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For submission and review at the SCLA meeting scheduled for August 31, 2005 CONCURRENT REVIEW SUBCOMMITTEE REPORT Submitted by: William C. Turner, Esq. Chair, SCLA Chair, Concurrent Review Subcommittee Subcommittee members: Rob Bare, Dean Richard Morgan, Patrice Perez State Bar of Nevada Study Committee on Lawyer Advertising (SCLA) William C. Turner, Esq., Chair Hon. Nancy A. Becker, Nv. S.Ct. Chief Justice Hon. James W. Hardesty, Nv. S.Ct. Justice Edward M. Bernstein, Esq. Steven M. Burris, Esq. Hon. Michael A. Cherry, 8th Judicial District Tracy A. Eglet, Esq. Dominic P. Gentile, Esq. Rew R. Goodenow, Esq., Board of Governors Tracey L. Itts, Esq. Bradley L. Kenny, Esq. Tom McAffee, Professor, UNLV Law School Terry McConnell, laymember Richard J. Morgan, Dean, UNLV Law School Richard W. Myers, Esq. Peter Chase Neumann, Esq. Patrice D. Perez, Esq. Brian D. Sandoval, Nevada Attorney General Bryan K. Scott, Esq. Caryn Swobe, laymember Reporter Allen W. Kimbrough, Executive Director, CAE Administrative Support: Audrey Bath, Director of Bar Services [email protected] 317-1401 Legal Support Rob W. Bare, Bar Counsel Staff Contact: Paralegal Kristina Marzec, CLA [email protected] 317-1426 OVERVIEW In 2004, the Office of Bar Counsel researched the question of how other state bars address reviewing attorney advertisements. 1 The results of its polling indicated the mainstream approach, where there is any review process, is an advisory committee. Requisite approval before dissemination is not the favored approach due to censorship and First Amendment Constitutional concerns, as previously discussed by the SCLA. More commonly lawyers who fail to voluntarily comply with the recommendations of the reviewing entity would then be referred to Bar Counsel for processing as with any other complaint. To illustrate comparisons, consider the following seven (7) states: o California. No screening. There is no advisory committee or Bar staff available to “pre-view” ads given their resources. All regulatory review is after the fact, but lawyers are given a chance to take remedial action without receiving disciplinary sanctions. o Florida. Mandatory review. Florida has a requirement that all ads that are not exempt (tombstone-type ads) be filed either prior to or at the time they are first disseminated. The review is performed by the attorneys of the Bar's Ethics & Advertising Department. The department is separate from Lawyer Regulation, which handles bar grievances, See also SCLA Handbook 1, Tab Model Rule 7.2, for a hard copy of rules in alphabetical order. 1. all 50 states’ comparable so disciplinary counsel do not perform the review in Florida. The opinion in each advertising file is subject to review by the Florida Bar Standing Committee on Advertising and the bar's board of governors upon timely request of the person who filed the advertisement. o Indiana. No screening, but is under discussion. Indiana Bar Counsel advised there is a movement afoot from a respondent's counsel to move the Indiana Supreme Court to adopt advertising prescreening. The argument is that it should be done upon payment of a substantial enough fee that it is a least revenue neutral, and perhaps even a profit center to the Bar. Indiana Bar Counsel notes his opinion that this is the rendering of legal advice and Bar Counsel shouldn’t be in the business of being legal counsel to the members of the bar. o Kentucky. Pre-screening required by Bar Counsel. KY requires that ads be submitted thirty (30) days before dissemination unless they are very simple identification type ads. Kentucky Bar Counsel commented: Because of constitutional issues the Attorneys Advertising Commission (all volunteers) takes the position this is discretionary but the rule says "shall"(SCR 3.130-7.05(2).) The AAC has now proposed regulations (which the OBC wrote largely based on rules from other states) that are pretty clearly designed to eliminate false and deceptive ads. The Bar is receiving threats of a lawsuit, not necessarily about the new regulations of the Commission but the Supreme Court rule which has now been in effect over 10 years. The advertisers want to talk about a temporary injunction, which is interesting since I do not see how you prove immediate and irreparable harm when the rule has been in effect and followed for 10 years. The bottom line is that with the expansion of the Commission and the potential of new guidelines in the regulations for the commission, the advertisers are now waking up to the fact that they might get into some disciplinary problems and they are now complaining about the prior approval. If our rules are changed I believe the Court will go to a simultaneous submission, not eliminate it completely. o Maryland. Some pre-screening by Bar. Maryland, by statute, requires targeted mail for personal injury and those accused of criminal behavior to file their letter and list of addresses with Bar Counsel, who views the letters for truthfulness and the letters must have "this is an advertisement" at the top and bottom of the letter and on the envelope. Concurrent Review Draft Report Page 2 o New Mexico. against) Mandatory review (a cautionary tale for potential pitfalls to guard New Mexico Bar Counsel comments: For more than ten years, New Mexico had a volunteer committee that reviewed ads. At the New Mexico Bar’s suggestion, the Court (in 2004) abolished [the Committee]. The longer the Committee continued, the more problems there were with consistency--tracking phrases that had been approved and disapproved. The committee also became convinced that many lawyers just did not submit their ads-particularly yellow pages. We also found that when we filed formal charges on advertising we became embroiled in questions about the Committee’s compliance with its own procedures and constitutional questions. Our Court kept the substantive rules and announced to NM lawyers that they will be addressed like all other rule violations in the future. o Wisconsin. Mandatory review. Wisconsin SCR 20:7.3(b) requires copies of direct mail ads (but not other types of advertising) to be filed with the Office of Lawyer Regulation within five days of dissemination. Content review is usually undertaken by investigative staff. The “Texas Model” of concurrent review. Texas has an Advertising and Review Committee (See Texas Disciplinary Rule 7.07, Attachment 1). Much like Kentucky, staff for the Committee in Texas advises that this isn’t really considered mandatory- they don’t go after people who don’t submit. However, under the Rule the submission can be before or contemporaneously to the first dissemination of the ad. If the applicant wants an advisory opinion in writing, they must submit within 30 days. This Committee consists of volunteers, and there is a small staff department in the Bar itself which assists the Committee somewhat like Nevada’s Fee Dispute Coordinator. This Committee does however have significant authority to review all ads which are considered “standard.” Staff only forward to the Committee those ads deemed complicated or presenting compelling legal issues. It was the Texas model which was most discussed at our last SCLA meeting and favored by the State Bar for the substance of the rule itself (if not the actual application described by Texas), and will therefore be discussed in detail below as the “concurrent review model.” A sample rule is attached solely as a basis for reference and discussion. (Attachment 2.) Concurrent Review Draft Report Page 3 Who does the review? Either a Committee or the Office of Bar Counsel. The sample rule provides for the creation of an Advertising Review Committee which would be appointed by and report to the Board of Governors (Board). The Committee would then create by-laws and rules of procedure subject to ratification by the Board of Governors (with bar counsel’s assistance if desired). I believe a State Bar staff coordinator would be appropriate, similar to the way Fee Dispute Arbitration is structured procedurally. Alternatively, an additional staff member with the primary function of attorney advertising could be added directly to the Office of Bar Counsel and the process handled in house. Review process The sample rule assumes a Committee is created, but could be easily amended to substitute the model with the Office of Bar Counsel handling review in house. The basic process is the same. The sample is structured such that it covers the filing requirements for public media advertisements and written solicitations. Subsection 2 deals with those written solicitations sent by a lawyer to one or more specified prospective clients. Subsection 3 deals with advertisements in the public media. Each provision allows the Bar to charge a fee for reviewing submitted materials, but requires that fee be set solely to defray the expenses of enforcing those provisions. Copies of non-exempt written solicitations or advertisements in the public media must be provided to the Committee either in advance or concurrent with dissemination, together with the required fee. The Committee will forward to Bar Counsel any reviewed products it receives already in dissemination in the public or written media that violate SCRs 195-199. Note that sample subsections 2 and 3 do not require that a lawyer submit a copy of each and every written solicitation letter sent in mass mailings. A representative sample letter and envelope are sufficient. Sample subsection 4 provides a mechanism for optional advanced ad approval. This process is intended as a service to those lawyers who may want to resolve any possible doubts before committing expenditures and running advertisements. Often times pulling a running advertisement can create significant monetary loss. Also problematic is after the fact discovery of a non-compliant advertisement in print mediums in common circulation that only produce new editions on a limited basis, the best example being the yellow pages of the phone book. This would be a purely optional member service. It is not contemplated that a lawyer would ever be required to obtain advance clearance from the Bar or Committee. Another benefit of the advance review provision as used in Texas and in the sample is that a finding of compliance is binding in favor of the submitting lawyer as long as the Concurrent Review Draft Report Page 4 lawyer’s submission to the Committee was true and not misleading. A positive compliance opinion would be an absolute bar to later discipline proceedings as to the specific approved ad (provided the ad is not altered from the approved version, of course). To prevent an unrealistic onslaught of “last minute” pre-approval requests, the proposed language does not guarantee a response within less than thirty (30) days of submission. However, that does not mean that such requests would not be accommodated where possible. Consistent with the effort to protect the first amendment rights of lawyers while balancing (1) the right of the public to be free from misleading and false advertising and (2) the interests of the bench and bar in maintaining the integrity of the legal profession, subsection 5 exempts certain types of advertisements and written solicitations prepared for the purpose of seeking paid professional employment from filing requirements under this rule. For the most part, the types of exempted advertising set forth in sample subsection 5(a)-(e) are objective and less likely to result in false, misleading or fraudulent content. Similarly, the types of exempted written solicitations listed in 5(f)-(h) are of the type least likely to create misconceptions and result in harm to the public. The fact that a particular advertisement/solicitation is exempted from mandatory filing does not in any way obviate the requirement that its content be compliant with the relevant rules of professional conduct. Subsection 6 empowers the Committee to seek information from a lawyer to substantiate statements or representations made or implied in advertisements/solicitations that are required to be filed under this rule. Note that this subsection can arguably be eliminated if the recommendation elects to have the review done in-house by Bar Counsel rather than an outside Committee. This model appears to balance first amendment rights and public policy concerns. While submission of certain types of ads and solicitation is required, compliance and enforcement remain solely the purview of the disciplinary boards and the Court. This is simply a way to assist in enforcing the rules uniformly, as well as codifying existing policy to offer “pre-approval” of advertisements for our members. As such, due process is not changed by its implementation. Note that additional study is needed from a fiscal impact standpoint, and that information will vary depending on the model chosen (Committee versus in-house). If the SCLA approves the idea of concurrent screening in principle, Bar Counsel has offered to assist with putting together fiscal impact scenarios for inclusion in the SCLAs final recommendations. Concurrent Review Draft Report Page 5 Texas Disciplinary Rules of Professional Conduct (Tex. Disciplinary R. Prof. Conduct, (1989) reprinted in Tex. Govt Code Ann., tit. 2, subtit. G, app. (Vernon Supp. 1995)(State Bar Rules art X [[section]]9)) VII INFORMATION ABOUT LEGAL SERVICES 7.07 Filing Requirements for Public Advertisements and Written Solicitations (a) Except as provided in paragraph (d) of this Rule, a lawyer shall file with the Advertising Review Committee of the State Bar of Texas, either before or concurrently with the mailing or sending of a written solicitation communication: (1) a copy of the written solicitation communication being sent or to be sent to one or more prospective clients for the purpose of obtaining professional employment, together with a representative sample of the envelopes in which the communications are enclosed; and (2) a check or money order payable to the State Bar of Texas for the fee set by the Board of Directors. Such fee shall be for the sole purpose of defraying the expense of enforcing the rules related to such solicitations. (b) Except as provided in paragraph (d) of this Rule, a lawyer shall file with the Advertising Review Committee of the State Bar of Texas, either before or concurrently with the first dissemination of an advertisement in the public media, a copy of each of the lawyer’s advertisements in the public media. The filing shall include: (1) a copy of the advertisement in the form in which it appears or is or will be disseminated, such as a videotape, an audiotape, a print copy, or a photograph of outdoor advertising; (2) a production script of the advertisement setting forth all words used and describing in detail the actions, events, scenes, and background sounds used in such advertisement together with a listing of the names and addresses of persons portrayed or heard to speak, if the advertisement is in or will be in a form in which the advertised message is not fully revealed by a print copy or photograph; Concurrent Review Draft Report Attachment 1 Page 1 (3) a statement of when and where the advertisement has been, is, or will be used; and (4) a check or money order payable to the State Bar of Texas for the fee set by the Board of Directors. Such fee shall be for the sole purpose of defraying the expense of enforcing the rules related to such advertisements. (c) A lawyer who desires to secure an advance advisory opinion concerning compliance of a contemplated written solicitation communication or advertisement may submit to the Advertising Review Committee, not less than thirty (30) days prior to the date of first dissemination, the material specified in paragraph (a) or (b) of this Rule, including the required fee; provided however, it shall not be necessary to submit a videotape if the videotape has not then been prepared and the production script submitted reflects in detail and accurately the actions, events, scenes, and background sounds that will be depicted or contained on such videotapes, when prepared, as well as the narrative transcript of the verbal and printed portions of such advertisement. An advisory opinion of the Advertising Review Committee of noncompliance is not binding in a disciplinary proceeding or disciplinary action but a finding of compliance is binding in favor of the submitting lawyer if the representations, statements, materials, facts and written assurances received in connection therewith are true and are not misleading. The finding constitutes admissible evidence if offered by a party. (d) The filing requirements of paragraphs (a) and (b) do not extend to any of the following materials: (1) an advertisement in the public media that contains only part or all of the following information, provided the information is not false or misleading: (i) the name of the lawyer or firm and lawyers associated with the firm, with office addresses, telephone numbers, office and telephone service hours, telecopier numbers, and a designation of the profession such as attorney , lawyer , law office , or firm; (ii) the fields of law in which the lawyer or firm advertises specialization and the statements required by Rule 7.04 (a) through (c); Concurrent Review Draft Report Attachment 1 Page 2 (iii) the date of admission of the lawyer or lawyers to the State Bar of Texas, to particular federal courts, and to the bars of other jurisdictions; (iv) technical and professional licenses granted by this state and other recognized licensing authorities; (v) foreign language ability; (vi) fields of law in which one or more lawyers are certified or designated, provided the statement of this information is in compliance with Rule 7.02(a) through (c); (vii) identification of prepaid or group legal service plans in which the lawyer participates; (viii) the acceptance or nonacceptance of credit cards; (ix) any fee for initial consultation and fee schedule; (x) that the lawyer or firm is a sponsor of a charitable, civic, or community program or event, or is a sponsor of a public service announcement; (xi) any disclosure or statement required by these rules; and (xii) any other information specified from time to time in orders promulgated by the Supreme Court of Texas; (2) an advertisement in the public media that: (i) identifies one or more lawyers or a firm as a contributor to a specified charity or as a sponsor of a specified charitable, community, or public interest program, activity, or event; and Concurrent Review Draft Report Attachment 1 Page 3 (ii) contains no information about the lawyers or firm other than names of the lawyers or firm or both, location of the law offices, and the fact of the sponsorship or contribution; (3) a listing or entry in a regularly published law list; (4) an announcement card stating new or changed associations, new offices, or similar changes relating to a lawyer or firm, or a tombstone professional card; (5) a newsletter mailed only to: (i) existing or former clients; (ii) other lawyers or professionals; and (iii) members of a nonprofit organization that meets the following conditions: the primary purposes of the organization do not include the rendition of legal services; the recommending, furnishing, paying for, or educating persons regarding legal services is incidental and reasonably related to the primary purposes of the organization; the organization does not derive a financial benefit from the rendition of legal services by a lawyer; and the person for whom the legal services are rendered, and not the organization, is recognized as the client of the lawyer who is recommended, furnished, or paid by the organization; (6) a written solicitation communication that is not motivated by or concerned with a particular past occurrence or event or a particular series of past occurrences or events, and also is not motivated by or concerned with the prospective clients specific existing legal problem of which the lawyer is aware; (7) a written solicitation communication if the lawyers use of the communication to secure professional employment was not significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain; or Concurrent Review Draft Report Attachment 1 Page 4 (8) a written solicitation communication that is requested by the prospective client. (e) If requested by the Advertising Review Committee, a lawyer shall promptly submit information to substantiate statements or representations made or implied in any advertisement in the public media and/or written solicitation. Comment: 1. Rule 7.07 covers the filing requirements for public media advertisements (see Rule 7.04) and written solicitations (see Rule 7.05). Rule 7.07(a) deals with those written solicitations sent by a lawyer to one or more specified prospective clients. Rule 7.07(b) deals with advertisements in the public media. Each provision allows the Bar to charge a fee for reviewing submitted materials, but requires that fee be set solely to defray the expenses of enforcing those provisions. 2. Copies of non-exempt written solicitations or advertisements in the public media must be provided to the Review Committee of the State Bar of Texas either in advance or concurrently with dissemination, together with the fee required by the State Bar of Texas Board of Directors. Presumably, the Review Committee will report to the appropriate grievance committee any lawyer whom it finds from the reviewed products has disseminated an advertisement in the public media or written solicitation that violates Rules 7.02, 7.03, 7.04, or 7.05, or, at a minimum, any lawyer whose violation raises a substantial question as to that lawyers honesty, trustworthiness, or fitness as a lawyer in other respects. See Rule 8.03(a). 3. Paragraphs (a) and (b) do not require that a lawyer submit a copy of each and every written solicitation letter a lawyer sends. If the same form letter is sent to several people, only a representative sample of each form letter, along with a representative sample of the envelopes used to mail the letters, need be filed. 4. A lawyer wishing to do so may secure an advisory opinion from the Review Committee concerning any proposed advertisement in the public media or any written solicitation in advance of its first use or mailing by complying with Rule 7.07(c). This procedure is intended as a service to those lawyers who want to resolve any possible doubts about their proposed advertisements or written solicitations compliance with these Rules before utilizing them. Its use is purely optional. No lawyer is required to obtain advance clearance of any advertisement or written solicitation communication from the State Bar. Although a finding of noncompliance by the Review Committee is not Concurrent Review Draft Report Attachment 1 Page 5 binding in a disciplinary proceeding, a finding of compliance is binding in favor of the submitting lawyer, as long as the lawyers presentation to the Review Committee in connection with that advisory opinion is true and not misleading. 5. Under its Internal Rules and Operating Procedures, the Lawyer Advertising and Solicitation Review Committee is to complete its evaluations no later than 25 days after the date of receipt of a filing. The only way that the Committee can extend that review period is to: (1) determine that there is reasonable doubt whether the advertisement or written solicitation communication complies with these Rules; (2) conclude that further examination is warranted but cannot be completed within the 25 day period; and (3) advise the lawyer of those determinations in writing within that 25 day period. The Committees Internal Rules and Operating Procedures also provide that a failure to send such a communication to the lawyer within the 25 day period constitutes approval of the advertisement or written solicitation communication. Consequently, if an attorney submits an advertisement in the public media or written solicitation communication to the Committee for advance approval not less than 30 days prior to the date of first dissemination as required by these Rules, the attorney will receive an assessment of that advertisement or communication before the date of its first intended use. 6. Consistent with the effort to protect the first amendment rights of lawyers while ensuring the right of the public to be free from misleading advertising and the right of the Texas legal profession to maintain its integrity, paragraph (d) exempts certain types of advertisements and written solicitations prepared for the purpose of seeking paid professional employment from the filing requirements of paragraphs (a) and (b). Those types of communications need not be filed at all if they were not prepared to secure paid professional employment. 7. For the most part, the types of exempted advertising listed in subparagraphs (d)(1)-(5) are objective and less likely to result in false, misleading or fraudulent content. Similarly the types of exempted written solicitations listed in sub-paragraphs (d)(6) - (8) are those found least likely to result in harm to the public. See Rule 7.05(e), and comment 5 to Rule 7.05. The fact that a particular advertisement or written solicitation made by a lawyer is exempted from the filing requirements of this Rule does not exempt a lawyer from the other applicable obligations of these Rules. See generally Rules 7.01 through 7.06. Concurrent Review Draft Report Attachment 1 Page 6 8. Paragraph (e) does not empower the Advertising Review Committee to seek information from a lawyer to substantiate statements or representations made or implied in advertisements or written communications that do not seek to obtain paid professional employment for that lawyer. Concurrent Review Draft Report Attachment 1 Page 7 SAMPLE RULE (INFORMATION ABOUT LEGAL SERVICES: Review Committee: Filing Requirements) Advertising Review Committee; Filing Requirements for Public Advertisements and Written Solicitation 1. Advertising Review Committee. The Advertising Review Committee of the State Bar of Nevada is hereby established. The Committee shall consist of at least 5 members of the state bar of Nevada, appointed by the board of governors, with additional members at the board’s discretion. The Committee shall promulgate by-laws and rules of procedure consistent with applicable Supreme Court Rules to be approved by the board of governors. 2. Filing Requirements. Except as provided in subsection 5 of this Rule, a lawyer shall file with the Advertising Review Committee of the state bar of Nevada, either before or concurrently with the mailing or sending of a written solicitation communication: (a) a copy of the written solicitation communicating being sent or to be sent to one or more prospective clients for the purpose of obtaining professional employment, together with a representative sample of the envelopes in which the communications are enclosed: and (b) a check or money order payable to the State Bar of Nevada for a fee set by the Board of Governors. Such fee shall be for the sole purpose of defraying the expense of enforcing the rules related to such solicitations. 3. Except as provided in subsection 5 of this Rule, a lawyer shall file with the Advertising Review Committee of the State Bar of Nevada, either before or concurrently with the first dissemination of an advertisement in the public media, a copy of each of the lawyers advertisements in the public media. The filing shall include: (a) a copy of the advertisement in the form in which it appears or is or will be disseminated, such as a videotape, an audiotape, a print copy, or a photograph of outdoor advertising; (b) a production script of the advertisement setting forth all words used and describing in detail the actions, events, scenes, and background sounds used in such advertisement together with a listing of the names and addresses of persons portrayed or heard to speak, if the advertisement is in or will be in a form in which the advertised message is not fully revealed by a print copy or photograph; (c) a statement of when and where the advertisement has been, is, or will be used; and Concurrent Review Draft Report Attachment 2 Page 1 (d) a check or money order payable to the State Bar of Nevada for the fee set by the Board of Governors. Such fee shall be for the sole purpose of defraying the expense of enforcing the rules related to such advertisements. 4. A lawyer who desires to secure an advance advisory opinion concerning compliance of a contemplated written solicitation communication or advertisement may submit to the Advertising Review Committee, not less than thirty (30) days prior to the date of first dissemination, the material specified in subsections 2 or 3 of this Rule, including the required fee; provided however, it shall not be necessary to submit a videotape if the videotape has not then been prepared and the production script submitted reflects in detail and accurately the actions, events, scenes, and background sounds that will be depicted or contained on such videotapes, when prepared, as well as the narrative transcript of the verbal and printed portions of such advertisement. An advisory opinion of the Advertising Review Committee of noncompliance is not binding in a disciplinary proceeding or disciplinary action but a finding of compliance is binding in favor of the submitting lawyer if the representations, statements, materials, facts and written assurances received in connection therewith are true and are not misleading. The finding constitutes admissible evidence if offered by a party. 5. The filing requirements of subsections 2 and 3 do not extend to any of the following materials: (a) an advertisement in the public media that contains only part or all of the following information, provided the information is not false or misleading: (i) the name of the lawyer or firm and lawyers associated with the firm, with office addresses, telephone numbers, office and telephone service hours, telecopier numbers, and a designation of the profession such as attorney, lawyer, law office, or firm; (ii) the fields of law in which the lawyer or firm advertises specialization and the statements required by Rules 196 and 198; (iii) the date of admission of the lawyer or lawyers to the State Bar of Nevada, to particular federal courts, and to the bars of other jurisdictions; (iv) technical and professional licenses granted by this state and other recognized licensing authorities; (v) foreign language ability; (vi) fields of law in which one or more lawyers are certified provided the statement of this information is in compliance with Rules 196 and 198; (vii) identification of prepaid or group legal service plans in which the lawyer participates; Concurrent Review Draft Report Attachment 2 Page 2 (viii) the acceptance of nonacceptance of credit cards; (ix) any fee for initial consultation and fee schedule; (x) that the lawyer or firm is a sponsor of a charitable, civic, or community program or event, or is a sponsor of a public service announcement; (xi) any disclosure or statement required by these rules; and (xii) any other information specified from time to time in orders promulgated by the Supreme Court of Nevada; (b) an advertisement in the public media that: (i) identifies one or more lawyers or a firm as a contributor to a specified charity or as a sponsor of a specified charitable, community, or public interest program, activity, or event: and (ii) contains no information about the lawyers or firm other than names of the lawyers or firm or both, location of the law offices, and the fact of the sponsorship or contribution; (c) a listing or entry in a regularly published law list; (d) an announcement card stating new or changed associations, new offices, or similar changes to a lawyer or firm, or a tombstone professional card; (e) a newsletter mailed only to: (i) existing or former clients; (ii) other lawyers or professionals; and (iii) members of a nonprofit organization that meets the following conditions: the primary purposes of the organization do not include the rendition of legal services; the recommending, furnishing, paying for, or educating persons regarding legal services is incidental and reasonably related to the primary purposes of the organization; the organization does not derive a financial benefit from the rendition of legal services by a lawyer; and the person for whom the legal services are rendered, and not the organization, is recognized as the client of the lawyer who is recommended, furnished, or paid by the organization; (f) a written solicitation communication that is not motivated by or concerned with a particular past occurrence or event or a particular series of past occurrences or Concurrent Review Draft Report Attachment 2 Page 3 events, and also is not motivated by or concerned with the prospective clients specific existing legal problem of which the lawyer is aware; (g) a written solicitation communication if the lawyers use of the communication to secure professional employment was not significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain; or (h) a written solicitation communication that is requested by the prospective client. 6. If requested by the Advertising Review Committee, a lawyer shall promptly submit information to substantiate statements or representations made or implied in any advertisement in the public media and/or written solicitation. Concurrent Review Draft Report Attachment 2 Page 4