Ethics Opinon 1977-4

September 26, 1977

SUBJECT: LAWYER ADVERTISING

I
QUESTION PRESENTED

In view of the recent United State Supreme Court decision, dealing with lawyer advertising, what are the permissible limits of such advertising?

II
SUMMARY

In spite of the United States Supreme Court decision, hereinafter cited, there are limitations to the type of advertising that an attorney may do, as more fully set forth hereinafter.

III
AUTHORITIES CONSIDERED

In view of the decision of the United States Supreme Court contained in the case of Bates, et al, vs. the State Bar of Arizona and decided June 27, 1977, the only authorities considered were the present rules contained in the Canon of Ethics and the said case of Bates vs. State Bar of Arizona.

It is the opinion of this subcommittee that the said Canon of Ethics are in effect only to the extent that they do no conflict with the said United States Supreme Court decision and, therefore, the Bar membership will find it advisable to review first the said decision and in any areas in which the decision has not reached, the said member should then resort to the present Canons of Ethics for rules on this matter.

IV
ANALYSIS

In modifying the rules that were locally in effect as of the date of the said United States Supreme Court decision, the following provisions are considered to have been provided in said opinion:

Attorneys may advertise services but are restricted to advertising only routine services, this being the only type that lend themselves to advertising, such services including the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name and other routine similar services.

In the advertising of the above-mentioned services, the attorney may do such advertising only in dignified printed ads and shall be subject to the following restrictions in such advertising:

1. An attorney may not make any representation as to the quality of legal services to be provided. Such claims probably are not susceptible to precise measurement or verification and may well be deceptive or misleading to the person, or even false.

2. An attorney may not, in advertising, include self-laudatory comments, either directly or indirectly, as these also may be deceptive and misleading. Such laudatory comments would include, but not be limited to, representations as to positions previously held, either by appointment or election.

3. An attorney may not make any in-person solicitation of clients either directly or through agents or "runners." Activities of that kind may well pose dangers of overreaching misrepresentation.

4. An attorney may not advertise through radio or television ads.

5. An attorney may not do any advertising that is false, deceptive or in any way misleading.

6. Precise fees must be provided in all advertisements together with the exact extent of the services to be provided therefor.

7. The attorney must do the necessary work at only the advertised price.

8. If there is to be any variation in the price or the services rendered, as set out in the advertising, a warning of disclaimer must be included in the advertisement so as not to mislead the person.

9. If an attorney's advertisement is likely to be disseminated outside of the jurisdiction in which said attorney's main office is located, the advertisement must show the areas in which such attorney is admitted to practice.

In the above cited United States Supreme Court case, the Court specifically provided that they did not hold that advertising by attorneys could not be regulated in any way by local Bar associations. The Court specifically indicated that such regulation is proper so long as it does not conflict with the Court's holdings. Therefore, it is the opinion of this committee that the above provisions of the said decision are controlling as to all attorneys in the United States; but, except as specifically dealt with by the United States Supreme Court, the local rules regarding advertising still prevail.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.