2010 Formal Ethics Opinion 6

January 21, 2011

Advertising for Legal Employment in Non-practicing Areas
 

Opinion rules that a lawyer may place an advertisement for employment in practice areas in which the lawyer does not have experience only if the lawyer intends to provide competent representation either by promptly obtaining competence through study and investigation or by associating a lawyer who is competent in those particular areas of law. If, at the time the advertisement is placed, it is likely the lawyer will associate more experienced lawyers to handle the resulting cases, that fact should be disclosed to the public in the advertisement.

 

Inquiry #1:

 

Lawyer would like to advertise for legal employment in several areas of negligence law including products liability, pharmaceutical, and medical malpractice. Lawyer does not, however, have practice experience in these legal areas. For cases involving these areas of practice, Lawyer plans to associate another lawyer who is qualified in the particular area of law.

 

May Lawyer advertise for legal employment in an area of practice in which Lawyer lacks experience?

 

Opinion #1:

 

Yes, but only if Lawyer intends to promptly become competent in such representation by study and investigation in the advertised area of law or intends to associate an experienced lawyer to competently handle the resulting cases.

 

Lawyer advertising represents commercial speech protected as a constitutional right. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Such commercial expression serves not only the interests of lawyers, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. Id. at 561-62. The rights of lawyers to advertise, however, are not unlimited. Legal advertisements may not be false or misleading. See Rule 7.1.

 

Pursuant to Rule 7.1(a)(1), a communication is misleading if it contains a material misrepresentation of fact or omits a fact necessary to make the statement considered as a whole not materially misleading. For example, in RPC 217, the Ethics Committee determined that it was misleading for a law firm to include in its advertisements remote call forwarding telephone numbers under the names of towns in which the law firm did not have an office. The opinion provides that listing what appears to be a local telephone number in an advertisement circulated in communities where the law firm does not have an actual presence, without including an explanation in the advertisement that the number is not a local telephone number and that there is no law office in that community, will mislead readers as to the actual location of the offices.

 

To avoid misleading the public, lawyers should be competent, or intend to promptly obtain competence, in the areas of law in which they advertise. Rule 1.1 addresses the subject of lawyer competence:

 

A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

 

In advertising, lawyers should not claim to have experience in areas of law in which they lack experience. Such claims are false and misleading. Competence in particular areas of law primarily arises from experience. In addition to experience, lawyer competence may be gained from study and investigation. Rule 1.1 acknowledges that lawyers can obtain competence in a particular area of law by associating a lawyer experienced in that area of law to work with them in representing a client. When a member of the public sees a lawyer’s advertisement, however, that person could reasonably expect that the advertising lawyer has or will have, at the time of the representation, personally obtained the competence necessary to handle the legal matter that is the subject of the advertisement. If this is not the case, and the lawyer instead intends to associate another lawyer to provide the competent representation, members of the public could be misled by the advertisement. Thus, if at the time the advertisement is placed it is likely that the lawyer will later associate more experienced lawyers to handle the resulting cases, that fact should be disclosed to the public in the form of a disclaimer in the advertisement. See Co. Bar Assoc. Ethics Comm. Op. 76 (1987).

 

Previous ethics opinions have determined that an appropriate disclaimer may cure an otherwise misleading advertisement. See, e.g., 2003 FEO 3 (lawyer may advertise membership in organization with self-laudatory title, but when the membership information may create unjustified expectations, a disclaimer must be included in the advertisement); see also Rule 7.1(b) (communication by lawyer that contains dramatization depicting fictional situation is misleading unless it contains statement explaining that communication contains a dramatization and does not depict actual events or real persons). Likewise, an appropriate disclaimer will preclude a finding that Lawyer’s proposed advertisements are likely to mislead prospective clients. If, at the time an advertisement is placed, it is likely that Lawyer will associate a more experienced lawyer to handle the resulting cases, that fact must be disclosed to the public in a disclaimer in the advertisement.

 

Inquiry #2:

 

If Lawyer associates another law firm in connection with a legal matter, may Lawyer accept a portion of the legal fees?

 

Opinion #2:

 

Yes. Rule 1.5(e) allows for the division of a legal fee between lawyers who are not in the same firm. Lawyer may receive a portion of the legal fees associated with the referred matter so long as the client agrees to the arrangement in writing, the total fee is reasonable, and the fee division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation. Rule 1.5(e).

 

The assumption of joint responsibility is an alternative to a division of fees in proportion to the services performed. Comment [8] to Rule 1.5 explains that “[j]oint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.” Therefore, a lawyer who agrees to share legal fees must make reasonable efforts to ensure that the other lawyers who are parties to the arrangement comply with the ethics rules. See Rule 5.1. As stated in RPC 205, “whenever a lawyer accepts a fee for referring a case to another lawyer, the lawyer remains responsible for the competent and ethical handling of the matter.”

 

The ABA Committee on Ethics and Professional Responsibility has opined that joint responsibility does not require substantial services to be performed by the lawyer. ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 85-1514 (1985). However, joint responsibility does include the same financial and ethical responsibility and the same responsibility to ensure adequate representation and communication as one partner would have for another partner’s client in similar circumstances. Id.

 

Lawyer may receive a fee in proportion to the services he performs in the matter or he may receive a fee based on his assumption of joint responsibility for the representation. See Rule 1.5(e).

 

Inquiry #3:

 

If Lawyer is entitled to receive a portion of the legal fees, what amount/proportion of the legal fee is reasonable?

 

Opinion #3:

 

Apart from the requirements that the total fee be reasonable, that the client consent to the fee division, and that each law firm assume joint responsibility for the representation, the Ethics Committee declines to opine on the division of fees between lawyers or law firms.


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