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LEGAL ETHICS OPINION 1750-- ADVERTISING ISSUES The Standing Committee on Lawyer Advertising and Solicitation issued twelve advertising opinions between April 28, 1993 and February 29, 2000. Despite publication of those opinions in the Virginia Lawyer Register, many members of the Bar have had difficulty accessing the opinions. The Standing Committee on Lawyer Advertising and Solicitation has reviewed all of its previous opinions, and hereby issues the following compendium opinion which summarizes many of the existing advertising opinions and incorporates previously issued legal ethics opinions on the subject of lawyer advertising. In order to provide all members of the Bar with better access to the advertising opinions, this compendium opinion, issued by the Standing Committee on Lawyer Advertising and Solicitation, will be published as a Legal Ethics Opinion. See, Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 10; Virginia State Bar Bylaws, Article VII, Section 5. Some of the issues addressed in this opinion include: use of actors; use of the phrase "no recovery, no fee," laudatory statements by third parties; use by law firm of a fictitious name; use of specific or cumulative case results; and participation in a lawyer referral service. The prohibition in Rule 7.1 concerning advertising which is false, fraudulent, deceptive or misleading applies to all public communications and includes communications over the Internet. The committee observes that a lawyer’s communications over the Internet are "disseminated to the public by use of electronic media" for which the lawyer has given value, and therefore are subject to the requirements of Rule 7.1. The appropriate and controlling rule relevant to the questions raised is Rule 7.1, which states in part: (a) A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains false, fraudulent, misleading, or deceptive statement or claim. For example, a communication or advertisement violates this rule if it: (1) contains misleading fee information (2) states or implies that the outcome of a particular legal matter was not or will not be related to its facts or merits; (3) compares the lawyer’s services with other lawyer’s services, unless the comparison can be factually substantiated; (4) contains an endorsement by a celebrity or public figure who is not a client of the firm without disclosure (i) of the fact that the speaker is not a client of the lawyer or the firm, and (ii) whether the speaker is being paid for the appearance or endorsement; or (5) contains a portrayal of a client by a non-client without a disclosure that the depiction is a dramatization.
A. Use of Actors in Lawyer Advertising Rule 7.1(a) articulates several examples of communications which are prohibited, including an advertisement which contains a portrayal of a client by a non-client without a disclosure that the depiction is a dramatization. Rule 7.1(a)(5). The committee considered the issue of whether a television advertisement is misleading when a lawyer or law firm uses an actor to portray an attorney associated with the law firm without disclosing that fact in the advertisement. The committee viewed numerous advertisements in which, either by direst statement or by implication, it appears that a person is an attorney associated with the advertised law firm, even though that person is not, in fact, an employee or member of the law firm. In particular, when actors are speaking they frequently include first person references to themselves as lawyers or as members of the law firm being advertised. The committee is of the opinion that failing to disclose that the actor is not truly an employee or member of the law firm, when the language used implies otherwise, is misleading or deceptive. Therefore, the committee concludes that advertisements which use actors who portray attorneys or employees of a law firm are misleading and deceptive, absent a clear disclosure that the actor is not a member or employee of the firm or that the depiction is a dramatization. LEO 1119 is overruled to the extent that it is inconsistent with this opinion. B. Use of "No Recovery, No Fee" The committee considered whether the language "no recovery, no fee" contained in advertising or other public communication soliciting claims for cases in which contingent fees are permissible was misleading or deceptive pursuant to Rule 7.1(a), under circumstances in which the advertising or public communication did not also include an explanation that the client was obligated to pay litigation expenses and court costs, regardless of whether any recovery was obtained. The committee determined that the use of the explicit phrase "no recovery, no fee" in the solicitation of contingent fee cases is misleading or deceptive without any additional explanation that litigation expenses and court costs would be payable regardless of outcome because the public generally may not distinguish the difference between the terms "fee" and "costs". See Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U. S. 626, 652-3 (1985) (finding that "the State’s position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client’s liability for costs is reasonable enough to support a requirement that information regarding the client’s liability for costs be disclosed"). The statement "no recovery, no fee" is misleading in light of the fact that a client is or may be liable for costs even if there is no recovery. See Rule 1.8(e). The statement is improper unless a suitable disclaimer is added. Also, the committee considered the propriety of such phrases as "we guarantee to win, or you don’t pay," "we are paid only if you collect," "no charge unless we win," or other language not making explicit reference to a legal "fee." Language of this type that does not make explicit reference to a "fee" is misleading and deceptive in violation of Rule 7.1(a) since the language includes the implication that the client will not be required to pay either expenses or attorney’s fees if there is no recovery, but does not disclose the circumstances in which the client will be obligated to reimburse the attorney for any litigation expenses and court costs advanced, regardless of outcome. See also Rule 1.8(e). LEO 1029 is overruled to the extent that it is inconsistent with the opinion.
The question arises whether and under what circumstances attorneys may advertise using a corporate, trade, or fictitious name which is not the name or names of the firm, the attorney, or the attorneys in the firm. For example, in reviewing the telephone directory yellow page advertisements, the committee has observed instances where attorneys have used the letter "A" "AA" or "AAA" as the first word in a name listing with the apparent intent to be in the front or near the front of the "Attorneys" or "Lawyers" section of the yellow pages. It is misleading and deceptive under Rule 7.1(a)(1) and 7.5(d) for an attorney or attorneys to advertise using a corporate, trade or fictitious name unless the attorney or attorneys actually practice under such name. Use of a name which is not the name used in the practice is misleading and deceptive as to the identity, responsibility, and status of those using such name. The usage of a corporate, trade, or fictitious name should include, among other things, displaying such name on the letterhead, business cards, and office sign. Furthermore, the usage of such name shall be in compliance with Rule 7.5 and shall comply with applicable laws, including Sections 13.1-542 et seq. Or Sections 59.1-69 et seq. Of the Code of Virginia. See also LEOs 589, 935, 937, 1242, 1342, 1356, 1369.
The question arises whether it is permissible for an advertisement to state that an individual injured in an automobile accident must consult an attorney before speaking to any representative of an insurance company. While it may make good sense for an individual involved in an accident with an injury to consult with an attorney before speaking with a representative from an insurance company, there is no legal requirement for this. Since the proposed advertisement makes an explicitly false statement, to wit, that an individual "will have to consult an attorney," the proposed advertisement would be in violation of Rule 7.1.
Attorneys may advertise participation in lawyer referral services and joint marketing arrangements so long as the advertising is not false, fraudulent, deceptive or misleading. See Rule 7.3(a). The committee is concerned that some advertising concerning lawyer referral services and joint marketing arrangements are deceptive. As noted in LEO 910, statements which violate the Rules of Professional Conduct and which are used in advertisements by lawyer referral service would create automatic rules violations by the participating attorneys. The committee has opined the following practices are deceptive and misleading:
See also LEOs 910, 926, 1014, 1175, 1348, 1543.
The committee considered the question of whether it is misleading to the public for an attorney to advertise results obtained in a specific case or to advertise cumulative results obtained in more than one specific case, e.g., "We’ve collected millions for thousands," or "We’ve collected $30 million in 1996." The committee determined that it is misleading to the public for an attorney to advertise specific case results, whether individually or cumulatively, for two reasons;
An example will illustrate why information describing a specific case may result or a blanket statement of cumulative results may be entirely accurate, but nonetheless misleading. An attorney could accurately cite in advertising a verdict of one million dollars, yet the public would plainly be deceived if the verdict were obtained under circumstances in which the offer prior to trial had been two million dollars. The same advertisement would be similarly deceptive if the one million dollar verdict were obtained against an uncollectible defendant, under circumstances in which the case was lost as to a collectible co-defendant who had made a substantial offer prior to trial. More importantly, since no member of the public is likely to have a case in which the circumstances precisely duplicate the advertised verdict, the report of a specific case result not only fails to provide helpful information to the consumer, but is likely to mislead the consumer as to the result that will be obtained in their case.
An advertisement which includes a statement such as "we have obtained the largest jury verdict in the city" is inherently misleading and thus violates Rule 7.1(a). The reader of the advertisement does not know, nor can the advertisement fully reveal, the circumstances or context in which the firm obtained "the largest verdict in the city." For example, the verdict of judgement may have been by default or arose out of a stipulation because liability or damages were clear and uncontested. Another factual matter not disclosed by the advertisement may be that the judgment is uncollectible. This prohibition against advertising specific or cumulative results and the specifics or jury verdicts extends to the inclusion of such information in the body of any form of published communication, as defined in Rule 7.1(a). For example, incorporating or reprinting in a published communication a newspaper article which quotes a specific case result or verdict would be a violation of Rule 7.1(a). The committee has repeatedly opined that the use of statements or claims such as "the best lawyers," and "the biggest earnings," are self-laudatory and amount to comparative statements which cannot be factually substantiated, in violation of Rule 7.1(a)(3). (See also Comment 6 to Rule 7.1) See also LEOs 1229, 1443. LEOs 1297, 1321 are overruled to the extent that they are inconsistent with this opinion.
The committee addressed whether a lawyer can circumvent the prohibition against comparative statements with the use of client testimonials. For example, a lawyer’s television advertisement shows a former client making statements about the client’s satisfaction and about the quality of the lawyer’s services, using statements to the effect that the lawyer is "the best" and will get you "quick results." Rule 7.1(a)(3) prohibits statements comparing attorneys’ services, unless the comparison can be factually substantiated. The committee has previously opined that a lawyer’s advertising of specific case results is misleading. Thus, an attorney has clear guidance as to the impropriety of making certain statements in his advertising. Rule 8.4(a) states that an attorney shall not violate a disciplinary rule through the actions of another. Moreover, the language of the restriction in Rule 7.1 makes no qualification as to the maker of the regulated statements. To the contrary, the rule’s requirements are directed at any statement contained in the communication. Thus, there is no support in Virginia’s Rules of Professional Conduct for affording greater leeway to advertising statements made by clients than to those made by attorneys. The standard is the same in both instances. Applying that standard to this hypothetical, the client’s statements make a comparison ("the best") that cannot be factually substantiated and offer a guarantee of results ("quick"). If such improper statements are contained in the lawyer’s advertisement, the lawyer would be in violation of Rule 7.1. In further clarification, even statements of opinion by clients that contain comparative statements are not appropriate. This committee adopts the mixed approach, used in Pennsylvania, while prohibiting testimonials regarding results and/or comparisons, it does allow "soft endorsements." Philadelphia Ethics Opinion 91-17; Pennsylvania Bar Association Ethics Opinion 88-142. Examples of "soft endorsements" include statements such as the lawyer always returned phone calls and the attorney always appeared concerned. Id. In sum, the requirements for lawyer advertising are all intended for the protection of the public. The restrictions on advertising content are carefully chosen to avoid misleading the public as they make the important choice of whom to select for legal representation. This committee will not erode that protection where non-lawyers or their statements appear in the advertisements. Such a distinction would violate both the language of the pertinent disciplinary rule and the spirit behind it. Committee Opinion March 20, 2001 |
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