July 21 2010
IN THE SUPREME COURT OF THE STATE OF MONTANA
AF 09-0688
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JUl 2 12010
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IN RE THE RULES OF PROFESSIONAL CL F HE SU P REME COURT
0 K Q MONTANA
CONDUCT ON ADVERTISING
On November 30, 2009, the Trustees of the State Bar of Montana and the Ethics
Committee (Petitioners) filed with this Court a Petition and Memorandum in Support of
Revision of the Rules of Professional Conduct on Advertising.
The Petition alleges the proposed amendments would (1) clarify Montana disciplinary
jurisdiction over attorney advertising; (2) specifically identify types of misleading lawyer
communications; and (3) recognize that Montana does not have a procedure to "qualify" a
lawyer referral service.
On January 8, 2010, this Court ordered members of the bench and bar of Montana and
any other interested persons 90 days to file comments and/or suggestions to the Proposed
Revision to the Rules of Professional Conduct on Advertising.
We have reviewed the Petition, Memorandum and all comments and/or suggestions
received and conclude that the attached amendments to the Rules of Professional Conduct on
Advertising should be adopted. Therefore, good cause appearing,
IT IS HEREBY ORDERED that Rules 7.1 (Communications Concerning a Lawyer's
Services), 7.2 (Advertising), and 8.5 (Jurisdiction and Certification) of the Rules of
Professional Conduct on Advertising are hereby amended in accordance with the attached,
and by this reference made a part hereof. The deleted language of the attached, amended
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Rules is stricken and the underlined language is added.
IT IS FURTHER ORDERED that these amendments shall be effective immediately.
IT IS FURTHER ORDERED that the Clerk of this Court shall give notice hereof to
each District Court Judge; each Clerk of the District Court; the Executive Director of the
State Bar of Montana, with a request that the State Bar publish a reference or link to this
order on the State Bar's website and that notice of this order be published in the Montana
Lawyer; to the Montana State Law Library, with a request that it publish a reference or link
to this order on the Law Library's website.
DATED this"Tay of July, 2010.
C et Justice
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Rule 7.1 Communications Concerning a Lawyer's Services.
A lawyer shall not make a false or misleading communication about the lawyer
or the lawyer's services. A communication is false or misleading if it contains a
material misrepresentation of fact or law. 3 A misleading communication includes, but
is not limited to those that:
) omits a fact as a result of which necessary to make the statement considered
as a whole net is materially misleading
(b) is likely to create an unjustified expectation about results the lawyer can
achieve;
(c) proclaims results obtained on behalf of clients, such as the amount of a
damage award or the lawyer's record in obtaining favorable verdicts or settlements,
without stating that past results afford no guarantee of future results and that every
case is different and must be judged on its own merits;
(d) states or implies that the lawyer can achieve results by means that violate the
Rules of Professional Conduct or other law;
(e) compares the quality of a lawyer's or a law firm's services with other
lawyers' services, unless the comparison can be factually substantiated;
(f) advertises for a specific typ e of case concerning which the lawyer has neither
experience nor competence;
(g) indicates an area of practice in which the lawyer routinely refers matters to
other lawyers, without conspicuous identification of such fact;
(h) contains any paid testimonial about, or endorsement of, the lawyer without
conspicuous identification of the fact that payments have been made for the
testimonial or endorsement;
(i) contains any simulated portrayal of a lawyer, client, victim, scene, or event
without conspicuous identification of the fact that it is a simulation;
(j) provides an office address for an office staffed only part time or by
appointment only, without conspicuous identification of such fact;
(k) states that legal services are available on a contingent or no-recovery, no-fee
basis without stating conspicuously that the client may be responsible for costs or
expenses, if that is the case; or
(1) advertises for legal services without identifying the jurisdictions in which the
lawyer is licensed to practice.
Rule 7.2 Advertising.
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise
services through written, recorded, or electronic communication, including public
media.
(b) A lawyer shall not give anything of value to a person for recommending the
lawyer's services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by
this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified
lawyer referral service A qualified lawyer referral service is a lawyer referral service
that has been approved by an appropriate regulatory authority; and
(3) pay for a law practice in accordance with Rule 1.19.
(c) Any communication made pursuant to this rule shall include the name and
office address of at least one lawyer or law firm responsible for its content.
Rule 8.5 Jurisdiction and Certification.
A lawyer who is not an active member in good standing of the State Bar of
Montana and who seeks to practice in any state or federal court located in this State
pro hac vice, by motion, or before being otherwise admitted to the practice of law in
this State, shall, prior to engaging in the practice of law in this State, certify in writing
and under oath to this Court that, except as to Rules 6.1 through 6.4, he or she will be
bound by these Rules of Professional Conduct in his or her practice of law in this
State and will be subject to the disciplinary authority of this State. A copy of said
certification shall be mailed, contemporaneously, to the business offices of the State
Bar of Montana in Helena, Montana.
A lawyer not admitted to practice in this State is subject to the disciplinary
authority of this State for conduct that constitutes a violation of these Rules and that:
(1) involves the practice of law in this State by that lawyer; or-
(2) involves that lawyer holding himself or herself out as practicing law in this
State; e
(3) advertises, solicits, or offers legal services in this State or
4) involves the practice of law in this State by another lawyer over whom this
that lawyer has the obligation of supervision or control.
A lawyer shall not be subject to disci pline if the lawyer's conduct conforms to
the rules of a jurisdiction in which the lawyer reasonably believes the predominant
effect of the lawyer's conduct will occur.
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