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 98-11
A South Carolina Attorney intends to advertise in the newspaper that the attorney practices in several areas of law, as follows: GENERAL PRACTICE: WILLS - FAMILY- CONTRACTS - BANKRUPTCIES. The attorney is a sole practitioner. The attorney is not licensed to practice in the United States Bankruptcy Court and cannot submit bankruptcy filings or otherwise practice in that court. The attorney will not indicate this limitation in the advertisement. Furthermore, the attorney lacks Rule 403 certification necessary to appear alone in Family Court.
QUESTIONS:
(1) Is the attorney required to reveal in the advertisement that the attorney cannot actually represent the client in appearances before the Family Court without the assistance of another attorney?
(2) Is the attorney required to reveal in the advertisement that the attorney cannot actually represent the client in Bankruptcy Court?
SUMMARY:
An advertisement for general legal services, including family law, which fails to disclose that the advertising attorney cannot appear in the actual conduct or trial of a state court case is a false and misleading communication prohibited by Rule 7.1. Furthermore, an advertisement for bankruptcy services which fails to disclose that the attorney cannot represent a client in Bankruptcy Court is a false and misleading communication prohibited by Rule 7.1.
OPINION:
Rule 7.2 provides that an attorney may advertise services through public media such as a newspaper. The attorney can list areas of practice as long as care is taken to comply with Rule 7.4 which sharply limits an attorney's ability to assert expertise or specialization in an area of practice. See Comments Rule 7.2. Such advertising, however, is subject to the requirements of Rule 7.1.
Rule 7.1 states that an attorney can not make a false or misleading communication about the attorney or the attorney's services. The Rule further provides that a "communication is false or misleading if it (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement as a whole not materially misleading." Rule 7.1(a). The Comment following Rule 7.2 explains the role of attorney advertising. The Comment states:
To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also though organized information campaigns in the form of advertising. Advertising involves the 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 fulfilled 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 principles in mind, this Committee has previously opined that 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." S.C. Bar Ethics Advisory Opinion 91-11 [emphasis added].
Omitting the fact that an attorney lacks Rule 403 certification in an advertisement for general legal services, including family law, is materially misleading. Rule 403 states that an attorney, although admitted to practice, may not appear alone in the actual conduct and trial of a case until a certificate has been filed with the Clerk of the Supreme Court showing the attorney has had eleven (11) trial experiences. Therefore, while an attorney can practice law without filing a Rule 403 certification, he or she may not appear alone before any court in the trial of any case.
The Committee also finds it materially misleading for an attorney to advertise bankruptcy services and omit the fact that the attorney cannot make any type of appearance in Bankruptcy Court on behalf of a client. SC Local Bankruptcy Rule 9010-1(a)(1) states that an attorney admitted to the District Court is considered admitted to practice before the United States Bankruptcy Court. Proof of such admission, by the use of the attorney's district court identification number, is required on all pleadings, documents, or other papers filed with the Bankruptcy Court. Id. Therefore, an attorney cannot represent a client in the Bankruptcy Court in any type of bankruptcy proceedings without admission to the District Court.
If the attorney wishes to list areas of practice in a newspaper advertisement, the attorney must disclose the limitations on the services the attorney can provide. The information must be presented in a way that is not false, misleading or deceptive in order to comply with the requirements of Rule 7.1.