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THE ATTORNEY-CLIENT RELATIONSHIP

Modern 1st A. protection for “Commercial Speech” 1976: prohibition against pharmacies advertising prices of prescription drugs ( Virginia Pharmacy ) 1977: prohibition against lawyer advertising ( Bates v. State Bar of Arizona)

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THE ATTORNEY-CLIENT RELATIONSHIP

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  1. Modern 1st A. protection for “Commercial Speech” • 1976: prohibition against pharmacies advertising prices of prescription drugs (Virginia Pharmacy) • 1977: prohibition against lawyer advertising (Bates v. State Bar of Arizona) • Purpose of protection: public interest in receiving useful information about goods and services A. ATTRACTING CLIENTS THE ATTORNEY-CLIENT RELATIONSHIP

  2. Commercial speech c’t’d • 1980: Central Hudson Gas & Electric sets limits on protection for commercial speech generally • can forbid promoting unlawful activity • can forbid false/misleading statements • 3-part test for other restrictions: • substantial gov’tal interest • restriction directly and materially advances it • restriction is “narrowly drawn”

  3. Problem p. 114 • Telephone # 1-800-LAWSUIT – improper advertising? • MRPC 7.1 • Missouri MRPC 7.1 • Firm name “The Suit Shop”? • MRPC 7.1, 7.5 • n. 5 p. 120 • What about referring to one’s selection to “Super Lawyers” or “Best Lawyers of America”?

  4. Problem p. 114 c’t’d • writing directly to persons reported in the newspaper to have been injured in accidents – improper solicitation? • Went For It, p. 114, and n. 1 p. 118 • MRPC 7.3 • cf. Missouri MRPC 7.3 • writing directly to people reported to be arrested – is this different from accidents? • n. 2 p. 119

  5. Solicitation c’t’d • Parameters of constitutional protection for solicitation • Ohralik v. Ohio State Bar Ass’n (1978) – classic “ambulance-chasing” case, not protected • In re Primus (1978) – a pro bono solicitation case, protected under the particular circumstances • Hence the relationship between MRPC 7.3(a) (pecuniary gain) and 7.3(b) (coercion, duress or harassment)

  6. B. NATURE, ESTABLISHMENT, SCOPE (1) Problem p. 121 • Nature of the relationship: “fiduciary” – what does that mean? • What are your obligations, if any, toward Smith, after the initial consult and he can’t find another lawyer? • Have you already “taken his case”? Togstad • If not, must you do so now? N. 6 &7 p. 128 • any difference, if the initial consult took place through e-mail from the webpage?

  7. Problem p. 121 c’t’d • If Smith files a civil suit pro se, and the judge asks you to represent him, what are your obligations? MRPC 6.1, 6.2 • can you refuse because you won’t get a fee? • can you refuse because you don’t like him? • if the judge orders you to do so, are you stuck? • N. 9 p. 129 – constitutional issues?

  8. Problem p. 121 c’t’d • what about question (d) p. 122 – can you refuse to do more than write a letter to the landlord? • MRPC 1.2(c) and n. 11 p. 132 • Suppose Smith is charged with assault in municipal court, can’t pay a lawyer but isn’t eligible for a public defender – if the judge asks you to step in, are you stuck? • N. 8 p. 129

  9. B(2) Identifying the Client • Problem p. 133 • Who are the Young & Winslow firm’s “clients”? • Do they have professional obligations to anyone else? • Greate Bay Hotel, p. 134 • MRPC 1.13 – does this help at all for our problem? • What more do you need to know?

  10. N. 3 p. 137: insurance defense – who is the client? • the insured? • the insurer who selects and pays the lawyer? • if both, is there a problem?

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