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2010 Formal Ethics Opinion 9

July 23, 2010

Using Stock Photographs in Advertising


Opinion rules that a dramatization disclaimer is not required when using a stock photograph in an advertisement so long as, in the context of the advertisement, the stock photograph is not materially misleading.


Inquiry:


Are dramatization disclaimers required when using stock photographs in a print or video advertisement for legal services?


Opinion:


No. Rule 7.1, Communications Concerning a Lawyer's Services, sets forth the essential requirements for all advertising by lawyers. Rule 7.1(a) states that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. Rule 7.1(b) provides that a communication by a lawyer that contains a dramatization depicting a fictional situation is misleading unless it contains a conspicuous statement at the beginning and end of the communication "explaining that the communication contains a dramatization and does not depict actual events or real persons."


Dramatizations of fictional cases in video advertisements ("commercial dramatizations") are potentially misleading. See RPC 164. Therefore, such advertisements require the dramatization disclaimer. See Rule 7.1(b). "Stock photographs" are professional photographs of common places, events, or people that can be used and reused for advertising. Like commercial dramatizations, stock photographs do not depict actual events or actual clients. However, unlike commercial dramatizations, stock photographs, because they are static, do not have the same tendency to mislead a consumer of legal services. Unless in the context of the advertisement or marketing document, the stock photograph creates a material misrepresentation of fact, a stock photograph may be included in legal advertisement without a dramatization disclaimer. See Rule 7.1(a)(1).


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