UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 07-08
SC Rules of Professional Conduct: 5.4, 7.1, 7.2, 7.2(c)(1)
Facts
Real Estate Company (“Company”) routinely refers clients to Lawyer’s firm for closings. Company proposes to pay for a radio advertisement that they provide a “team approach” and have requested Lawyer, Insurance Agency and Lender to participate in the advertisement. The advertisement would give the name of Lawyer and his firm with Lawyer making a statement about working with Company.
Questions
Do the S.C. Rules of Professional Conduct prohibit Lawyer from participating in an advertisement paid by Company?
If the S.C. Rules of Professional Conduct do not prohibit Lawyer’s participating in the advertisement, must the advertisement conform to the S.C. Rules of Professional Conduct’s provisions on lawyer advertising and communications?
Summary
Lawyer may participate in Company’s advertisement as long as Lawyer pays the reasonable costs of the advertisement and ensures that the advertisement complies with the S.C. Rules of Professional Conduct’s provisions on lawyer advertising and communications.
Opinion
S.C. Rule of Professional Conduct 7.2(c)(1) provides that a lawyer “shall not give anything of value…for recommending the lawyer’s services…” unless the lawyer pays “the reasonable costs of advertisements.” It would appear that the intent of the Company’s proposed advertisement is for the “team” including Lawyer to recommend the services of the Company. However, the effect of the advertisement would be an indirect advertisement of the Lawyer’s services. By providing time for the recording of the advertisement, the Lawyer may be considered to be giving something of value for a referral. Thus, as long as Lawyer pays the reasonable costs of the advertisement, there does not appear to be an ethical prohibition against participating in Company’s advertisement.
All advertisements of a Lawyer must comply with the S.C. Rules of Professional Conduct’s provisions on lawyer advertising and communications. The Committee directs Lawyer to ensure compliance with Rules 7.1 and 7.2 specifically. The Committee would caution Lawyer to ensure that it is clear in Company’s advertisement that although there may be a “team approach,” the Lawyer is not in partnership with a nonlawyer in violation of Rule 5.4.