Formal Advisory Opinion No. 92-2
Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 92-2
State Bar of Georgia
Issued by the Supreme Court of Georgia
On July 30, 1992
Formal Advisory Opinion No. 92-2
For certain existing Formal Advisory Opinions that were issued by the Supreme Court of Georgia, it is the opinion of the Formal Advisory Opinion Board that the substance and/or the conclusion reached under the Standards, ECs and/or DRs has changed under the Georgia Rules of Professional Conduct. The Formal Advisory Opinion Board has redrafted those opinions. The redrafted opinions include an interpretation of the same issue addressed in the original opinion and reference the Georgia Rules of Professional Conduct. The Formal Advisory Opinion Board will treat the redrafted opinions like new opinions, and as such, the redrafted opinions will be processed and published in compliance with Bar Rule 4-403(c). The members of the State Bar of Georgia will be notified if a new opinion replaces an original opinion in the Georgia Bar Journal and on the State Bar of Georgia's website at gabar.org. Following, are the original opinions as issued by the Supreme Court of Georgia.
Ethical propriety of a lawyer advertising for legal business with the intention of referring a majority of that business out to other lawyers without disclosing that intent in the advertisement.
It is ethically improper for a lawyer to advertise for legal business with the intention of referring a majority of that business out to other lawyers without disclosing that intent in the advertisement and without complying with the disciplinary standards of conduct applicable to lawyer referral services.
Correspondent seeks ethical advice for a practicing attorney who advertises legal services, but whose ads do not disclose that a majority of the responding callers will be referred to other lawyers. The issue is whether the failure to include information about the lawyers referral practices in the ad is misleading in violation of the State Bar of Georgia Standards of Conduct and Directory Rules.
Standard 5 of Rule 4-102, governing advertising of legal services, prohibits a lawyer from making "any false, fraudulent, deceptive, or misleading communication about the lawyer or the lawyer's services." A communication is false or misleading if it "[c]ontains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading," Standard 5(A)(1).
The advertisement of legal services is protected commercial speech under the First Amendment. Bates v. State Bar of Arizona, 433 U.S. 350(1977). Commercial speech ". . . serves to inform the public of the availability, nature, and prices of products and services. . . In short, such speech serves individual and societal interests in assuring informed and reliable decision-making. Id. at364. Thus, the Court has held that truthful ads including areas of practice which did not conform to the bar's approved list were informative and misleading, and could not be restricted by the state bar. In re R.M.J., 455 U.S. 191 (1982).
Although actually or inherently misleading advertisements may be prohibited, potentially misleading ads cannot be prohibited if the information in the ad can be presented in a way that is not deceiving. Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, ___U.S.____, 110 S.Ct. 2281, 2287-2289 (1990). Requiring additional information so as to clarify a potentially misleading communication does not infringe on the attorney's First Amendment rights. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985).
The Ethical Considerations (EC's) balance the lawyer's First Amendment rights with the consumer's interest in accurate information." Advertisements ... should be formulated to convey only information that is necessary to make an appropriate selection ... that is capable of being accurately stated in an advertisement without tending to deceive or mislead." EC-8. "Distortions or omissions ... [are] wholly inappropriate in lawyer advertising. The public benefit derived from advertising depends upon the usefulness of the information provided." EC-9. Accordingly, Standards 5 through 13 assure communications about legal services which are accurate, complete and useful to potential clients. See Directory Rule 3-102, EC10.
A true statement which omits relevant information is as misleading as a false statement. So, for example, when contingency fees are mentioned in the communication, the fees must be explained. Standard 5. The Standards prohibit unsubstantiated claims of quality or comparisons of service because such unproven claims cannot provide the consumer with useful information. Standard 5.
The Standards evince a policy of full disclosure, enabling the client to investigate the attorney(s) and the services offered. Any advertisement must be clearly marked as an ad, and the responsible attorney's name must be included. (Standards 5, 6) Attorneys can practice under one name only, and law firms practicing under a trade name must include names of practicing attorneys. The firm's trade name cannot imply connections to organizations with which it has no connection. (Standard 9) An attorney is prohibited from implying associations with other attorneys when an association does not exist. Correspondingly, a lawyer must disclose professional associations which do exist. (Standard 10) These disclosure requirements assure that the public receives complete information on which to base decisions.
Similarly, other jurisdictions have required disclosure of attorney names and professional associations in the advertisement of either legal services or referral services. A group of attorneys and law firms in the Washington, D.C. area planned to create a private lawyer referral service. The referral service's advertising campaign was to be handled by a corporation entitled "The Litigation Group." Ads would state that lawyers in the group were willing to represent clients in personal injury matters. The person answering the phone calls generated by the ad would refer the caller to one of the member law firms or lawyers.
The Virginia State Bar Standing Committee on Legal Ethics found the name misleading because it implied the entity was a law firm, rather than simply a referral service. The Committee required the ad include a disclaimer explaining that "The Litigation Group" was not a law firm. Virginia State Bar Standing Committee on Legal Ethics, Opinion 1029, 2/1/88.
The Maryland State Bar Association Committee on Ethics was presented with facts identical to those presented in Virginia. The Maryland Committee also required additional information in the ad to indicate the group was not a law firm or single entity providing legal services. Maryland State Bar Association Committee on Ethics, Opinion 88-65, 2/24/88.
Similarly, an opinion by the New York Bar Association prohibited an attorney from using an advertising service which published ads for generic legal services. Ads for legal services were required to include the names and addresses of participating lawyers and disclose the relationship between the lawyers. New York Bar Association, Opinion 597, 1/23/89.
The situations presented to the Virginia, Maryland and New York committees are analogous to the facts presented here. The advertiser in all these cases refers a majority of the business generated by the ad, without disclosure. The ad here does not disclose any association with other attorneys.
The advertisement at issue conveys only the offer of legal services by the advertising attorney and no other service or attorney. The ad does not accurately reflect the attorney's business. The ad conveys incomplete information regarding referrals, and the omitted information is important to those clients selecting an attorney rather than an attorney referral service.
Furthermore, the attorney making the referrals may be circumventing the regulations governing lawyer referral services. See, DR 1-102. Attorneys may subscribe to and accept referrals from a "a bona fide lawyer referral service operated by an organization authorized by law and qualified to do business in this state; provided, however, such organization has filed with the State Disciplinary Board at least annually, a report showing its terms, its subscription charges, agreements with counsel, the number of lawyers participating, and the names and addresses of lawyers participating in the service." Standard 13(A)(B); See also, DR 2-103(B)(C). These regulations help clients select competent counsel. If the attorney is not operating a bona fide lawyer referral service in accordance with the Standards, the client is deprived of all of this information. The attorneys accepting the referrals also violate Standard 13(A)(B), DR 2-10! 3(B)(C), DR 1-102 by participating in the illicit service and paying for the referrals.
Assuming that the advertisements at issue offer only the advertising attorney's services and that the attorney accepts cases from the responding callers, the ad is not false or inherently misleading. However, where a majority of the responding callers are referred out, this becomes a lawyer referral service. The Standards require disclosure of the referral service as well as compliance with the Standards applicable to referral services.
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