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.