Opinion 87-27
(December 1987)

Your recent draft of a proposed direct mail advertisement was presented to the Professional Guidance Committee at its meetings on November 16, 1987 and December 21, 1987. The following constitutes the opinion of the Committee on the proposed mailing.

The Disciplinary Rules promulgated under the Code of Professional Responsibility are effective in Pennsylvania, and will be so until April 1, 1988. At that time, the Model Rules of
Professional Conduct as adopted by the Supreme Court of Pennsylvania on October 16, 1987 will take effect. As such, this opinion will analyze your advertisement under both sets of Rules.

DR2-101A provides that:


No lawyer shall engage in, utilize or allow any form of advertising that is knowingly false, fraudulent or misleading.

DR2-105A provides that:


A lawyer shall not hold himself out publicly as, or imply that he is a recognized or certified specialist....

The rule has several exceptions which concern the areas of patent/copyright/admiralty attorneys and attorneys who practice in those fields of law where there exists a state certification as a specialist.


Model Rule 7.1 provides:


A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or

(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of the law. A lawyer shall not state that the lawyer is a specialist except as follows....

The rule then provides exceptions for patent/copyright/admiralty attorneys.


The first page of your letter refers to "business lawyers." As used here, this term allegedly describes other attorneys. However, within the context of your advertisement it becomes clear that you are also calling yourself a "business lawyer." Although there is nothing impermissible about indicating that your practice is limited to business law, referring to yourself (in this case by implication) as a "business lawyer" suggests that you are a specialist in this area. This is further compounded by your use of the words "training," "expert" and "trained" in both of the first and second paragraphs. The Committee felt that these representations could violate both DR2-105A and Model Rule 7.4, as well as DR2-101A and Model Rule 7.1a.


The fourth paragraph of your letter refers to your "Business Plan" as "unique" and "revolutionary." These terms are
totally subjective and consequently may be misleading under DR2-l0lA and Model Rules 7.la & b. Furthermore, in 1985, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued a comprehensive opinion on Advertising (#85-170) which is still considered timely today. In that opinion, it was concluded that, "Any descriptive information contained in lawyer advertising must be stated in objective, verifiable terms. In general, the attorney must disclose enough information to avoid being misleading. Thus, subjective terms such as 'experienced', 'expert', 'highly qualified' or 'competent' are not permissible".

Your advertisement runs counter to that opinion.


In the opening paragraphs, you compare your firm's "Business Plan" with the work done by other law firms in the business area. In addition, you draw conclusions regarding the training and/or experience of other lawyers and make claims about the difference of your plan's approach. These are not factually substantiated within your advertisement, and do not appear to be subject to verification. As such, these comparisons violate Rule 7.lc and DR2-l0lA.


You claim that the "Business Plan" is "designed to avoid crisis, problems and expense before they happen." On page two of the letter, you state the "Business Plan" gives "audit protection," by providing guidance in record keeping and documents which "is your best protection in case of audit." You continue, stating the "Business Plan" will "reduce your audit exposure by determining in advance your sensitive audit areas and creating a plan to protect you and your business before the IRS comes knocking at your door." This is a factual conclusion which arguably comprises only a part of the "best protection against an audit." The ethical issue presented is that your letter might create unjustified expectations about the result a client will get if the "Business Plan" is used. You cannot guarantee that a business will not have a crisis or problems with the Internal Revenue Service, yet this is implied. In addition, use of the terms "protection" in "sensitive areas" might imply some sort of plan to cover up activity that violates the tax law. As such, violations of both DR2-l0lA and Model Rule 7.lb are present.


On page three, you refer to the "Business Plan's" Estate and Financial Planning and imply that it gives "well thought out" and "intelligent" assistance in this area. These terms are too subjective for verification, and thus are misleading, violating DR2-l0lA and Rule 7.la, as well as the direction suggested by the Pennsylvania Bar Association Opinion.


Your letter does not clearly define what physical thing the "Business Plan" is. Is it a group of computer software packages for law office management? Is it a written treatise which carefully delves into legal areas which affect the closely-held corporation, or does it not exist except as an approach of your law firm, so that clients would not be purchasing the "Business Plan," but rather simply hiring the attorneys in your firm to handle their legal work? To the corporate executive the term has a specific meaning. Are you using it to mean the same thing? Whatever the answer to this question, clearly, enough definition of the term is not given, as would be required to avoid being misleading under DR2-l0lA and Model Rule 7.la. Since the advertisement seems to imply that the "Business Plan" is separate from the work of your law firm, should it not be, the approach of the advertisement in its inception is misleading and ethically impermissible.


An additional potential concern in this "Business Plan" centers on its functions of loss management consulting and tax advising. Such functions can be handled by both attorneys as well as management consultants and accountants. In this respect, should these areas now or in the future be handled by non-attorneys on a sub-contracting basis with your firm, your payment to them of part of your fee would constitute the splitting of fees with non-attorneys, which violates both DR3-102A, and Model Rule 5.4a. Furthermore, additional violations of DR3-103A, DR5-107C, and Model Rule 5.4b & d might be present should you have a partnership for the "Business Plan" with non-lawyers. Admittedly, these are concerns which are only tangential to your present request. However, by way of information on these issues, we are including a copy of past Professional Guidance Opinions 87-14 and 87-21.


It is important to stress that the Committee raised no objections to your use of a direct mail targeted solicitation. Under the present Code, such a method of advertisement is permissible as constitutionally protected commercial free speech, as long as it is truthful and the factual representations are subject to objective verification. In this regard, you are referred to the Pennsylvania Bar Association Opinion 86-170 which comes to the same conclusion. However, the issue of direct mail solicitation has been reserved in Model Rule 7.3 (effective April 1, 1988 in Pennsylvania) and is presently under review in a case before the United States Supreme Court. Accordingly, the long range permissibility and parameters of direct mail solicitation are open issues.

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.