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LITIGATION CULTURE IN THE UNITED STATES OF AMERICA AND IN EUROPE

PART ONE WITH FOCUS ON ATTORNEY ADVERTISEMENT




“A lean compromise is better than a fat lawsuit.”[1]

[1] Quote by George Herbert



I. ATTORNEY ADVERTISING RULES IN THE UNITED STATES OF AMERICA AND IN EUROPE

It is a fundamental human right to have access to the judicial system. However, the access itself is a negative right, meaning that entitlement exists also not to use the judicial system and there is no regulation, which in general would prescribe an obligation to initiate or file a civil law suit, whereas this would highly impose and limit the parties’ contractual freedom.

Therefore, the framework as to how often or not parties use the judicial system will be determined also by cultural occurrences. This covers how well the participants of society are educated about their lawful rights and how acceptable it is to initiate cases based on minor or less minor incidents, which potentially are more favorable to be resolved outside of court procedure. Other highly relevant factors such as enumerated below, consisting of the form of how attorneys are allowed to advertise their services, thereby bringing society closer to the actual legal procedure itself, as well as further motivating and demotivating constituents will determine the willingness of parties of a certain society to litigate their unresolved civil disputes in front of court.

(i) Attorney Advertising Rules in the United States of America[1]

· Communications

Based on the American Bar Association’s Rule 7.1 of the Model Rules of Professional Conduct, in communications concerning a lawyer’s services, a lawyer is prohibited from any false or misleading communication or making any material misrepresentation of fact or law, or omission of a fact necessary to make a statement when considered as a whole not materially misleading. This obligation does not only cover declarations, which are false per se, but also truthful statements, which carry a substantial likelihood of being misleading to the average reasonable person who would draw a specific conclusion about the lawyer or the lawyer’s services at hand, if no actually pertinent factual foundation for such declaration exists. Thereby, the attorneys practicing in the United States of America must be very cautious as in all forms of their professional (and due to ethical and moral considerations, as well as personal) communications with special regard to their achievements or comparison of other law firms’ services or fees, whereas any unjustified expectation arising in a future potential client will qualify as misleading, if it may reasonably be understood as such. Thus, attorney communication should be carefully phrased with the appropriate disclaimer or qualifying language.

· Advertisement

In accordance with the American Bar Association’s Rule 7.2 of the Model Rules of Professional Conduct, Attorney Advertising is allowed through written, recorded or electronic communication, including public media. However, a very strict prohibition exists against a lawyer giving anything of value to a person for recommending the lawyer’s services, except for (1) reasonable costs of permitted advertisements and / or communications; (2) usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service approved by an appropriate regulatory authority; (3) the purchase price of buying a law firm with an ongoing law practice; (4) referral of clients to another lawyer or a non-lawyer professional, if such reciprocal referral agreement is non-exclusive and the client, who is being referred from one lawyer to another (or to a non-lawyer professional) is aware of the referral agreement; and finally (5) any communication must include the name and address of at least one lawyer or the law firm itself responsible for the content of the advertisement.

Contrary to the above, based on ethical considerations of the legal profession, it is against the traditional approach for attorneys to seek clientele. In the modern era, such strict rules have loosened with specified limitations. The so-called “ambulance chasing” is a highly prohibited area and a good example on how attorneys may not hand out their business cards and solicit clients for personal injury cases if they happen to pass by an automobile accident. However, on the other end of this spectrum is the need to make society aware by transparently organized information campaigns, which go beyond a law firm’s reputation and feed the ever-expanding public interest towards legal services.

Although the regulation warns attorneys about “undignified” advertisement in general, that is sending out misleading information to the public, the United States of America takes a stance, whereas despite the fact that law firms do not carry out traditional business activities in the sense of other corporations and companies and therefore, their competition among each other need to be regulated in a different manner, yet prohibiting television or internet advertisement for law firms would hinder and impede the flow of information.

Another interesting aspect to consider is the regulation of professional referrals. Such referral services may only recommend lawyers, who in the protection of the public are licensed to practice, carry a reasonably adequate malpractice insurance and are independent, that is do not work for the referral service itself. A communication is regarded as a recommendation, if in fact it endorses or vouches for the lawyer’s professional qualities, such as credentials, abilities, competence or character in connection with client satisfaction.

Thus, under the aforementioned rules, a lawyer is permitted to pay for advertising and communications such as the costs for non-profit or qualified referral services, including, but not limited to online and printed directory listings, newspaper and television ads, radio airtime and domain name registration fees, as well as marketing and client development services, among which lead generator services are rather popular in the United States of America.

· Solicitation of Clients

The American Bar Association’s Rule 7.3 of the Model Rules of Professional Conduct prescribes that a lawyer is prohibited to solicit professional employment when such solicitation’s main motive is pecuniary gain, unless the person contacted is also a lawyer or is a family member or otherwise in a close personal or previous professional relationship with the lawyer.

The solicitation should not occur neither in written, nor by means of recorded electronic communication or by in-person, telephone or real-time electronic contact. Even in cases of the permitted solicitation, it is prohibited to proceed with soliciting clients when the target has formerly explicitly expressed the desire not to be targeted or if such solicitation involves coercion, duress or harassment.

The lawyer is entitled to participate with a prepaid or group legal service plan by which people who are not known to be in need of legal services are contacted and solicited, however every form of such communication must bear the clear indication of “Advertising Material”.

Solicitation is always the targeting of a specific person for legal services, therefore a billboard or television ad to the general public will not constitute solicitation, bur rather advertising.

· Summary

Although a very broad spectrum of advertisement is allowed for lawyers based on the aforementioned Model Rules prevailing in the United States of America, yet the general public is shielded from attorneys communicating in real-time and personally in a direct manner to people who are known to be in need of legal services, whereas such direct, upfront and personal encounter with a trained attorney might be overwhelming to the point that it may influence and impair the judgment of the average reasonable person in regards to actually pursuing a legal action or not. Thus, a rather lenient balance is found between the need for attorneys to have an opportunity to promote their legal services and the need of the people to freely turn to the attorney of their choice.

(ii) Attorney Advertising Rules in Europe[2]

· Advertisement

Based on the currently effective provisions of the Hungarian Bar Association’s Ethical Codex on this matter, an attorney is allowed to promote and advertise their services, however any information provided must be precise, must follow the basic values of the legal profession and must not be misleading in any way, shape or form.

No form of communication in connection with the legal profession may breach any laws regulating commercials, electronic communication or the prohibition of unfair market practices. A heightened degree of caution is required with due regard to the client-attorney privileged and confidential information as well as for maintaining the dignity of the legal profession. Further, the lawyer’s advertisement must be in coherence with the lawyer’s role in participating in the adjudication procedures and in a legal state within a democratic society.

The advertisement of lawyer’s may not (1) decrease any public faith entrusted in the legal profession or the judicial system; (2) be aggressive or lead to the harassment of potential clients; (3) make any unpermitted reference to the comparison with other attorneys’ qualification, success rate or fee structure; (4) refer to any efficiency indicators, the number of clients or their significance; (5) exploit the potential client’s vulnerable and / or exigent situation which may lead to the impairment of the judgment in regards to choosing an attorney.

A practitioner of law may not make the impression by any means of communication, which may seem as though any influence can be made on the judicial system or that a case could be handled more efficiently or in a prompter manner simply due to the fact that the lawyer at hand is proceeding. Thereby, also when giving the general public information on an ongoing case such as to the media or press, such communication must occur in an all-times objective manner within the expected prestige as is due to the legal profession.

· The Lawyer’s Website

The lawyer is obligated to maintain the dignity of the legal profession within the means of the content on the lawyer’s website and also in regard to online profiles established on any social media platform.

The applicable rules provide for the possibility of cooperating lawyers to maintain mutual websites, however no guestbook is allowed in any form, nor is an indicator of the number of website visitors, which is made visible while accessing the website content. Further, it is prohibited to collect e-mail addresses throughout the website. Hyperlinks to other website may only be represented on the lawyer’s website if professionally reasoned (such as a reference to a regulation or publication) or if the cooperating lawyers maintain separate websites as well, under the condition that all websites must adhere to the regulations applicable to the advertisement of lawyers in general.

The opening page of the website must always contain the unified informational text as prescribed by the given territorial bar association along with the direct website reference of the bar association in a well visible and legible manner.

Due to confidentiality reasons, no client or case name may be indicated on the lawyer’s website, however it is permitted to generally list the case types as pertinent to the legal services offered by the lawyer. The lawyer is at all times responsible for the content of their website. Any breach of rules pertaining to the website content may lead to ethical sanctions as laid out by the regulations of the given territorial bar association.

(iii) Comparison of Attorney Advertisement in the United States of America and in Europe

When it comes to lawyer’s advertisement, only a decade ago in Hungary there were still very strict regulations in place when it comes to this area. Strict in the sense that certain kinds and types of advertisements, such as so-called “online banner ads” were deemed as unethical and thereby were prohibited. The best chance an attorney would have for advertisement was to participate in as many conferences and business networking events as possible in order to pass out business cards to future potential clients and / or to write published articles and essays.

Meanwhile in the United States of America, there were massive television ad campaigns and huge billboard advertisements everywhere with lawyers indicating their total sum of awards as litigated from their lawsuits. The contrast was rather vast although the common nominator was the increasing numbers of lawyers on both continents.

Thus, the modern era of social media and quickly developing technology certainly contributed to minimizing the difference between the two legal systems in the most practical and business related sense as well, that is advertisement, which lays down the basis for permitted competition among lawyers. Therefore, although the traditions are still followed, whereas in the present time one will not encounter huge billboards of lawyers in Hungary and it is rather uncommon in Europe in general as opposed to the United States of America, the European social media and further websites are used in accordance with the applicable regulations of the given bar associations by lawyers to promote their legal services.

In conclusion, one might say there is a cultural and traditional difference still present in the lawyer advertisement field as well, however a rapprochement trend is traceable in this sense and the common traits are the content regulations by the local bar associations and the obligation to maintain the dignity of the legal profession.

[1] “Model Rules of Professional Conduct”, American Bar Association (2016), pages 147-155. [2] The Hungarian Bar Association’s Regulation No. 6 of year 2018 (III.26.) on The Ethical Rules and Expectations of the Legal Profession, Points 9-10. *ALL RIGHTS RESERVED. FOR ANY KIND OF USAGE OF THIS ARTICLE - CONTACT: nora.szabo@noraszabolaw.com

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