Ethics Opinion Articles - NC State Bar Journal

Misleading Communications: The Bad, the Ugly, and the ???

By Alice Neece Mine

This is the second article in a series on lawyer advertising. The last article provided an overview of the constitutional constraints on the regulation of the commercial speech of lawyers. It was observed that the line between the permissible and the impermissible can be difficult to ascertain. This article considers advertising that has crossed the line from truthful (or at least credible) to misleading.

Rule 7.1(a) sets forth the prime directive for all legal advertising:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.

A communication that “contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading” violates the rule. Rule 7.1(a)(1).

To provide examples of legal advertising that crossed the line by either material misrepresentation or omission of a necessary fact, it is appropriate to go directly to the well—the annals of the State Bar's Grievance Committee and the Disciplinary Hearing Commission—for cases in which a lawyer received professional discipline for the content of his or her legal advertisement. Here are a few examples of communications that the Grievance Committee or the Disciplinary Hearing Commission (DHC) found misleading and the discipline that the offending lawyer received.

The Bad

A television advertisement in which a poker player cheats, thereby implying that an insurance company will engage in dishonest practices when resolving insurance claims. The lawyers with the firm each received a private reprimand.1
A newspaper advertisement wherein the lawyer “GUARANTEE[D]” that “you will pay NO CLOSING COSTS! When you Finance Through the Mortgage Lawyer.” The Grievance Committee reprimanded the lawyer, noting in the order that “even [the lawyer] admitted in [his] response…that buyers in some instances will pay closing costs.”
A back cover phone book advertisement that declared, “FOR OVER 40 YEARS, WE'VE BEEN PUTTING EXPERIENCE, KNOWLEDGE, AND SKILLS TO WORK FOR PEOPLE LIKE YOU.” The firm had not been in existence for 40 years and none of the lawyers with the firm had 40 years of experience. The Grievance Committee found the statement to be misleading because it omitted the fact that “40 YEARS” referred to combined legal experience.2 The principal of the firm received an admonition.
A newspaper advertisement that listed a toll-free number for the firm and four cities where the firm presumably had offices. The ad was run in the local paper in each of the cities. The firm did not have offices in any of the cities. The lawyer was reprimanded.3

The Ugly

A statement in a direct mail letter claiming that “[a]bsent a legitimate excuse, we require the officer to be present at the trial setting and to possess the proper documentation for your case.” The Grievance Committee admonished the lawyer for this misleading communication because a lawyer cannot require a police officer to be present at a trial; only the judge can require a police officer to be present at the trial.
In the same direct mail letter, the statement, “[w]e know the judges, the police, and the DA's [sic] and have good working relations with each of them.” The committee found that the statement implied, untruthfully and inappropriately, that the lawyers had some special relationship with these officials that could be used to help a prospective client get a good result in his or her case.
A postcard4 advertisement depicting two lawyers standing before a judge. One lawyer says, “Your Honor, we have photos, taped conversations, AND a signed contract.” The judge responds, “Give it up, counselor. You can't win against ABC Law Firm.” The Grievance Committee found that the depiction was misleading because it implied that the firm could not lose a case even in the face of substantial evidence to the contrary.
The same postcard indicated that businesses and individuals had sought the firm's advice “on all matters of law and we've delivered.” In the response to the grievance, the principal of the firm admitted that the firm had not handled “every conceivable matter.” Because the statement implied exactly that, the Grievance Committee found it to be a false or misleading statement. All of the lawyers in the firm received an admonition.

The ???

Letterhead stating that the lawyer is “Published in Federal Reports, 3d Series” and a website that says that the lawyer is “one of the elite percentage of attorneys to be published in Federal Law Reports.” Although the DHC found that the misleading language was intentional, the lawyer received an admonition because the violation was minor. (This case is on appeal and may, indeed, be published in North Carolina Court of Appeal Reports.)

Conclusions

Is there a pattern here from which conclusions can be drawn? One conclusion is that violations of the advertising rules typically do not lead to the most severe forms of discipline.5 If there is proportionality in our system of self-regulation, that is probably appropriate. Another conclusion is that promising what you cannot deliver and bending the truth to inflate your credentials won't pay—not in the long run. The most important conclusion may be that, if you are going to advertise, do it with the same integrity that is expected of you in the rest of your practice.

Endnotes

1. Private reprimands are no longer issued. The comparable discipline now is an admonition which, if issued by the Grievance Committee, is not public. 27 N.C.A.C. 1B, Rule .0123(a)(1).

2. Formal Ethics Opinion 2004-7, adopted after this disciplinary action, holds that it is misleading to advertise the number of years of experience of the lawyers with a firm without clarifying that the number refers to the combined legal experience of all of the lawyers with the firm.

3. RPC 217 rules that a local or remote call forwarding telephone number may not be included in an advertisement for legal services disseminated in a community where the law firm has neither an office nor a lawyer present in the community unless an explanation is included in the advertisement.

4. The postcard in question was an advertisement and not sent to a person known to be in need of legal representation in a particular matter (a/k/a targeted direct mail). Pursuant to Rule 7.3, postcards may not be used for targeted direct mail letters.

5. By “most severe forms of discipline,” I refer to censure, suspension, and disbarment. This conclusion is not meant to diminish the importance of the reprimand which is defined in the State Bar rules as follows:

a written form of discipline more serious than an admonition issued in cases in which a defendant has violated one or more provisions of the Rules of Professional Conduct and has caused harm or potential harm to a client, the administration of justice, the profession, or a member of the public, but the misconduct does not require a censure.