C.R.C.P. app TO CHAPTERS 18 TO 20 R. R. 7.1
COMMENT
[1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2 and solicitations governed by Rule 7.3.
[2] The touchstone of this Rule, as well as Rules 7.2 through 7.4, is that all communications regarding a lawyer’s services must be truthful. Truthful communications regarding a lawyer’s services provide a valuable public service and, in any event, are constitutionally protected. False and misleading statements regarding a lawyer’s services do not serve any valid purpose and may be constitutionally proscribed.
[3] It is not possible to catalog all types and variations of communications that are false or misleading. Nevertheless, certain types of statements recur and deserve special attention.
[4] One of the basic covenants of a lawyer is that the lawyer is competent to handle those matters accepted by the lawyer. Rule 1.1. It is therefore false and misleading for a lawyer to advertise for clients in a field of practice where the lawyer is not competent within the meaning of Rule 1.1.
[5] Characterizations of a lawyer’s fees such as “cut-rate”, “lowest” and “cheap” are likely to be misleading if those statements cannot be factually substantiated. Similarly, characterizations regarding a lawyer’s abilities or skills have the potential to be misleading where those characterizations cannot be factually substantiated. Equally problematic are factually unsubstantiated characterizations of the results that a lawyer has in the past obtained. Such statements often imply that the lawyer will be able to obtain the same or similar results in the future. This type of statement, due to the inevitable factual and legal differences between different representations, is likely to mislead prospective clients.
[6] Statements that a law firm has a vast number of years of experience, by aggregating the experience of all members of the firm, provide little meaningful information to prospective clients and have the potential to be misleading.
[7] Statements such as “no recovery, no fee” are misleading if they do not additionally mention that a client may be obligated to pay costs of the lawsuit. Any communication that states or implies the client does not have to pay a fee if there is no recovery shall also disclose that the client may be liable for costs.
[8] An advertisement 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 comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison 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.
[9] Finally, Rule 7.1(c) proscribes unsolicited communications sent by restricted means of delivery. It is misleading and an invasion of the recipient’s privacy for a lawyer to send advertising information to a prospective client by registered mail or other forms of restricted delivery. Such modes falsely imply a degree of exigence or importance that is unjustified under the circumstances.
ANNOTATION Annotator’s note. Rule 7.1 is similar to Rule 7.1 as it existed prior to the 2007 repeal and readoption of the Colorado rules of professional conduct. Relevant cases construing that provision have been included in the annotations to this rule. The relevant portions of the Colorado Consumer Protection Act are not inconsistent with the prohibition on misleading communications in C.R.P.C. 7.1. Attorney conduct that constitutes deceptive or unfair trade practices is not in compliance with the rules of professional conduct and is not exempted from CCPA liability. Crowe v. Tull, 126 P.3d 196 (Colo. 2006). Lawyer advertisement containing false, misleading, deceptive, or unfair statements in violation of the rule warrants public, rather than private, censure. Respondent terminated referral service being advertised after the initial request for investigation was filed and cooperated in disciplinary proceedings but had received a past letter of admonition and had substantial experience in the practice of law. Respondent’s conduct involved dishonesty and misrepresentation and, in conjunction with prior discipline, foreclosed a private sanction. People v. Carpenter, 893 P.2d 777 (Colo. 1995). Cases Decided Under Former DR 2-101. Law reviews. For comment, “A Consumers’ Rights Interpretation of the First Amendment Ends Bans on Legal Advertising”, see 55 Den. L.J. 103 (1978). For article, “Lawyer Advertising”, see 15 Colo. Law. 1819 (1986). For article, “Marketing Your Practice”, see 16 Colo. Law. 259 (1987). For article, “Reading Beyond the Labels: Effective Regulation of Lawyers’ Targeted Direct Mail Advertising”, see 58 U. Colo. L. Rev. 255 (1987). For formal opinion of the Colorado Bar Association Ethics Committee on Lawyer Advertising, Solicitation and Publicity, see 19 Colo. Law. 25 (1990). For comment, “After Shapero v. Kentucky Bar Association: Much Remains Unresolved About the Allowable Limits of Restrictions on Attorney Advertising”, see 61 U. Colo. L. Rev. 115 (1990). For formal opinion of the Colorado Bar Association Ethics Committee on Collaboration with Non-Lawyers in the Preparation and Marketing of Estate Planning Documents, see 19 Colo. Law. 1793 (1990). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify suspension. People v. Smith, 830 P.2d 1003 (Colo. 1992). Conduct violating this rule sufficient to justify suspension. People v. Roehl, 655 P.2d 1381 (Colo. 1983). Cases Decided Under Former DR 2-102. Law reviews. For formal opinion of the Colorado Bar Association Ethics Committee on Lawyer Advertising, Solicitation and Publicity, see 19 Colo. Law. 25 (1990). For formal opinion of the Colorado Bar Association Ethics Committee on Listing Support Personnel Names on Letterhead and Business Cards, see 19 Colo. Law. 629 (1990). Conduct violating this rule in conjunction with other disciplinary rules is sufficient to justify suspension. People v. Smith, 830 P.2d 1003 (Colo. 1992).