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 91-11
An attorney intends to solicit by radio and newspaper ads clients who potentially may have workers' compensation claims. The attorney had submitted text for seven newspaper ads and scripts for three radio commercials and queries if the proposed advertisements violate the Rules of Professional Conduct. The ads are in various formats with informational portions concerning various types of injuries or situations which may generate workers' compensation claims and factual assertions concerning the attorney's experience and that fees would be handled on a contingency basis.
Questions:
Is it appropriate for the Ethics Advisory Committee to determine if the text or script of a particular advertisement violates the Rules of Professional Conduct?
Do any of the enclosed advertisements on their face violate Rule 7.1 and 7.2 concerning paid advertisements?
What standards are applicable when presenting advertisements of this nature?
Summary:
It would be inappropriate and impractical for the Ethics Advisory Committee to pass judgment on the texts and scripts of the hundreds print and media advertisements which will be utilized by attorneys in South Carolina each year. While the text of the specific advertisements presented here on their face do not appear to involve ethical violations, there are a number of considerations concerning the potential of the advertisements to mislead or the validity of the factual assertions made in the advertisements which could place the advertisements in violation of the Rules of Professional Conduct and are beyond the ability of the Ethics Advisory Committee to evaluate. It is appropriate for the committee to reiterate the standards as set forth in Rule 7.1 and 7.2 for advertisements soliciting clients.
Opinion:
This request asked the committee to pass on the texts and scripts of 10 separate newspaper and radio advertisements and determine if they violate any ethical standard. Without an investigation by Ethics Advisory Committee of all the factual assertions contained in each advertisement to determine if they are truthful and as a whole are not materially misleading or likely to create unjustified expectation, it is impossible for the Committee to determine if such ads are in compliance with the rules of ethics. Each attorney who participates in such communications must bear the individual responsibility of reviewing the proposed advertisement and determining if each and every factual assertion is true, whether he/she has omitted any fact necessary to make the statement as a whole "not materially misleading", and insure that the advertisements would not create unjustified expectations. For example, in the specific texts and scripts submitted reference is made to a number of medical conditions with the indication that they could be the basis of a worker's compensation claim. If in fact the condition was highly unlikely to result in a successful worker's compensation claim, the ad would be misleading and could engender unjustified expectations on the part of the client. It is not the responsibility nor within the capacity of this committee to investigate the substance of such assertions and determine if they can be factually verified. This is the responsibility of the attorney placing the advertisement.
The standard set forward by Rule 7.1 for truth in advertising by attorneys is a high one. Section 7.1(a) proscribes omission of any fact "necessary to make the statement considered as a whole not materially misleading". Section 7.1(b) prohibits the creation of any unjustified expectation about the results the attorney can achieve or any implication that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other laws. The type of puffery that is common in other advertisements is not permissible in communications by attorneys directed at potential clients.
In addition to the restriction in Rule 7.1, Rule 7.2 requires that the attorney maintain a copy or recording or any advertisement, for a period of two years after its last dissemination along with a record of when and where it was used. This would permit subsequent scrutiny if there are complaints about the factual accuracy or expectations created by a particular advertisement.
While it is impossible for the committee to comment on each factual assertion made in the advertisements, it may be helpful to point a pitfall by noting one example. In one of the scripts for a radio commercial the statement is made by the attorney "Call me now. I'll be happy to meet with you in Columbia or at your location. I will be on your side." This could be read as a promise that anyone willing to call will be afforded an interview at their home no matter how questionable the injuries they initially described. Unless the attorney is willing to carry through on such a promise, there should be some qualification in the assertion of the attorney's willingness to meet at the client's location.
The Rules of Professional Conduct permit advertising and in fact the Comment to Rule 7.2 notes that such advertising can play a positive role. The comment states:
"Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be filled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching." With these considerations and caveats in mind, an attorney should carefully examine the text or script of any proposed advertisement and fact by fact insure that there are no misrepresentations and that the client will not be misled in their expectations of the services that may be rendered by the attorney." In the future this committee will respond to specific inquiries concerning the ethical appropriateness of a specific assertion or form of an advertisement, but would refer attorneys to this opinion for the review of the text or script of their proposed ad in its totality.