Ethics in Legal Advertising•Governed by the South Carolina Rules of ProfessionalConduct (The Rules)•Monitored by Office of Disciplinary Counsel (ODC), an officewithin the Supreme Court of South Carolina, and by all of ourcompetitor lawyers who would love to report our violationsto ODC.•If you ever have a question, consult The Rules, thecomments to the Rules, and the Ethics Advisory Opinionsissued by the South Carolina Bar – and bring the issue to theattention of George or Patrick.
Rule 7.1: Communications ConcerningA Lawyers Services• A lawyer shall not make false, misleading, ordeceptive communications about the lawyeror the lawyers services. A communicationviolates this rule if it:
• (a) contains a material misrepresentation offact or law, or omits a fact necessary to makethe statement considered as a whole notmaterially misleading;
• (b) is likely to create an unjustified expectationabout results the lawyer can achieve, or statesor implies that the lawyer can achieve resultsby means that violate the Rules of ProfessionalConduct or other law;
• (c) compares the lawyer’s services with otherlawyers’ services, unless the comparison canbe factually substantiated;
• (d) contains a testimonial about, or endorsementof, the lawyer– (1) without identifying the fact that it is a testimonialor endorsement;– (2) for which payment has been made, withoutdisclosing that fact;– (3) which is not made by an actual client, withoutidentifying that fact; and– (4) which does not clearly and conspicuously statethat any result the endorsed lawyer or law firm mayachieve on behalf of one client in one matter does notnecessarily indicate similar results can be obtained forother clients.
• (e) contains a nickname, moniker, or tradename that implies an ability to obtain resultsin a matter.
Rule 7.2: Advertising• (a) All advertisements shall be predominatelyinformational such that, in both quantity andquality, the communication of factual informationrationally related to the need for and selection ofa lawyer predominates and the communicationincludes only a minimal amount of contentdesigned to attract attention to and createinterest in the communication.
• (b) A lawyer is responsible for the content of anyadvertisement or solicitation placed or disseminated bythe lawyer and has a duty to review the advertisementor solicitation prior to its dissemination to reasonablyensure its compliance with the Rules of ProfessionalConduct. The lawyer shall keep a copy or recording ofevery advertisement or communication for two (2)years after its last dissemination along with a record ofwhen and where it was disseminated.
• (d) Any communication made pursuant to thisRule shall include the name and officeaddress of at least one lawyer responsible forits content.
• (f) Every advertisement that containsinformation about the lawyers fee shalldisclose whether the client will be liable forany expenses in addition to the fee and, if thefee will be a percentage of the recovery,whether the percentage will be computedbefore deducting the expenses.
• (h) All advertisements shall disclose thegeographic location, by city or town, of theoffice in which the lawyer or lawyers who willactually perform the services advertisedprincipally practice law. If the office location isoutside a city or town, the county in which theoffice is located must be disclosed. A lawyerreferral service shall disclose the geographic areain which the lawyer practices when a referral ismade.
Rule 7.4: Communication OfFields Of Practice And Specialization• (b) A lawyer who is not certified as a specialist butwho concentrates in, limits his or her practice to, orwishes to announce a willingness to accept cases in aparticular field may so advertise or publicly state in anymanner otherwise permitted by these rules. To avoidconfusing or misleading the public and to protect theobjectives of the South Carolina certified specializationprogram, any such advertisement or statements shallbe strictly factual and shall not contain any form of thewords “certified,” “specialist,” “expert,” or “authority”except as permitted by Rule 7.4(d).
• When listing our office locations orannouncing how many offices we have, wemust disclose whether they are staffed orunstaffed. (Otherwise, just saying “we have 8offices” is misleading.)
• Always take the most conservative approachto what may be “misleading” or may “createunjustified expectations”. Wherever the line isbetween what is allowable under the rulesand what is not, we want to stay FAR withinthat line.
Question 1• Can we create series of advertisements thatshows George “Carolina Kamikaze” Sink’sbattle against the insurance companies? Whyor why not?
Answer• Rule 7.1(e) contains a nickname, moniker, ortrade name that implies an ability to obtainresults in a matter.• Rule 7.2(a) All advertisements shall bepredominately informational … and thecommunication includes only a minimal amountof content designed to attract attention to andcreate 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 totalamount of settlement or award. Client agreesto pay all costs and expenses advanced byAttorneys in connection with Client’s case, andsuch expenses will be subtracted from thetotal award, after attorneys fees arededucted. Each clients case is different andAttorney makes no guarantee of recovery.
Question 3• When we list our practice areas (i.e. autoaccident, personal injury, workerscompensation), what is a permissible way to tellclients that these are the types of cases that wehandle? What would be impermissible?
Answer• Permissible: “covering a broad range of casesincluding”; “accepting cases in the areas of”;“Our practice areas:”• Impermissible: “We specialize in”; “Withexpertise in”• Rule 7.4(b) shall not contain any form of thewords “certified,” “specialist,” “expert,” or“authority”
Question 4• Name two things that must be included inevery advertisement.
Answer1. The name and office address of at least onelawyer responsible for its content.2. The geographic location, by city or town, ofthe office in which the lawyer or lawyerswho will actually perform the services.
For More Information• http://www.sccourts.org/courtReg/index.cfm• http://www.scbar.org/MemberResources/EthicsAdvisoryOpinions.aspx