85-09: Advertising

11/1985

Affiliation of in-state and out-of-state of attorneys for the purpose of advertising is permissible as long as the advertising is not false or misleading.

FACTS

X, an attorney admitted to the Arizona Bar, and O, an out-of-state attorney not licensed in Arizona, have published an advertisement in a general circulation Arizona newspaper. The advertisement, which includes a drawing of an intrauterine device, reads as follows:

DALKON SHIELD

USERS

The Dalkon Shield IUD has been alleged to have caused numerous medical problems, including pelvic infections, infertility, hysterectomies, septic abortions, birth defects, miscarriages, ectopic pregnancies, and unwanted pregnancies.

For those women who still have the Dalkon Shield, go to your doctor to remove it and A.H. Robins Co. will pay all medical expenses regarding the removal.

If you have used a Dalkon Shield and have suffered any of the above injuries, call us. We have a great number of these cases. You can help us, and we will give you any information we have.

A.H. Robins has just set up a $165,000,000 reserve fund to compensate future injury claims due to the Dalkon Shield.

LAW OFFICES OF

(______________, California)

-and-

(Phoenix, Arizona)

(602/____ - _____)

QUESTIONS

1. May an attorney publish a newspaper advertisement which is directed toward a specific group of individuals who may require legal assistance?

2. May an Arizona attorney affiliate with an out-of-state attorney for the purpose of advertising?

ETHICAL RULES INVOLVED

ER 5.5. Unauthorized Practice of Law

A lawyer shall not:

(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

ER 7.1. Communications Concerning a Lawyer's Services

A lawyer shall not make 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

ER 7.2. Advertising

(a) Subject to the requirements of ER 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communication not involving solicitation as defined in ER 7.3. * * *

ER 7.3. Direct Contact With Prospective Clients

A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship by mail, in person, or otherwise, when a motive for the lawyer's doing so is the lawyer's pecuniary gain. The term “solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.

PRELIMINARY COMMENT

The Statement of Jurisdictional Policies governing the State Bar of Arizona's Committee on Rules of Professional Conduct provides in part:

"4. The Committee will not render opinions involving the questioned ethical propriety of past or continuing conduct of a member of the State Bar upon the request of another individual Arizona attorney or law firm or of a non-member of the State Bar. Such opinions will be rendered only when requested by the Board of Governors, the Arizona Disciplinary Board, another Committee, or the Executive Director of the State Bar; a Local Administrative Committee; the Committee on Examinations and Admissions; an Arizona county or other local bar association; or a member of the Arizona judiciary (state or federal) or of an administrative tribunal (state or federal) before whom the questioned conduct of the member has occurred.”

In this case, the President of the State Bar has requested that an opinion be issued in connection with this matter. Accordingly, we construe such request as a request by the Board of Governors and, therefore, within our jurisdiction.

OPINION

ER 7.2 specifically permits the advertising of lawyers' services in newspapers, subject to the requirement of ER 7.1 that "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.” Based upon the information provided to the Committee, there is no reason to believe that the substantive information concerning the IUD or A.H. Robins Co. is false or misleading; likewise, this does not appear to be a case in which material information has been omitted with respect to those subjects. See ER 7.1(a).

Prior to the February 1, 1985, effective date of the Arizona Rules of Professional Conduct (the “Rules"), the legal profession was governed by the Arizona Code of Professional Responsibility (the "Code"). The Code required that all advertisements be presented in a “dignified" manner. See DR 2-101(B). When the Rules were adopted by the Arizona Supreme Court, the requirement that advertisements be dignified was deleted from the ER's. While the comments to ER 7.1 indicate that all communications should be dignified, the comments to ER 7.2 remind us that questions of taste are subjective and speculative, and caution that the bar should not impede the flow of information by assuming that it can “forecast” the type of information the public considers relevant. ER 7.2 expressly authorizes newspaper advertising so long as the communication is not false or misleading. Based on the information available, it appears that, insofar as the advertisement relates to the IUD or A.H. Robins, the test is met in this case.

ER 7.3 prohibits solicitation for pecuniary gain by direct contact with prospective clients. The rules distinguish between solicitation and advertising and the comments to ER 7.3 discuss the distinction:

“Advertising makes it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct personal persuasion that may overwhelm the client's judgment.”

"The use of general advertising to transmit information from lawyer to prospective client, rather than direct private contact, will help to assure that the information flows cleanly as well as freely. Advertising is out in public view, thus subject to scrutiny by those who know the lawyer. This informal review is itself likely to help guard against statements and claims that might constitute false or misleading communication, in violation of ER 7.1. Direct, private communications from a lawyer to a prospective client are not subject to such third-person scrutiny and consequently are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading."

Inasmuch as the Dalkon Shield advertisement was published in a general circulation newspaper, and was directed at Dalkon Shield users generally, the advertisement does not constitute solicitation as defined in ER 7.3. Assuming that the advertisement complies with the requirements of ER 7.1, the first question presented must be answered in the affirmative.¹

The second question presented concerns the affiliation of in-state and out-of-state attorneys for the purpose of advertising. The Committee has consistently taken the position that in-state attorneys and out-of-state attorneys may form partnerships or other associations provided that the jurisdictional limitations of the involved attorneys are explicitly pointed out in letterheads and other permissible listings. See our Opinions Nos. 82-21, 80-8, 77-8 and 76-8. While the cited opinions were issued under the Code, the language of the Code (DR 2-102[C]) is substantially similar to the applicable Rule (ER 7.5[d]):

Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

Furthermore, an Arizona attorney may enter into a partnership or other association with attorneys admitted in other jurisdictions “as long as the partners and associates only practice law in the jurisdictions in which they are admitted." See our Opinion No. 80-8.

___________________

¹ The Committee is without jurisdiction to consider the constitutional aspects of. this issue, but notes the recent United States Supreme Court case of Zauderer v. Office of Disciplinary Counsel of the Ohio Supreme Court, __ U.S. __, 105 S.Ct. 2265, 53 U.S.L.W. 4587 (May 28, 1985). In Zauderer, a lawyer's illustrated newspaper advertisement relating to potential legal claims arising from use of a particular intrauterine device was held to be commercial speech deserving protection under the First Amendment. However, the advertisement was held to be ethically improper on other grounds, not relevant here.

The Rules do not specifically address whether in-state and out-of-state attorneys can advertise together without specifying in the advertisement the jurisdiction(s) in which the named lawyers are admitted to practice. However, ER 7.1 prohibits misleading advertising, and if a lawyer admitted in another jurisdiction is well-known, as in this case, then the use of his name without clearly noting the jurisdictional limitation on his practice may create the false impression that he is admitted to practice law in the jurisdiction where the advertisement is published. Hazard and Hodes, The Law of Lawyering, A Handbook on the Model Rules of Professional Conduct, 538 (1985).

In this case, the advertisement designates O's office as being in California and X's office as being in Arizona. The advertisement does not indicate whether O is or is not admitted to practice in Arizona. Although the advertisement is carefully worded so that it does not directly offer the attorneys' services or suggest their employment, one may fairly infer that that is the purpose of placing the ad. As previously noted, O is a well-known attorney with a national reputation and there is every reason to believe that Arizona residents will respond to the advertisement anticipating his involvement in the case. In order for the advertisement not to be misleading, O must be admitted to practice law in Arizona or the jurisdictional limitations on O's practice should be clearly indicated. For O to practice with X or to give advice to Arizona residents who respond to the advertisement, he must be admitted in Arizona. See ER 5.5 which prohibits the unauthorized practice of law and the aiding of another in the unauthorized practice of law.

In summary, it is the Committee's opinion that the affiliation of in-state and out-of-state attorneys for the purpose of advertising is permissible as long as the advertisement is not false or misleading and does not aid or encourage the unauthorized practice of law in this state by an individual not licensed to practice in Arizona. In order for the advertisement in this case not to be false or misleading, and to avoid encouraging the unauthorized practice of law, the jurisdictional limitations on O's right to practice law should be clearly stated.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rule changes, a different conclusion may be appropriate.