Attorney's proposed newspaper advertising seeking representative plaintiff to challenge constitutionality of city's parking ordinance.

FACTS

Inquiring attorney proposes to place a want ad in the newspaper seeking a representative plaintiff willing to challenge the constitutionality of certain parking ordinances of City X. Inquiring attorney seeks such a plaintiff in order to satisfy the standing and case or controversy requirements of A.R.S. Section 12-1831. The want ad would:

1. Ask whether the reader has received a parking ticket of a certain type.

2. State that the ordinance pursuant to which the ticket was issued might be constitutionally invalid.

3. Indicate the inquiring attorney's desire to challenge the ordinance.

4. Provide his name and phone number.

QUESTION

Is the proposed advertisement ethically permissible?

ETHICAL RULES INVOLVED

ER 7.1. Communications Concerning a Lawyer's Services

A lawyer shall not make a false or misleading communication about the lawyer or about 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 . . . newspaper . . . 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 .... by letter or other writing, or by other communication directed to·a specific recipient, but does not include... 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.

COMMITTEE'S STATEMENT OF JURISDICTIONAL POLICIES

“6. The Committee's jurisdiction being limited to the resolution of questions of professional ethics, it will not render opinions:

(a) On pure questions of law, or on mixed questions of law and fact;"

OPINION

ER 7.3 defines “soliciting" as communication to a “specific recipient". The definition excludes “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."

The proposed want ad, therefore, is not “solicitation" prohibited by ER 7.3.

That being the case, this situation is controlled by ER 7.1 which allows advertising so long as it is not false or misleading.

Evaluating the proposed advertisement against the criteria set forth in ER 7.1, the representations in the proposed advertising are:

1. The ordinance pursuant to which certain parking tickets have been issued might be constitutionally invalid.

2. Inquiring attorney desires to challenge the ordinance.

3. Inquiring attorney's name and phone number.

The statement that the ordinance might be constitutionally invalid is a tentative statement of law, which would fall within what the U.S. Supreme Court, in Zauderer v. Office of Disciplinary Counsel, _____ U.S. ______, 105 S. Ct. 2265 (1985), calls “advice and information regarding specific legal problems.”

The Supreme Court held in Zauderer that neither the fear that lawyers might "stir up litigation", nor any of several other justifications proposed by the Ohio Disciplinary Counsel, would justify precluding the inclusion of “advice and information regarding specific legal problems" in advertisements. The ethical propriety of the advertisement in question depends, then, only on whether it involves misrepresentations prohibited by ER 7.1.

Since representation No. 1, above, is a tentative statement of law, the question arises whether this Committee, under its Statement of Jurisdictional Policies, can give the inquiring attorney any guidance as to whether this statement of law is a misrepresentation.

We note that one of the foundations for the decision in Zauderer was the availability (in the Supreme Court's judgment) of adequate means of regulation of ads containing legal advice. This Committee is a part of that system of regulation. The system contemplated by the Zauderer decision will work less well if we decline any guidance at all on this inquiry.

We note, however, that although the question whether the legal statement is false or misleading is a question of fact, the only way to answer that question is to arrive at a conclusion as to what the law is so that the statement can be compared with it.

The proper role of this Committee is to establish guidelines and criteria by which the members of the Bar may guide their ethical conduct. It is not appropriate that this Committee become a "preclearing house” for every proposed legal advertisement. Nor are the opinions of this Committee on questions of law entitled to any more weight than the legal opinions of any member of the Bar.

Balancing these considerations, we, take jurisdiction to the limited extent of providing the inquiring attorney guidelines for the exercise of his own ethical judgment in this matter, but decline to decide the ultimate question of whether this legal statement is false or misleading, as outside our jurisdiction.

We suggest the following guidelines to assist in determining whether a statement of “advice and information regarding a specific legal problem" is false or misleading. We do not intend to suggest that these guidelines are in any way exhaustive:

1. If the statement is tentative, it is less likely to be false and misleading.

2. A non-tentative statement of law could be considered accurate if the statement can be substantiated by an existing statute or the holding of an existing case having precedential effect in the jurisdiction.

3. A tentative statement of law could be considered accurate if supportable by a good faith argument for the extension or modification of existing law. Whether an argument is a “good faith” argument may be in part assessed by whether there are existing decisions in support of the extension or modification, though not necessarily in the jurisdiction.

4. The issue of accuracy is independent of the effect the statement may have on the advertiser's audience, i.e., even though some member of the audience may be lead to initiate meritless litigation against innocent defendants, the accuracy of the statement must be evaluated independently of that. (See Zauderer, supra, at footnote 12).

The next question is: Whether the statement "I desire to challenge this ordinance", or words to that effect, is a misrepresentation in view of the omission of additional facts such as the responsibility for costs, attorney's fees and client involvement that the reader who becomes a client may have to assume?

The Court in Zauderer emphasized that omissions of information may be judged by a different standard than that applied to affirmative statements.

“* * * appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, ‘warning(s) or disclaimer(s) might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception.’

“We do not suggest that disclosure requirements do not implicate the advertiser's First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.

“The State’s application to appellant of the requirement that an attorney advertising his availability on a contingent-fee basis disclose that clients will have to pay costs even if their lawsuits are unsuccessful (assuming that to be the case) easily passes muster under this standard. Appellant's advertisement informed the public that 'if there is no recovery, no legal fees are owed by our clients'. The advertisement makes no mention of the distinction between 'legal fees' and 'costs’ and to a layman not aware of the meaning of these terms of art, the advertisement would suggest that employing appellant would be a no-lose proposition in that his representation in a losing cause would come entirely free of charge. The assumption that substantial numbers of potential clients would be so misled is hardly a speculative one: it is a commonplace that members of the public are often unaware of the technical meanings of such terms as 'fees' and 'costs' -- terms that, in ordinary usage, might well be virtually interchangeable. When the possibility of deception is as self-evident as it is in this case, we need not require the State to 'conduct a survey of the . . . public before it (may) determine that the (advertisement) had a tendency to mislead.’" (105 S. Ct. at 2282, 2283).

This portion of the Zauderer opinion suggests the following guideline:

If the statement involves the use of terms which have a technical meaning, or if the statement itself has a technical meaning, then it may be properly concluded that the possibility of deception is increased and a greater degree of completeness is required to avoid misrepresentation by omission.

In this case, the inquiring attorney's motive for the proposed advertisement is to obtain a plaintiff who can satisfy standing and case or controversy requirements. The moving force behind the advertisement seems to be the attorney's desire to challenge the ordinance and solution of the attorney's problems with respect to standing and case or controversy. The intent is not necessarily to benefit the particular client being sought, since unstated cost and fee requirements and even time expenditures will probably exceed any benefit to one individual parking violator. Given these technical ramifications, the proposed statement "I desire to challenge the ordinance," or words to that effect, has an evident possibility for deception. The layman is given too little information about what the inquiring attorney intends with respect to legal fees, costs, and client responsibility in the proposed attorney-client relationship.

We therefore hold that the proposed want ad would violate ER 7.1(a) by omission of necessary facts, and we answer the question presented in the negative.

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.

© State Bar of Arizona 1986