LEO: Advertising and Solicitation: Improper LE Op. 1321
Advertising and Solicitation: Improper Use of
Language in Advertisement.
February 27, 1990
You have asked the Committee to consider the propriety of an attorney's
advertisement in a local newspaper which states in part that "a conflict
of interest between a lawyer and local expert witnesses such as doctors
and other professionals make a fair battle impossible," and that the
attorney "knows personal injury so well that the state supreme court has
upheld his cases even when other attorneys and insurance companies said it
couldn't be done."
The appropriate and controlling Disciplinary Rule is DR:2-101(A) which
provides that a lawyer shall not, on behalf of himself or any other lawyer
affiliated with him or his firm, use or participate in the use of any form
of public communication if such communication contains a false, fraudulent,
misleading, or deceptive statement or claim.
The Committee has previously opined that because of the individual nature
of a legal problem, statements in an advertisement which are not based on
factual assertions are improper. Statements containing generalized
predictions of outcomes may tend to be deceptive or misleading and produce
unrealistic expectations. Ethical Consideration 2-10 [ EC:2-10] provides
in part that information based on past performance or prediction of future
outcomes is deceptive because it ignores important, distinctive variables
through which all legal matters derive their individuality. Only factual
assertions, and not opinions, should be made and communications addressed
to undertaking any legal action should always indicate the provisions of
such undertaking and should disclose the impossibility of assuring any
particular result. Not only should such communication be truthful, but its
meaning must be capable of being understood by the reasonably prudent
layperson. The Committee believes that the statement "a conflict of
interest between a lawyer and local expert witnesses such as doctors and
other professionals make a fair battle impossible," has the potential to
mislead since the reader is not given any factual basis on which the
statement was predicated and it presumes that all lawyers would have a
conflict with any local professionals.
Furthermore, the statement which implies special recognition by the state
supreme court of the lawyer's knowledge or expertise in the field of
personal injury law is likewise improper. Ethical Consideration 2-10 also
cautions that "[a]dvertisements or other claims that convey an impression
that the ingenuity of the lawyer rather than the justice of the claim is
determinative are similarly likely to be deceptive."
The Committee has earlier opined that advertising through which a lawyer
seeks business by use of extravagant, or self-laudatory, statements or
appeals to fears and emotions could mislead the general public.
Furthermore, all lawyers should remain vigilantly attentive to prevent
deceptive publicity that would mislead the layperson and cause distrust of
the law and lawyers, and undermine public confidence in the legal system. (
See EC:2-11 and LE Op. 1297) The Committee believes that the
statements contained in the advertisement in question do not serve to
inform the public of the availability of competent, independent legal
counsel nor does the public benefit from advertising marked by statements
without factual basis, excesses in content, volume, scope, or which unduly
emphasizes unrepresentative biographical information.
Finally, the Committee directs your attention to the requirements of DR:
1-103 regarding an attorney's obligation to report to the appropriate
professional regulation authority information that another lawyer has
committed a violation of the Disciplinary Rules which raises a substantial
question as to that lawyer's fitness to practice law.
Committee Opinion February 27, 1990
See also LE Op. 1425.