary organization;

(4) The function of the referral arrangement between lawyer and intermediary organization is fully disclosed to the client at the outset of the client’s interaction with the lawyer;

(5) The intermediary organization does not require the lawyer to pay more than a reasonable sum representing a proportional share of the organization’s administrative and advertising costs, including sums paid in accordance with Rule 5.4(a)(6); and

(6) The intermediary organization is not owned or directed by the lawyer, a law firm with which the lawyer is associated, or a lawyer with whom the lawyer is associated in a firm.

(c) If a lawyer discovers an intermediary organization’s noncompliance with Rule 7.4(b)(1)-(6), the lawyer shall either withdraw from participation or seek to correct the noncompliance. If the intermediary organization fails to correct the noncompliance, the lawyer must withdraw from participation.

Comment

[1] The term “referral” implies that some attempt is made to match the needs of the prospective client with the qualifications of the recommended lawyer.

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