Lawyer using the slogan "We take the pain out of accidents."
FACTS
An attorney wishes to use the slogan "We take the pain out of accidents" in printed advertisements and on his firm letterhead. The inquiring attorney informs us that he has "already registered this phrase as a federal servicemark."
QUESTION
Do the Rules of Professional Conduct permit an attorney to use the slogan "We take the pain out of accidents" in printed advertisements and on his firm letterhead?
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 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
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ER 7.2. Advertising
(a) Subject to the requirements of ER 7.1 and ER 7.3, 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.[1]
ER 7.3. Direct Contact with Prospective Clients
(b) Subject to the requirements of ER 7.1 and ER 7.2, and paragraph (c) herein, a lawyer may initiate written communication, not involving personal or telephone contact, with persons known to need legal services of the kind provided by the lawyer in a particular matter, for the purpose of obtaining professional employment. Such written communication shall be clearly marked on the envelope and on the first page of the communication contained in the envelope, as follows:
ADVERTISING MATERIAL:
THIS COMMERCIAL SOLICITATION HAS NOT BEEN
APPROVED BY THE STATE BAR OF ARIZONA
Said notification shall be printed in red ink, in all capital letters, in type size at least double that used in the body of the communication. If the solicitation advertises representation on a contingent or "no recovery, no fee" basis, it shall also state that the client may be liable for costs and expenses.
(c) At the time of dissemination of such written communication, a copy shall be forwarded to the Clerk of the Arizona Supreme Court and the State Bar of Arizona at its Phoenix office. If a written communication identical in content is sent to two or more prospective clients, the lawyer may comply with this requirement by forwarding a single copy together with a list of the names and addresses of persons to whom the written communication was sent.
ER 7.5. Firm Names and Letterheads
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates ER 7.1. A trade name may not be used by a lawyer in private practice.
OPINION
Lawyer advertisements are commercial speech entitled to constitutional protection. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977); Shapero v. Kentucky Bar Association, ____ U.S.____, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988).[2] This constitutional protection does not apply, however, to commercial speech that is false, deceptive or misleading. Zauderer v. Office of to Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 638, 105 S. Ct. 2265, 2275, 85 L. Ed. 2d 652 (1985).
Printed advertisements and firm letterheads must comply with ER 7.1 and ER 7.3 of the Rules of Professional Conduct.[3] If a proposed slogan violates ER 7.1, its use in either format would be unethical.
The Rules of Professional Conduct do not expressly require that lawyer advertisements be dignified. Although former DR 2-102(A) required that advertisements be dignified, ER 7.1 does not. While the comments to ER 7.1 indicate that lawyer advertisements should be dignified, the comments to ER 7.2 warn that any such determination is a matter of subjective judgment. Furthermore, in Zauderer, the United States Supreme Court indicated that a "dignity requirement" may be unconstitutional:
More fundamentally, although the State undoubtedly has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State's desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights. Even if that were the case, we are unpersuaded that undignified behavior would tend to recur so often as to warrant a prophylactic rule.
Zauderer, 471 U.S. 626, 647-48, 105 S. Ct. 2265, 2280 (1985).
The Arizona Supreme Court echoed these policy considerations in Matter of Zang, 154 Ariz. 134, 741 P.2d 267 (1987). In Zang, the court stated:
Advertisements are likely to minimize the danger of violating ER 7.1 if they are designed to inform consumers of their rights and of the methods available to meet legal problems and crises; to inform the public of the availability and costs of services; or to convey accurate information relative to making informed, rational choices of counsel, including information about counsel's availability and areas of practice. * * * In the future, the bar should examine lawyers' advertisements to determine whether, taken as a whole, they are predominately informational or simply emotional, irrational sales pitches. While the later may not be prohibited by ER 7.1, they should be examined carefully to assure that they are neither false nor misleading. (Citations omitted.)
Zang, 154 Ariz. 134, 146, 741 P. 2d 267, 279 (1987). (Emphasis supplied.)
A slogan such as "We take the pain out of accidents" does not provide information on significant issues of the day or inform the public as to the availability, nature or price of legal services. Nor is it predominantly informational in nature. Rather, it is probably what Zang characterized as an "emotional, irrational sales pitch." As such, Zang indicates we should examine it carefully to determine if it is false or misleading.
The question presented is a close one. Although we feel that the slogan which the inquiring attorney wishes to utilize lacks dignity, we cannot say that it is false, deceptive or misleading. Read as a slogan, it does not contain a material misrepresentation of fact, and it is not likely to create an· unjustified expectation in the mind of the ordinary consumer about the results that a lawyer can achieve. It is certainly possible that some member of the public may read the slogan literally and believe that a lawyer can somehow alleviate the physical suffering caused by an accident. However, we believe that the test is whether a person of ordinary intelligence would reasonably read the slogan literally. We do not believe that a person of ordinary intelligence would do so. We believe that a reader of ordinary intelligence would understand that the proposed phrase is nothing more than a catchy slogan and that it is not literally true.[4]
A person of ordinary intelligence would not believe that a lawyer could literally "take the pain out of accidents." Therefore, we do not believe that, in the mind of the ordinary consumer, the slogan is likely to create an unjustified expectation.[5] Accordingly, we reluctantly conclude that the proposed slogan does not violate ER 7.1, even though it is lacking in dignity and does not provide useful information which will help an informed consumer to make rational choices.
A lawyer may have a constitutional right to use slogans which the members of this committee would not themselves use and which they would not encourage others to use. Although the phrase "We take the pain out of accidents" lacks informational content and is undignified, it is neither false nor misleading and, therefore, is probably constitutionally protected and not unethical.[6]
Although, under applicable constitutional standards, a lawyer may engage in certain types of conduct which may be protected even though undignified, we hope that all members of the Bar will strive to uphold the dignity of the profession and conform their conduct to the highest possible ethical standards, not the minimum constitutional standards.
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 proceedings.
©State Bar of Arizona 1989
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[1] ER 7.2 and ER 7.3 were amended, pursuant to Rule 28(b), Rules of the Supreme Court of Arizona, effective August 1, 1989.
[2] In Bates, the court noted the listener's substantial interest in the free flow of commercial speech. The court also noted society's interest in providing information the public on important issues, including the availability, nature and price of products and services.
[3] ER 7.3 is not directly relevant to this inquiry.
[4] Of course, if and to the extent the lawyer intends to imply, and a consumer reasonably believes, that the lawyer will provide services in a prompt, efficient manner, so as at least to help alleviate the natural stress and anxiety that is associated with trying to recover one's losses, it is certainly possible that, having engaged in this type of sloganeering, the lawyer may well be held to that standard if he or she does not deliver. Whether a slogan such as the one the inquiring lawyer wishes to utilize may ultimately prove to be false, deceptive or misleading in that sense is a matter beyond the scope of this opinion. Nothing in this opinion is intended in any way to absolve a lawyer from legal responsibility for such statements. However, on the limited facts available, we cannot say that, in the abstract, the slogan in question is inherently false, deceptive or misleading and therefore falls outside of the zone of constitutionally protected commercial speech.
[5] This conclusion is reinforced by the recent Arizona amendments to ER 7.3. ER 7.3(b) expressly requires that any written advertisements sent to a prospective client be clearly marked as such on both the envelope and the first page. The notification must be printed in red in capital letters and in type size at least double that used in the body of the communication. These requirements should help the ordinary consumer to understand that the statements contained in the material are advertising and should not be taken literally.
[6] For a contrary holding, see Philadelphia Bar Association Professional Guidance Committee Inquiry No. 87-28 (Nov. 23, 1987) (advertisement featuring the scales of justice and stating "tip the scales in your favor!" was held to be a violation of ER 7..lib]). (ABA/BNA Lawyer's Manual on Professional Conduct, Vol. 3, No. 25, p. 434, Jan. 6, 1988.)