Opinion Number: 1990-09
Review of lawyer brochure--applicable rules (Code of Professional Responsibility) governing advertising quoted
QUESTION: The attorney has presented a firm brochure for review and approval.
ANSWER: The brochure presented is permissible pursuant to the provisions of Temporary Disciplinary Rules 2-101, 2-102, 2- 103, and 2-104 which state as follows:
“DR 2-101 A lawyer shall not make or cause to be made a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading 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; or
(C) Compares the quality of the lawyer's services with the quality of other lawyer's services, except as provided in Temporary DR 2-104.
(D) Communicates the certification of the lawyer by a certifying organization except as provided in Temporary DR 2-112.”
Temporary Disciplinary Rule 2-102 provides:
“DR 2-102 Any lawyer who advertises concerning legal services shall comply with the following:
(A) Subject to the requirements of Temporary DR 2-101, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor displays, radio, television, or written communication not involving solicitation as defined in Temporary DR 2- 103.
(B) A true copy or recording of any such advertisement shall be delivered or mailed to the Office of the General Counsel of the Alabama State Bar at its then current headquarters within three (3) days after the date on which any such advertisement is first disseminated; the contemplated duration thereof and the identity of the publisher or broadcaster of such advertisement, either within the advertisement or by separate communication accompanying said advertisement, shall be stated. Also, a copy or recording of any such advertisement shall be kept by the lawyer responsible for its content as provided hereinafter by Temporary DR 2-102(D), for six (6) years after its last dissemination.
(C) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of any advertisement or written communication permitted by this rule and may pay the usual charges of a not-for- profit lawyer referral service.
(D) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.
(E) No communication concerning a lawyer's services shall be published or broadcast unless it contains in legible and/or audible language the following: 'No representation is made about the quality of the legal services to be performed or the expertise of the lawyer performing such services.' (Amended effective January 6, 1986)
(F) If fees are stated in the advertisement, the lawyer and/or law firm advertising must perform the advertised services at the advertised fee, and the failure of the lawyer and/or law firm advertising to perform an advertised service at the advertised fee shall be prima facie evidence of misleading advertising and deceptive practices. The lawyer and/ or law firm advertising shall be bound to perform the advertised services for the advertised fee and expenses for a period of not less than sixty (60) days following the date of the last publication or broadcast."
Temporary Disciplinary Rule 2-103 provides:
"DR 2-103 A lawyer may not solicit nor cause to be solicited on his behalf professional employment from a prospective client, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term 'solicit' includes contact in person or by telephone."
Temporary Disciplinary Rule 2-104 provides:
"DR 2-104 A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is a specialist except as follows: (A) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation 'patent attorney' or a substantially similar designation.
(B) A lawyer engaged in admiralty practice may use the designation 'admiralty,' 'proctor in admiralty' or a substantially similar designation."
In addition, the United States Supreme Court decision in Shapero v. The Kentucky State Bar has been accepted by the Disciplinary Commission as allowing advertisements to be directed toward targeted groups or individuals, provided that the advertisements are otherwise in conformity with the Temporary Disciplinary Rules cited hereinabove. Accordingly, the brochure presented, which does appear to be in conformity with those Rules, is permissible.