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 99-04
Facts:
A South Carolina based Internet service company (the "Company") intends to provide consumers of legal services free access to basic professional biographical data of South Carolina lawyers who have contributed the data to the Company without charge. In addition, the Company will allow the lawyers to purchase advertising banner space on the site, which will be visible to the consumers accessing the site. The Company intends to advertise the availability of its Internet services through billboard, radio, print, and television advertisements.
Question:
Which South Carolina Rules of Professional Conduct ("SCRPC") regarding lawyer advertising are applicable to the facts set forth above?
Summary:
SCRPC 7.1, 7.2, 7.4 and 7.5 are applicable to the lawyer's communication and advertising of its services; none of the SCRPC are applicable to the Company's communication and advertising of the mere availability of the Internet service.
Opinion:
The facts present two distinct communication and advertising scenarios:
(1) Lawyer communication and advertising regarding the lawyer's services to the general public via the Internet; and
(2) Company communication and advertising regarding the availability of the Company's Internet service to the general public via billboard, radio, print, and television.
SCRPC 7.1 through 7.5 address lawyer advertising. As to the lawyer's communication and advertising, SCRPC 7.1, 7.2, 7.4 and 7.5 are clearly applicable, which require the lawyer to (i) submit only material which is not false or misleading; (ii) retain a copy of the advertisement or communication for two years after its last dissemination, along with a record of when and where it was used; (iii) pay only for the reasonable cost of placing the advertisement, without giving anything of value to anyone for the recommendation of the lawyer's services; (iv) include in the advertisement the name of at least one lawyer responsible for the advertisement's content; (v) properly designate certified specialties and concentrated areas of practice; and (vi) comply with requirements regarding the presentation of firm names and letterheads. SCRPC 7.3 is inapplicable, since the lawyer's communication and advertising via the Internet site will only be received by those members of the general public voluntarily accessing the site and will not involve the direct solicitation of professional employment from a prospective client known to be in need of legal services in a particular matter.
The Company's communication and advertising regarding the availability of its Internet service is not covered by the SCRPC, since it does not involve communication or advertising directly relating to a particular lawyer or a particular lawyer's services, but, instead, simply informs the general public as to where such material may be found.