Opinion 89-21
(July 1989)

You have asked the Professional Guidance Committee for advice on the propriety of a proposed form of advertising and use of a trade name. Via television advertising, you propose to give advice to the public in the area of medical malpractice and to represent individuals who have legitimate claims in this area. You also wish to use the trade name of "Med Law Associates." You also intend to use the terms "experienced lawyers" and "medical malpractice" in the advertisement.

Attorney advertising is governed by Rules 7.1 through 7.5 of the Rules of Professional Conduct.

Rule 7.1 provides that:

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 state 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.

Rule 7.2 provides that:

(a) Subject to the requirements of Rule 7.1, a lawyer may advertise services through public media, such as a 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.

(Rule 7.2(c) does not apply to this situation at hand.)

Rule 7.4 provides that:

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

(The rule then provides for the exception of patent, trademark and admiralty attorneys).


Finally, Rule 7.5(a) provides in part that:

A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government, government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1. ...

Clearly, use of television advertisement is permitted under Rule 7.2(a).

(a). However, you should maintain the records required under 7.2(b). There is nothing inherently impermissible about the use of the term "medical malpractice" providing that your specific ad is truthful arid use of the term is not false or misleading in the ad's context as provided by Rule 7.la. You may also provide information about medical malpractice providing it complies with these same guidelines.


The Committee does feel that your use of the term "experienced" would be violative of Rule 7.la unless it is correctly qualified. An attorney with one year's experience could be inexperienced to one client while another could view such an attorney as experienced. The term by itself is subjective and should not be used alone. It is subject to misinterpretation and should be coupled with clarifying information such as "ten years experience" or "five years experience," whatever is truthful and accurate in the specific situation.

Although use of trade names is specifically permitted under Rule 7.5, use of the trade name "Med Law Associates" would violate both Rules 7.1 and 7.4. There was a consensus that the term implied a specialty in medical malpractice cases and also that there was a medical doctor or medical personnel on staff in your law office. This consensus would not be changed by your having an outside medical person under contract to provide litigation review and expert testimony services. The same objection is present with use of the name "Medical Malpractice Clinic" as the word "clinic", often a medical term (particularly when coupled with "medical") could be subject to misinterpretation regarding both your staff and an implication of specialty. It was agreed that use of the term "Medical Malpractice Associates" as a trade name would be permissible.

Finally, your letterhead indicates that you have a New Jersey office. Your television advertising will obviously been seen in New Jersey which has its own rules regarding advertising. Last year, New Jersey's prohibition against the use of dramatization in television advertising came under attack in a Third Circuit case, however that matter was dismissed on procedural grounds, the substantive law question never being addressed. (Felmeister v. Office of Attorney Ethics, CA3, No. 87-5524, 8/31/88). The Committee strongly urges you to obtain an opinion on your advertising from the appropriate reviewing body in New Jersey. Your request should be addressed to Israel D. Dubin, Esquire, Secretary, Supreme Court of New Jersey Committee on Attorney Advertising, Richard J. Hughes Justice Center CN037, Trenton, New Jersey, 08625. The phone number is 609-292-0694.

     

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.