Ethics in Legal Advertising • Governed by the South Carolina Rules of Professional Conduct (The Rules) • Monitored by Office of Disciplinary Counsel (ODC), an office within the Supreme Court of South Carolina, and by all of our competitor lawyers who would love to report our violations to ODC. • If you ever have a question, consult The Rules, the comments to the Rules, and the Ethics Advisory Opinions issued by the South Carolina Bar – and bring the issue to the attention of George or Patrick.
Transcript
Ethics in Legal Advertising
•Governed by the South Carolina Rules of Professional Conduct (The Rules)•Monitored by Office of Disciplinary Counsel (ODC), an office within the Supreme Court of South Carolina, and by all of our competitor lawyers who would love to report our violations to ODC. •If you ever have a question, consult The Rules, the comments to the Rules, and the Ethics Advisory Opinions issued by the South Carolina Bar – and bring the issue to the attention of George or Patrick.
Rule 7.1: Communications Concerning A Lawyer's Services
• A lawyer shall not make false, misleading, or deceptive communications about the lawyer or the lawyer's services. A communication violates this rule if it:
• (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
• (b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;
• (c) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated;
• (d) contains a testimonial about, or endorsement of, the lawyer– (1) without identifying the fact that it is a testimonial or
endorsement;– (2) for which payment has been made, without disclosing
that fact;– (3) which is not made by an actual client, without
identifying that fact; and– (4) which does not clearly and conspicuously state that
any result the endorsed lawyer or law firm may achieve on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients.
• (e) contains a nickname, moniker, or trade name that implies an ability to obtain results in a matter.
Rule 7.2: Advertising
• (a) All advertisements shall be predominately informational such that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of a lawyer predominates and the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication.
• (b) A lawyer is responsible for the content of any advertisement or solicitation placed or disseminated by the lawyer and has a duty to review the advertisement or solicitation prior to its dissemination to reasonably ensure its compliance with the Rules of Professional Conduct. The lawyer shall keep a copy or recording of every advertisement or communication for two (2) years after its last dissemination along with a record of when and where it was disseminated.
• (d) Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer responsible for its content.
• (f) Every advertisement that contains information about the lawyer's fee shall disclose whether the client will be liable for any expenses in addition to the fee and, if the fee will be a percentage of the recovery, whether the percentage will be computed before deducting the expenses.
• (h) All advertisements shall disclose the geographic location, by city or town, of the office in which the lawyer or lawyers who will actually perform the services advertised principally practice law. If the office location is outside a city or town, the county in which the office is located must be disclosed. A lawyer referral service shall disclose the geographic area in which the lawyer practices when a referral is made.
Rule 7.4: Communication OfFields Of Practice And Specialization
• (b) A lawyer who is not certified as a specialist but who concentrates in, limits his or her practice to, or wishes to announce a willingness to accept cases in a particular field may so advertise or publicly state in any manner otherwise permitted by these rules. To avoid confusing or misleading the public and to protect the objectives of the South Carolina certified specialization program, any such advertisement or statements shall be strictly factual and shall not contain any form of the words “certified,” “specialist,” “expert,” or “authority” except as permitted by Rule 7.4(d).
• When listing our office locations or announcing how many offices we have, we must disclose whether they are staffed or unstaffed. (Otherwise, just saying “we have 8 offices” is misleading.)
• Always take the most conservative approach to what may be “misleading” or may “create unjustified expectations”. Wherever the line is between what is allowable under the rules and what is not, we want to stay FAR within that line.
Ethics Quiz
Question 1
• Can we create series of advertisements that shows George “Carolina Kamikaze” Sink’s battle against the insurance companies? Why or why not?
Answer
• Rule 7.1(e) contains a nickname, moniker, or trade name that implies an ability to obtain results in a matter.
• Rule 7.2(a) All advertisements shall be predominately informational … and the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication.
Question 2: Part 1
• Can we say in our phone book advertisements “No fee charged unless you recover”?
Question 2: Part 2
• If we say “No fee charged unless you recover?”, what else must we say?
Answer
• Attorney fees will be deducted from the total amount of settlement or award. Client agrees to pay all costs and expenses advanced by Attorneys in connection with Client’s case, and such expenses will be subtracted from the total award, after attorney's fees are deducted. Each client's case is different and Attorney makes no guarantee of recovery.
Question 3
• When we list our practice areas (i.e. auto accident, personal injury, workers compensation), what is a permissible way to tell clients that these are the types of cases that we handle? What would be impermissible?
Answer
• Permissible: “covering a broad range of cases including”; “accepting cases in the areas of”; “Our practice areas:”
