The Rule 7.1 Prohibition

False or Misleading Communications

The Rule 7.1 Prohibition

Model Rule 7.1 opens with one sentence: "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services."¹ A second sentence defines the defect. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact needed to keep the statement, considered as a whole, from being materially misleading.² Later sections take that definition apart limb by limb. This section asks about the rule's reach: what counts as a communication, what it must be about, and what kind of defect the rule looks for. The answers matter because Rule 7.1 is the overarching standard for all regulation of lawyer advertising and solicitation, and every specific advertising problem is read through it.³

The word communication carries no qualifier. The rule names no medium and no audience, so nothing in it confines the prohibition to paid advertisements in newspapers or on television.⁴ The Model Rules permit a lawyer to publicize services through written, mailed, recorded, electronic, broadcast, and internet communications, and to indicate professional status through firm names, letterhead, and other professional designations.⁵ Each of those channels can carry a false statement, and the same content standard follows the lawyer into all of them. A letterhead that lists a lawyer as "Of Counsel" when no such relationship exists misstates a fact about the lawyer's professional status, just as a billboard making the same claim would.

The rule's subject is equally broad: the communication must be about the lawyer or the lawyer's services. That phrase takes in nearly everything a lawyer says to attract clients, including credentials, experience, and capabilities, and the cases show how much of that territory Rule 7.1 polices. The hard cases fall in the gray zone between truth and falsity.⁶ In re Zang, a television advertisement showed a simulated jury trial, but the advertiser was a recent law school graduate who had never tried a case to a jury, so the commercial conveyed trial experience the lawyer lacked.⁷ In In re Kaszynski, an advertisement stating "we speak Spanish" was misleading because only a nonlawyer assistant spoke Spanish.⁸ Someone in the Kaszynski office did speak the language, yet read as a whole the message suggested a capability the lawyers did not have. Neither advertiser told a flat lie. Courts reached both advertisements because Rule 7.1 asks what a communication conveys as a whole.

Truthful statements stand on the other side of the line. In Bates v. State Bar of Arizona, the Court said that "[a]dvertising that is false, deceptive, or misleading of course is subject to restraint."⁹ The same Court observed that the objections to lawyer advertising carry little force against basic factual content such as the lawyer's name, address, telephone number, and office hours.¹⁰ A listing that states those facts accurately misstates nothing and omits nothing that would change its meaning, so Rule 7.1 has nothing to catch. The Court also left open claims about the quality of legal services, which probably cannot be precisely measured or verified and, in some circumstances, might well be deceptive or misleading.¹¹ The same subject matter, a lawyer's own background and abilities, is therefore regulated when the message deceives and left alone when it informs accurately.

Rule 7.1 is a content rule, and it asks one question: does the communication deceive? The dignity or taste of the lawyer's marketing does not enter the analysis. Regulation of advertising is now narrowly focused on false or misleading communications, while direct solicitation of clients remains forbidden, with limited exceptions.¹² The limits on solicitation live in other provisions, and Rule 7.1 does not govern them. Bates itself set aside in-person solicitation as a separate problem, one that might pose dangers of overreaching and misrepresentation not found in newspaper announcement advertising.¹³ The focus on deception also protects the rule constitutionally. Protecting the public from deceptive advertising is a substantial interest under Central Hudson, but restrictions aimed at tacky or undignified advertising, or drawn too broadly, are likely to be challenged under the First Amendment.¹⁴

The billboard may offend a colleague's taste, yet every factual statement in it is true, so Rule 7.1 gives a disciplinary authority no ground to act. The cream-stock announcement looks respectable and still violates the rule, because its one factual claim about experience is false. Whether any other rule reaches the billboard's manner is a separate question that Rule 7.1 does not answer.

Two features of commercial speech explain why the rule can aim at deception without chilling honest advertising. An advertiser knows his product and has a commercial interest in spreading the word, and commercial speech is calculated rather than spontaneous, so a demand for truthfulness is unlikely to discourage protected speech.¹⁵ A lawyer who reports an accurate background pays almost nothing for compliance. The public and private benefits of commercial speech also derive from confidence in its accuracy and reliability, so a market in which lawyers' claims cannot be trusted would defeat the purpose of allowing the claims at all.¹⁶ The next section turns to the constitutional history behind that settlement, which protects truthful advertising and punishes the deceptive kind.