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.
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.
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.
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