Attorney Advertising Rules for the State of Delaware

Delaware Attorney Advertising Rules: Comprehensive Overview

Attorneys practicing in Delaware must adhere to specific advertising regulations outlined in the Delaware Lawyers’ Rules of Professional Conduct (DLRPC), particularly Rules 7.1 through 7.5. These rules ensure that legal advertising is truthful, non-misleading, and upholds the integrity of the legal profession. Below is a detailed overview of the key provisions governing attorney advertising in Delaware.

Rule 7.1: Communications Concerning a Lawyer’s Services

• Prohibition of False or Misleading Communications:
  • Lawyers must not make false or misleading communications about their services.
  • A communication is considered false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement, as a whole, not materially misleading.
• Avoiding Unverifiable Claims:
  • Attorneys should not make claims that cannot be substantiated or verified.
  • Comparisons with other lawyers’ services are prohibited unless they can be factually substantiated.

Rule 7.2: Advertising

• Permissible Advertising Methods:
  • Lawyers may advertise their services through written, recorded, or electronic communication, including public media.
  • All advertisements must comply with Rule 7.1.
• Payment for Recommendations:
  • Lawyers shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may:
    • Pay the reasonable costs of advertisements or communications permitted by these rules.
    • Pay the usual charges of a legal service plan or a not-for-profit lawyer referral service.
• Mandatory Disclosures:
  • Any advertisement by an attorney or law firm shall include the name and office address of at least one lawyer or law firm responsible for its content.
• Retention of Advertising Records:
  • A copy or recording of an advertisement or written communication shall be kept for two years after its dissemination, along with a record of when and where it was used.

Rule 7.3: Solicitation of Clients

• Solicitation Restrictions:
  • A lawyer shall not solicit professional employment from a prospective client by in-person, live telephone, or real-time electronic contact when a significant motive is the lawyer’s pecuniary gain, unless the person contacted is:
    • A lawyer.
    • Has a family, close personal, or prior professional relationship with the soliciting lawyer.
• Prohibited Solicitations:
  • Solicitation is prohibited if:
    • The prospective client has made known a desire not to be solicited.
    • The solicitation involves coercion, duress, or harassment.
• Required Disclosures:
  • Written, recorded, or electronic solicitations must include the words “Advertising Material” on the outside envelope and at the beginning and end of any recorded or electronic communication, unless the recipient is a lawyer or has a prior relationship with the lawyer.

Rule 7.4: Communication of Fields of Practice and Specialization

• Stating Practice Areas:
  • Lawyers may communicate the areas of law in which they practice.
• Claims of Specialization:
  • Lawyers shall not state or imply they are certified as a specialist in a particular field of law, unless:
    • They have been certified by an organization approved by an appropriate authority or accredited by the American Bar Association.
    • The name of the certifying organization is clearly identified in the communication.
• Mandatory Disclaimer:
  • Communications indicating specialization must include the disclaimer: “The Supreme Court of Delaware does not certify specialists in the practice of law.”

Rule 7.5: Firm Names and Letterheads

• Use of Firm Names:
  • Firm names, letterheads, and other professional designations must not be misleading.
• Trade Names:
  • Use of trade names is permissible if they do not imply a connection with a government agency or with a public or charitable legal services organization and are not otherwise in violation of Rule 7.1.
• Names of Deceased or Retired Partners:
  • The name of a deceased or retired partner may be used in a firm name if the use is consistent with local custom and not misleading.
• Public Office Restrictions:
  • Lawyers who hold public office cannot be included in a firm name or in communications during a substantial period in which they are not actively practicing with the firm.
• Jurisdictional Limitations:
  • If a firm operates in multiple jurisdictions, advertisements and letterheads must indicate any limitations for lawyers not licensed to practice in a particular jurisdiction.

Record-Keeping Requirements

• Retention of Advertising Records:
  • Attorneys must retain a copy of all advertisements for a minimum of two years after dissemination.
  • This includes maintaining a record of when and where the advertisement was used.
• Website Record-Keeping:
  • Lawyers must capture and retain backups of their websites, including all new or revised content, and retain this information for two years to ensure compliance with advertising rules.

Digital Advertising and Social Media Compliance

Transparency on Websites and Social Media

• Applicability of Rules:
  • All digital communications, including websites, blogs, and social media platforms, must comply with Rules 7.1 through 7.5 of the Delaware Lawyers’ Rules of Professional Conduct.
• Use of Testimonials and Reviews:
  • Testimonials must not create unjustified expectations or imply guaranteed outcomes.
  • Disclaimers must accompany any testimonial referencing specific case results, clarifying that outcomes depend on the unique circumstances of each case.

Video and Audio Advertising

• Dramatizations and Actors:
  • Advertisements using actors or dramatizations must include clear disclaimers, such as, “This is a dramatization. Not an actual client or case.”

Email and Online Solicitations

• Required Disclosures:
  • Email solicitations must prominently display “Advertising Material” in the subject line and at the beginning of the email body.

Enforcement and Compliance

Oversight by the Delaware Supreme Court Office of Disciplinary Counsel

• Advertising compliance is overseen by the Delaware Supreme Court Office of Disciplinary Counsel, which investigates and enforces rules regarding attorney advertising.

Consequences of Non-Compliance

• Attorneys who violate Delaware’s advertising rules may face disciplinary actions, including:
  • Reprimands for minor violations.
  • Suspension or disbarment for severe or repeated violations.

Advisory Opinions

• Attorneys unsure of the compliance of their advertising practices can seek advisory opinions from the Delaware State Bar Association Ethics Committee. This proactive measure ensures adherence to ethical standards.

Additional Advertising Considerations

Contingency Fee Advertising

• Required Disclosures:
  • Advertisements referencing contingency fees must clarify that clients may still be responsible for court costs and expenses, even if the case is unsuccessful.

Avoiding Misleading Statements

• Accuracy in Advertising:
  • Advertisements must accurately represent the lawyer’s qualifications, experience, and areas of practice. Misleading or exaggerated claims are strictly prohibited.

Referral Practices

• Disclosure of Referrals:
  • If attorneys refer a substantial number of cases to other firms, this practice must be disclosed in advertisements, along with the nature of the referring attorney’s involvement in the case.

Conclusion

Delaware’s attorney advertising rules, outlined in Rules 7.1 through 7.5 of the Delaware Lawyers’ Rules of Professional Conduct, aim to maintain transparency, truthfulness, and professionalism in legal marketing. These rules apply to all forms of communication, including print, broadcast, and digital platforms.

By adhering to these regulations, attorneys can effectively promote their services while upholding ethical standards and building trust with potential clients. For additional guidance or clarification, attorneys are encouraged to consult the Delaware State Bar Association Ethics Committee or seek assistance from the Office of Disciplinary Counsel.