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MRPC 7.3 Direct Contact withProspective Clients
Q. 1 p. 195
May a lawyer without request by her
former clients friends and family
approach them to solicit new
business!
"Ch. 3 part 1 solicitation andadvertising
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". 3.1 Is the Attorney subject to discipline if
she calls Testatrix and advises her of the new
IRS ruling and the need to revise the will?
(A) Yes, if Attorney has any reason tobelieve that Testatrix has another lawyer.
(B) Yes, because Attorney would besoliciting legal business from a personwho is not a current client.
() !o, provided Attorney does not
thereafter prepare a new will forTestatrix.
(") !o, because Testatrix is a former
client of Attorney.Ch. 3 part 1 solicitation andadvertising 3
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MRPC 7.3 Direct Contact withProspective Clients
#n $hrali% the court says there is acompelling state interest inpreventing fraud overreaching etc.
&herefore the state may bar directin'person contact without proof ofharm.
(ome states bar unsolicited contactwithin 3) days of an accident. *oesthat go too far!
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Q. 3-2, p. 202 – Primus non-proite!ception May a lawyer actively solicit clients
to challenge a state law requiringsterili,ation of pregnant mothers as
a condition of receipt of Medicaid!
- /es
0 ' o
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Q. 3-2, p. 202 – Primus non-proite!ception #s the 2ehnquist dissent correct that
ideological passion may lead toabuse ust as does material self
interest! (ome non'pro4ts may be awarded
counsel fees for successful civil rights
claims. #s rimus court correct that such a
prospect is di6erent from soliciting
for a personal inury case as in$hrali%!7
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Commerciali,ation of the
profession!
"#vertisin$
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%he limits an# purposes o control oattorne& a#vertisin$
Why do we generally bar truthful
claims of specialization?
Does certication solve the
problem or create new ones?
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9
"#vertisin$
Champerty and the :uild meets (C$&;( 1985 ' :oldfarb v.
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1)
"#vertisin$
#$%& ' entral udson as * +lec.orp. v. ublic -erv.ommn of !ewYor/ ++8 ;.(. 558 2estrictions
limiting commercial speech =1> thespeech is protected by the ?irst-mendment@ ="> there is a
substantial state interest to beachieved by the restriction@ =3> therestriction materially advances the
state interest@ and =+> the restrictionCh. 3 part 1 solicitation andadvertising
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11
"#vertisin$
195 ' Aauderer v. $hio *isciplinaryComm. +81 ;.(. 7"
&argeted print advertising solicitationpermissible =*al%on (hield cases>
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1"
"#vertisin$
19 (hapero v. Bentuc%y +7 ;.(.+77
&argeted direct mail solicitation of
mortgage foreclosure defendants isprotected commercial speech under?irst -mendment
199+ #bane, v. ?lorida *ept. $f 0us. rofDl 2egulation 51" ;( 137 (tate may ban only false deceptive
or misleading commercial speechCh. 3 part 1 solicitation andadvertising
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Soliciting #usiness, sharing fees an!
a!vertising
2eferral fees 2unners
ercentage arrangements with non'attorney sta6 2eferral arrangements with non'
lawyers 0ona ?ide -dvertising
13Ch. 3 part 1 solicitation andadvertising
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Q. 3-3 p. 2'( )overnor announcesreturn to practice to law&ers, past
clients, rien#s (A) Yes, because the mailing included persons who had not been his clients.
(B) Yes, because his service as governor
is unrelated to his ability as a lawyer.
(C) No, because the information in the
announcement was true.
()No, because the announcement does
not display the words !Advertising
"aterial.#Ch. 3 part 1 solicitation andadvertising 1+
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*an$ + hitmer p. 2'
-dvertising to the general public Ehat are the bounds!
Fow did Aang and Ehitmer run afoulof the limits!
Eas suspension warranted!
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Q. 3-(, p. 2' $s the attorney sub%ect todiscipline&
(A) Yes, because the commercial created anun%ustified e'pectation about the results that
could be achieved in court.
(B) Yes, because the commercial implied that
the attorney had successfully argued a case
to a %ury.
(C) No, because commercial speech is
protected under the irst Amendment.
() No, because the commercial contained an
e'press disclaimer about the results a client
could e'pect. Ch. 3 part 1 solicitation andadvertising 17
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Q. 3-, p. 22 Call – ees mi$ht e lowerthan &ou thin/.
Is the advertisement proper? (A) Yes if the name and office address of
the lawyer or law firm is included.
(B) No, unless Attorneys fees are lowerthan those generally charged in the area
where she practices.
(C) No, because she used a professionalactor for the television advertisement.
() No, if she ma*es a charge for the
initial consultation.Ch. 3 part 1 solicitation andadvertising 18
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Q. 3- p. 22 Client en#orsement - 1'0 Mrecover&
$s the attorney sub%ect to discipline & (A) Yes, because the advertisement is
li*ely to create an un%ustified e'pectation
about the results the attorney will be ableto achieve and is therefore misleading.
(B) Yes, because the attorneys
advertisement contains a clienttestimonial.
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Q. 3- p. 22 Client en#orsement (C) No, because the plaintiff prepared the
entire statement without any involvement
by the attorney.
() No, because the result obtained in the
plaintiffs case was reported accurately,
and the plaintiff believed that everything
she said about the attorney was true.
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Q. 3-7 p. 227 an at the count& air. sattorne& su4ect to #iscipline5
(A) +lacing copies of the flyer in the booth ofeach artist.
(B) $ncluding a retainer agreement on the
bac* of the flyer. (C) +ar*ing the van with the sign on it at
the fair entrance.
() A B. (-) All of the above.
() None of the above.Ch. 3 part 1 solicitation andadvertising ")
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Q. 3-6 p. 226 aw 8irm o "lpha, 9eta +)amma
$s Alpha sub%ect to discipline& (A) Yes, because Beta was deceased when
Alpha made the arrangement with amma.
(B) Yes, because amma is not a partner of Alpha.
(C) No, because Alpha and Beta were
partners at the time of Betas death. () No, because amma is paying a share of
the rent and office e'penses.
Ch. 3 part 1 solicitation andadvertising "1
Q 3 : ;tate restrictions on testimonials
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Q. 3-: ;tate restrictions on testimonials,attention $ettin$ techni
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Challen$es to restrictions
on attorne& a#vertisin$
"3Ch. 3 part 1 solicitation andadvertising
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evels o scrutin&
(tandard =rational basis> =ethics regs> ' balance the rights of the attorneys
against the governmentGs legitimate
interest in regulating the activity inquestion
#ntermediate =commercial speech>
(trict =political speech racegender!>
' compelling governmental interest
' narrowly tailored "+Ch. 3 part 1 solicitation andadvertising
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%he Central =u#son %est
entral udson test, "efendantsmust
(1) assert that there is a
substantial tate interest to beachieved by the restriction
(!) demonstrate that the
restriction materially advancesthe state interest
(") establish that the restriction
is narrowly drawn# "5Ch. 3 part 1 solicitation andadvertising
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0This burden is not satis1ed by merespeculation or con2ecture3 rather,4the defendant5 . . . must
demonstrate that the harms it recitesare real and that its restriction will infact alleviate them to a material
degree.0 Alexander v. ahill
"7
Central $u!son% a fact to #e roven
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apobianco v. -ummers, 677 8.6d99$ (:th ir. ;&&
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Q. 3-'0 p. 2( – s a$reement improper5 (A) Yes, because she as*ed the owner to
place ads for the firm in the restaurant. (B) Yes, because the agreement provided
something of value to the restaurant owner in
return for recommending the attorneysservices.
(C) No, because she did not pay the
restaurant owner for the referrals. ()No, because the agreement is not
e'clusive, and the clients and customers will
be informed of the e'istence and nature ofCh. 3 part 1 solicitation andadvertising "
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>? ;upreme Court "ttorne& "#vertisin$Committee @pinion 30
$an%ruptcy lawyers send direct
mail solicitations to defendants
named in home foreclosure
complaints
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>? "#vertisin$ Committee @pinion 30
HF$E CF-&I2 13 2$&IC&( /$; 1. (heri6Gs (ales are stopped.
". Mortgage foreclosure is stopped. 3. -uto repossession is stopped. +. ;tility shut o6s are stopped.
5. JevyGs attachments are stopped. 7. Creditor harassment is stopped.
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31
Man#ate# >otice
$CI &he decision to 4le ban%ruptcy is a
serious choice. $an%ruptcy is not
for everyone. #t is a drasticremedy that can a&ect yourcredit for many years and willa6ect your ability to use the
ban%ruptcy code at a future timewhen you may need it more.
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3"
Man#ate# >otice
'he maority of chapter 1" plans arenever successfully completed andthe funds paid do not cure themortgage arrears or allow redemption
of property.
;pon 4ling a ban%ruptcy you may losecontrol of your property and you may
not dismiss a ban%ruptcy proceedingwithout court approval once it isled#
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33
Man#ate# >otice
&he decision of when to 4le aban%ruptcy is also crucial anddependent on your individualcircumstances. $e sure to discussthe potential pitfalls ofban%ruptcy as well as itsadvantages with any
professional you areconsidering.
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3+
'ttorney '!vertising (ui!eline 3
)ritten Solicitation to *eresent Clients
in Bankrutcy -ttorneys who see% clients by written solicitation fromdefendants in civil actions including foreclosure actions forwhich a ban%ruptcy proceeding is a possible resolutionmustK
1> personally verify the accuracy of all statements
contained in the solicitation letter including the name andaddress of the addressee and the speci4c nature of the litigation which
must be recited in the body of the letter@ "> advise the prospective client that his or her name and
the nature of the litigation was obtained by an appropriate
inquiry under 2ule 1K3@ 3> provide the salutation to the individual to whom the
letter is being sent@
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35
'ttorney '!vertising (ui!eline 3
)ritten Solicitation to *eresent Clients in
Bankrutcy ) include information su*cient to inform
an unsophisticated individual of thepotential pitfalls and disadvantages of aban%ruptcy proceeding as follows+
'he decision to le for ban%ruptcy is aserious choice# It is a remedy that may a&ect your credit
and may a&ect your ability to use theban%ruptcy code at a future time#
$e sure to discuss the advantages anddisadvantages of ban%ruptcy with anyprofessional whom you are considering torepresent you#
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37
'ttorney '!vertising (ui!eline 3
)ritten Solicitation to *eresent Clients
in Bankrutcy 5> not attempt to indicate a specialrelationship eLpertise eLperience or%nowledge which will or may provide amore favorable result than other licensedew ersey attorneys
7> not raise unusti4ed eLpectations or uselanguage or format susceptible of undulyenticing a person because of possibleeconomic or personal consequences of a
udgment@ and 8> not raise false hope for relief
inapplicable to the individual personDscircumstancesCh. 3 part 1 solicitation andadvertising
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?u#icial An#orsement N&he inescapable conclusion is . . . that
plainti6s achieved a spectacular resultwhen the 4le was in the hands of Mr.*wyer. . . . Mr. *wyer was a 4erce if
sometimes not disinterested advocatefor his clients and through an o6ensiveand defensive motion practice andthrough other discovery methodsmolded the case to the point where itcould besuccessfully resolved.O
'''Fon. Eilliam J. Eertheimer .(.C.Ch. 3 part 1 solicitation andadvertising 38
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>? "#vertisin$ )ui#eline 3
-n attorney or law 4rm may notinclude on a website or otheradvertisement a quotation oreLcerpt from a court opinion =oral or
written> about the attorneyDs abilitiesor legal services.
-n attorney may however present
the full teLt of opinions includingthose that discuss the attorneyDslegal abilities on a website or other
advertisement.Ch. 3 part 1 solicitation andadvertising 3
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Revise# )ui#eline 3
-n attorney or law 4rm may includeon a website or other advertisementan accurate quotation or eLcerptfrom a court opinion =oral or written>about the attorneyGs abilities or legalservices.
&he following disclaimer must be
prominently displayed in proLimity tosuch quotation or eLcerptK H &hiscomment made by a udge in a
particular case is not anCh. 3 part 1 solicitation andadvertising 39
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+) +)
+-*M'T+- 'B-T
L/('L S/*0+C/SModel 2ules of rofessional
Conduct
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+1
;u$$este# Mo#el Rule 7.0 2. 8.) 'ruthful, informative advertising by
attorneys is protected commercial speechand may not be unreasonably infringed orburdened.
omment K
N#t is a matter of public interest that Pprivateeconomic decisions in the aggregate beintelligent and well informed. &o this end the freeRow of commercial information is indispensable.O.
=irginia Bd. of harmacy v. =a. iti>ens ouncil
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+" +"
*ule .1 Co22unications
Concerning a Layer4s Services
- lawyer shall not ma%e a false ormisleading communication about thelawyer or the lawyerGs services.
- communication is false or misleading if itof fact or law contains a materialmisrepresentation or omits a fact
necessary to ma%e the statementconsidered as a whole not materiallymisleading.
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+3 +3
Rule 7.2 "#vertisin$ =a> S a lawyer may advertise
servicesSP0;& =b> - lawyer shall not give anything
of value to a person forrecommending the lawyerGs servicesT
eLcept that a lawyer may =1> pay the reasonable costs of
advertisements or
communications ="> pay the usualcharges of a legal service plan or anot'for'pro4t or quali4ed lawyerreferral service. TT
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++ ++
Rule 7.2B "#vertisin$
(") pay for a law practice inaccordance with -ule 1#1.
&he problem of goodwill
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+5 +5
Rule 7.2 B "#vertisin$ –Reciprocal "$reements () refer clients to another
lawyer or a nonlawyer
professional pursuant to an
agreement/ that provides for
the other person to refer clients
or customers to the lawyer if
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+7s +7
Rule 7.2 B "#vertisin$
(i) the reciprocal referral
agreement is not e0clusive, and
(ii) the client is informed of the
e0istence and nature of the
agreement
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MRPC 7.3 Direct Contact withProspective Clients Comment P1 li%e $hrali% v. $hio
(tate 0ar argues that Nthere is apotential for abuse inherent in direct
in'person live telephone or real'timecontact by a lawyer with aprospective client %nown to need
legal services.O #s a broad bar on such contact really
necessary! ;nder whatcircumstances!
+8
Ch. 3 part 1 solicitation andadvertising
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+Ch. 17 ' Mar%eting Jegal (ervices +
*ule .3 5irect Contact ith
Prosective Clients (a) lawyer shall not by in2person,
live telephone or real2time electroniccontact solicit professional
employment from a prospective clientwhen a signicant motive for thelawyer3s doing so is the lawyer3specuniary gain
40cept if the person contacted+ (1) is a lawyer or (!) has a family, close personal, or
prior professional relationship withCh. 3 part 1 solicitation andadvertising
* l 3 5i t C t t ith
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+9 +9
*ule .3 5irect Contact ith
Prosective Clients (b) lawyer shall not solicit
professional employment from aprospective client/ if+
(1) the prospective client hasmade %nown to the lawyer adesire not to be solicited by the
lawyer5 or (!) the solicitation involves
coercion, duress or harassment#Ch. 3 part 1 solicitation andadvertising
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5) 5)
R. 7.3 Direct Contact with ProspectiveClients
=c> Ivery written recorded or electroniccommunication from a lawyer solicitingprofessional employment from aprospective client %nown to be in need oflegal services in a particular matter shallinclude the words
Hdvertising 6aterial7 on the outsideenvelope/ and
at the beginning and ending of anyrecorded or electronic communication unless the recipient =is a lawyer family
etc.> speci4ed in paragraphs =a>=1> or =a>
=">.Ch. 3 part 1 solicitation andadvertising
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51 51
*ule .6 Co22unication of iel!s of
Practice an! Seciali7ation
=a> lawyer may communicate thefact that the lawyer does or does notpractice in particular elds of law.
=b> - lawyer admitted to engage in patentpractice before the ;nited (tates atentand &rademar% $Uce may use thedesignation Hatent -ttorneyH or asubstantially similar designation.
=c> - lawyer engaged in -dmiralty practicemay use the designation H-dmiraltyHHroctor in -dmiraltyH or a substantiallysimilar designation.
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5"Ch. 17 ' Mar%eting Jegal (ervices 5"
*ule .6 Co22unication of iel!s of
Practice an! Seciali7ation
=d> - lawyer shall not state or imply that alawyer is certi4ed as a specialist in aparticular 4eld of law unlessK
=1> the lawyer has been certi4ed as aspecialist by an organi,ation that has beenapproved by an appropriate stateauthority or that has been accredited by
the -merican 0ar -ssociation@ and ="> the name of the certifying organi,ation
is clearly identi4ed in the communication.
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The #an on 2islea!ing, unsuorta#le
state2ents of fact
53Ch. 3 part 1 solicitation andadvertising
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MRPC. 7.'
- lawyer shall not ma%e false ormisleading communication about thelawyerDs services.
- communication is false ormisleading if it contains a materialmisrepresentation of fact or law
or omits a fact necessary to ma%ethe statement considered as a wholenot materially misleading.
5+5+Ch. 3 part 1 solicitation andadvertising
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"9" R. 7.' Comment 2E
- truthful statement is alsomisleading if there is a substantialli%elihood that it will lead a
reasonable person to formulate ' a speci4c conclusion about the
lawyer or the lawyerDs services
' for which there is no reasonablefactual foundation
Ch. 17 ' Mar%eting Jegal (ervices 5555Ch. 3 part 1 solicitation andadvertising
>F Part '200 Rules o
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>F Part '200 – Rules oProessional con#uct anG Client Testimonials Portrayal of a Judge Irrelevant Techniques Nicknames, Mottos, and Trade
Names
57Ch. 3 part 1 solicitation andadvertising
'le8an!er v. Cahill 9.5..: ;
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9 = -leLander CatalanoGs commercials often
contained
ingles and special e6ects including wisps of
smo%e and blue electrical currents surrounding
the 4rmGs name.
4ctional or comical scenes.
;sed the slogan Hthe heavy hitters.N
ortrayed its attorneys as giants towering overdowntown buildings depicting its attorneys
counseling space aliens concerning an insurance
dispute and representing its attorneys running as58Ch. 3 part 1 solicitation andadvertising
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%ra#e names
&as% ?orce 2eport regarding tradenames
&he Committee endorsedS
continuation of the ban on use oftrade names/
trade names are far too li%ely to
be false, deceptive andmisleading to consumers of legalservices.
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Clearl& improper
&he following if used in publiccommunications or communicationsto a prospective client are li%ely to
be false deceptive or misleadingK . . .a communication that states orimplies that the lawyer has the
ability to in8uence improperly acourt, court o*cer,governmental agency orgovernment o*cial # # # #
59Ch. 3 part 1 solicitation andadvertising
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7)Ch. 17 ' Mar%eting Jegal (ervices 7)
;uper aw&ers
-ny problem here!
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71Ch. 17 ' Mar%eting Jegal (ervices 71
aw&ers with a #ierence
Eilent, :oldman (pit,er is a name thathas become synonymous with law 4rmeLcellence and a commitment to ma%e adi6erence for the businesses andindividuals it serves.
9racticing law, teaching the law, andshaping the law is what we do.
-ll of us at Eilent, :oldman (pit,er are
dedicated to maintaining the reputationservice and results our clients have cometo eLpect and that is our :ommitment to6a%e a Di&erence.
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7"Ch. 17 ' Mar%eting Jegal (ervices 7"
" e$en# in his own min#5
(tuart Foberman amed New ersey 0estJawyers 0an%ing Jawyer of the /earO
Eoodbridge Ee are pleased toannounce that (tuart -. Fobermanshareholder of Eilent, :oldman (pit,er.-. =NEilent,O> has been named the New
ersey Best @awyers 0an%ing Jawyer of the /earO for "))9 by 0est Jawyers the oldestand most respected peer'reviewpublication in the legal profession.
Ch. 3 part 1 solicitation andadvertising
http://www.wilentz.com/Attorney_Bio.aspx?ID=888http://www.wilentz.com/Attorney_Bio.aspx?ID=888
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73Ch. 17 ' Mar%eting Jegal (ervices 73
ots o e$en#s
Eilent, :oldman (pit,er .-.-nnounces 5) Jawyers #ncluded on "))9ew ersey (uper JawyersW and 2ising(tarsW Jists
39 of our attorneys have been selected forinclusion on the "))9 !ew ersey -uper@awyers list
11 of our attorneys were selected forinclusion on the "))9 ising -tars list asdesignated by@aw * olitics maga,ine.
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7+Ch. 17 ' Mar%eting Jegal (ervices 7+
Ch. 3 part 1 solicitation and
advertising
%=; ; >@% A)" "DCA
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75Ch. 17 ' Mar%eting Jegal (ervices 75
%=; ; >@% A)" "DCA
-ny problem here!
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advertising
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77Ch. 17 ' Mar%eting Jegal (ervices 77
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advertising
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%ra#e names an# mottos &eam Jaw ' *onDt ust hire a lawyer
hire a team of lawyers &he (uper Jawyers Ee are lawyersD lawyers $ne of Ds &op 1)) &he man who couldnDt be bought &radition #nnovation #mpact racticing law teaching the law and
shaping the law is what we do
78
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advertising
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MilavetH v. Inite# ;tates
7
Ch. 3 part 1 solicitation and
advertising
'' I ; C J 2 Restrictions on #et relie
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'' I.;.C. J 2. Restrictions on #et reliea$encies
(a) - debt relief agency shall notX () advise an assisted person or
prospective assisted person to incur more
debt ' in contemplation of such person 4ling a
case under this title or ' to pay an attorney or ban%ruptcy petition
preparer fee or charge for servicesperformed as part of preparing for orrepresenting a debtor in a case under thistitle.
79
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advertising
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Milavet7 an! Central $u!son
- restriction on speech is permittedonly ifK
1> a substantial state interest
"> is materially advanced 3> by a narrowly tailored measure ow does ## ?- 9;: (a) (
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@verroa#5
Y 5"7=a>=+> is unconstitutionallyoverbroad as applied to attorneysfalling within the de4nition of debt
relief agencies because it is notnarrowly tailored nor narrowly andnecessarily limited to restrict only
that speech that the government hasan interest in restricting.
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@verroa#5
#nstead Y 5"7=a>=+> prohibitsattorneys classi4ed as debt reliefagencies from advising any assisted
person to incur any additional debt incontemplation of ban%ruptcy@ thisprohibition would include advice
constituting prudent pre'ban%ruptcyplanning that is not an attempt tocircumvent abuse or undermine theban%ruptcy laws.
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@verroa#5
(ection 5"7=a>=+> as writtenprevents attorneys from ful4llingtheir duty to clients to give them
appropriate and bene4cial advice nototherwise prohibited by the0an%ruptcy Code or other applicable
law.
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Dissent
#f an attorney advises a debtor tore4nance his home to lower mortgagepayments or to purchase a reliable car to
enable him to pay o6 his debts then adebtor following that advice would su6erno damage. &here is no reason to believethat a client could recover the remittal of
attorneyGs fees or that a court would 4nd acivil penalty HappropriateH as a remedy forlegal advice that bene4ts both the debtorand his creditors.
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" narrowin$ construction5
-ccording to the government Y5"7=a>=+> should be interpreted asmerely preventing an attorney from
advising an assisted person.. to ta%eon more debt in contemplation ofban%ruptcy when the incurrence of
such debt is done with the intent tomanipulate the ban%ruptcy systemengage in abusive conduct or ta%eunfair ad antage of the ban%ruptc