Opinion 88-18
(May 1988)

Your recent inquiry regarding the propriety of a television advertisement which uses dramatization was presented to the Professional Guidance Committee at its meeting on May 16, 1988. This letter will constitute the formal opinion of the Committee.

Rule of Professional Conduct 7.1 provides in part:

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;...

Rule 7.2 provides in part:

(a) Subject to the requirements of Rule 7.1, a lawyer may advertise services through the media, such as telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communications not within the purview of Rule 7.3.

(b) A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used. This record shall include the name of at least one lawyer responsible for its content.

Preliminarily, you must comply with the record keeping requirements of Rule 7.2 as noted above. This is true for any for of advertisement you use. Regarding the specific text of the two scripts you presented for review, the only objection raised was to the implication in the scripts that the members of your firm are "good lawyers." This term is not able to be objectively verified. As such, in our view, it would be in violation of Rule 7.1a and should be deleted.

It was noted that reference was made to 25 years of experience in the personal injury field. This is perfectly acceptable, provided it is indeed true.

The larger issue raised by your request is that of the television advertisement which uses dramatization. Currently we are unaware of any prohibition of dramatization in Pennsylvania, although there is a New Jersey case pending before the Third Circuit Court of Appeals (Felmeister & Issacs), which is challenging New Jersey's prohibition against television advertisements which use dramatization. Should the court uphold New Jersey's prohibition, it may also affect Pennsylvania.

Finally, your firm letterhead indicates that you have several attorneys who are licensed to practice in New Jersey. Although your advertisement refers only to your Pennsylvania office, and even though it will be broadcast from Pennsylvania, it will obviously be seen by numerous individuals in New Jersey.

In light of the dramatization prohibition in New Jersey, the Committee strongly recommends that you obtain clearance on the use of advertisement from the appropriate body in New Jersey prior to its broadcast.
   

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.