Applying the Two-Step Analysis

A lawyer's marketing conduct has to clear two gates, and the order follows the structure of Rule 7.2. Rule 7.2(a) opens the first gate: a lawyer may communicate information regarding the lawyer's services through any media.¹ Rule 7.2(b) guards the second. It forbids giving anything of value to a person for recommending the lawyer's services, then lists exceptions, the broadest of which lets the lawyer pay the reasonable costs of advertisements or communications permitted by the Rule.² The gates are independent. A lawyer can pass the first and fail the second, as when a lawful radio spot is paired with paid referrals. A lawyer can also fail the first without paying anyone, as when a free website carries a false claim. Passing one gate never cures failing the other, so an answer that finds the medium open has finished only half of any stem that mentions money.

The first gate begins with permission because of how the law developed. Before the Supreme Court decided Bates, the only acceptable means of marketing legal services beyond bar association referral programs was word of mouth from satisfied clients, admiring colleagues, or the lawyer's civic and social contacts.³ Bates then held that commercial speech by lawyers is entitled to limited but meaningful First Amendment protection, and it rejected the argument that lawyer advertising inevitably will be misleading.⁴ The inquiry at the first gate therefore asks whether some specific limit applies to a channel that is otherwise open.

Exam Analysis Steps

Because the gates ask different questions, take them in order and test every communication and every payment separately. The steps are these:

Identify the channel and the kind of contact. Confirm that the communication is mass-market advertising open under Rule 7.2(a), and not live, in-person, telephone, or real-time electronic contact aimed at getting a client, which Rule 7.3 governs.
Read the message for anything false or misleading under Rule 7.1. That standard applies to all regulation of attorney advertising and solicitation, and it produces real disputes where a communication falls in the gray zone between truth and falsity.⁵
List every payment, gift, or promise of value in the facts. For each, name the payee and say what the lawyer receives in return.
Ask whether the payment buys placement or production of the lawyer's own message at a reasonable price, which Rule 7.2(b) permits.
If it does not, test the payment against the other listed exceptions, each of which carries its own condition, taught in the sections above.
Conclude that a payment fitting no exception is compensation for a recommendation, and that the lawyer who makes it is subject to discipline.

Steps three and four decide most stems, because the payee's role and the thing purchased separate permitted payments from prohibited ones. A newspaper, broadcaster, or directory publisher takes the lawyer's money to carry a message the lawyer composed. A designer is paid for labor that produces the message. In both cases the audience still hears the lawyer. A paid recommender is different: the recommender speaks in an apparently independent voice while holding a financial stake the listener cannot see. The sorting question is therefore who receives the money and what it buys, and the label on the invoice settles nothing.

A stem that describes an ordinary campaign usually tests whether you can find the one payment that does not belong.

Add one payment to that campaign and the result changes. Suppose a personal-injury lawyer also gives a chiropractor a pair of basketball tickets for every patient the chiropractor refers. The radio spot still clears the first gate. The tickets fail the second, because they are something of value, they are given for a recommendation, and the chiropractor carries none of the lawyer's message, so no advertising-cost exception applies. The payee's identity and the thing the lawyer bought from that payee moved the answer.

Payments connected with the press invite a shortcut that fails in both directions. One version treats them all as permitted because advertising is permitted. The other treats them all as forbidden because publicity brings in clients. The payee's role defeats both.

The first lawyer paid for labor that carries information to a reporter who remains free to write what the reporter chooses, or nothing at all. The resulting story reflects the reporter's own judgment. The second lawyer paid for the story itself, which looks like an impartial news report but is a paid infomercial. That is a deceptive practice under Rule 7.1, so the message fails the first gate even though the lawyer paid openly. The advertising-cost exception cannot rescue it, because the exception covers only communications the Rule permits.⁶

A longer stem often packs several events together, and the checklist applies to each event on its own.

The newspaper announcement clears both gates. The medium is open under Rule 7.2(a), the message is accurate, and the payment is the reasonable cost of a permitted communication.⁷ The telephone call never reaches Rule 7.2(a), because live telephone contact is not mass-market advertising and falls under the far stricter solicitation rule, Rule 7.3. The gift cards involve no communication by the lawyer, so the first gate has nothing to test. They fail the second gate because they are value paid for each recommendation and fit no listed exception. The one lawful event in the stem protects neither of the other two.

Students err in two directions. Some treat any payment near client acquisition as forbidden, which overlooks that the Rule expressly allows paying the reasonable costs of advertising and, as the earlier sections showed, several other listed payments. Others treat an open medium as approval of everything the lawyer does around it. That overlooks three limits: a message must still avoid falsity under Rule 7.1, live contact belongs to Rule 7.3, and every payment must be sorted by payee and purpose.

Applying the Two-Step Analysis

Endnotes8