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 95-25
A law firm has identified a cause of action likely to be litigated as a class action, but the firm does not yet have a client to serve as named representative of the putative class. The law firm wants to advertise for a person to serve as representative of the class.
Question:
Before any litigation is filed, can a law firm advertise for a person to represent a class in a potential class action? Must any such advertisement state that it is a solicitation or identify the reasons for the solicitation? Must any such advertisement note that the solicitation is a call for a named representative of a potential class action when the class action has not yet been filed?
Summary:
Targeted media advertising is subject to Rules 7.1 and 7.2. The specific notices of Rule 7.3 are required only if a solicitation is directed to persons known to be in need of legal services. Whether specific explanatory language is needed setting forth the purpose for which clients are being sought would depend upon whether the text would otherwise be false or misleading.
Opinion:
Directed newspaper advertising does not have the same impact upon the recipient of the communication as does direct mail or in-person solicitation of prospective clients. Compare Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) with Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988). A media advertisement directed to the general public is governed by Rules 7.1 and 7.2. Rule 7.3 applies only to direct solicitations of prospective clients and would not govern a general media advertisement, even if that advertisement is targeted to a specific audience of persons with potential identified claims.
Any general advertisement of the type suggested by the inquirer must comply with the requirements of Rule 7.2(b) and (d) and must not be false or misleading, as prohibited by Rule 7.1. If the law firm elected, instead, to seek a client by letter or similar form of communication directed to individual recipients known to be in need of legal services, then the law firm would be required to comply with Rule 7.3.
It is not generally required that all lawyer advertising be specifically labelled as such. As to the question of whether any advertisement must disclose the purpose of the advertisement, the text of the advertisement must not mislead recipients as to its purpose. Whether it is necessary to include specific explanatory language to prevent the ad from being misleading will depend upon the full text of the communication.
This Committee does not offer any opinion beyond the ethical issue presented and specifically offers no opinion as to whether the practice might constitute barratry or any similar violation of law.