Opinion 95-12
(April l995)
 
You have asked the Committee to opine on the ethical correctness of several advertisements you have running or wish to run in various regional telephone directories. There are three ads in question.
 
The first ad is headed with Medical Malpractice and shows two surgeons working over some sort of service that looks like an operating room table. The ad has your office's name, address and phone number, says No recovery No fee, Over 25 years of Legal Representation and then lists twelve different specific types of cases than can arise in the personal injury context.
 
The second ad is headed with Serious Injury? You Need an Attorney Experienced in Handling Accident/Injury Claims! and depicts a patient on a stretcher at an airport with an ambulance flashing lights. It lists the same 12 areas as on the first ad, also references 25 Years of Legal Representation, has No Recovery No Fee and uses a suburban area code and phone number, although the address shown is in Philadelphia. In addition, it contains the statement Immediate Arrangements for Medical Care (No Health Insurance Necessary).
 
The third ad is headed with We'll help Make Life Simple Again and pictures a young girl, perhaps two or three years old, holding a stuffed animal. The ad lists some of the same as well as new areas of cases from the other ads, and then says, Big City Experience, Small Town Service. Friendly, Professional, Effective. House Calls and Hospital Visits Over 30 Years of Legal Representation. It then has the inquirer's name, telephone number with a suburban area code, the firm address in Philadelphia and Free Initial Consultation. No Recovery No Fee.
 
Effective May 7, 1994 the Pennsylvania Supreme Court adopted dramatic changes to the Rules regarding attorney advertising, greatly expanding the scope of regulation over such ads. Many of these Rules are implicated in your inquiry.
 
Rule 7.1a
 
Two of the ads claim 25 years experience, while the third claims 30. Rule 7.1a is violated without having further explanation of the experience. Are the years an aggregate of all the years of experience of each attorney in the firm? Does it refer to the years of experience of the named partner in the firm? Furthermore, is it 25 or 30 years? The ads should be consistent, and need to clarify for whom the years of experience is listed, and if that experience is in personal injury or simply the practice of law.
 
The advertisement that includes the promise to make immediate arrangements for medical care also violates Rule 7.1a. No attorney can absolutely state that he or she can make arrangements for immediate medical care without health insurance in every serious injury case. Perhaps there is no available source for recovery in a particular case that will be able to pay for the treatment. Perhaps medical care required will far exceed any available fund for recovery, if for instance the injured party is responsible for the accident. Finally, it must be recognized that most people who search the telephone directories for attorneys do not understand the complexity of legal proceedings and may simply be looking for medical care unrelated to an accident. In addition, an attorney must be careful not to personally guarantee payment of medical bills as opposed to issuing a letter of protection, as such a guarantee could violate Rule 1.8e (Financial assistance to a client).
 
Rule 7.1c&d
 
The advertisement that says Big City Experience, Small Town Service violates Rule 7.1c. It uses subjective terminology and implies that the service provided by the firm is somehow better, more friendly and more caring (i.e. small town) than other city attorneys. There is no objective way to verify such a claim and it should not be made.
 
Rule 7.2q
 
This rule prohibits the use of portrayal of clients by non-clients, a re-enactment of scene or events, or the use of dramatization without a disclosure to this effect. Each of your ads as presently composed violates this rule. The first and second ads obviously have actors simulating an event, and as such must have a specific disclosure indicating that it is a dramatization. The third ad, picturing the young girl, is also problematic. If the child is meant to be a client and if the child is an actor then this must be disclosed. If the child is an actual or former client, then you must obtain an appropriate adult's permission to use her picture in your ad, for if you do not you will be violating attorney client confidentiality under Rule 1.6 by reproducing her face in phone directories that are distributed to thousands of people. If the child is not meant to be a client then the ad would seem to be saying that hiring your firm will make a client's life, complicated by a personal injury, simple again. This is a very subjective claim, not subject to objective verification, and as such might very well violate Rule 7.1d.
 
Rule 7.2h1
 
This rule requires that if an ad states No Recovery/No Fee that if the client is nevertheless responsible for costs even if there is no recovery that this needs to be disclosed in the ad. Should this be the case with your firm such a disclosure needs to be added to all the ads. The Committee notes that under Rule 7.2h2 advertised fees in yearly publications must be honored for a period of one year. This means that even if your firm requires clients to pay costs in only some types of cases you take, such a disclosure would again have to be made in the ads.
 
Rule 7.2i
 
This rule requires that an advertisement disclose the geographic location of the lawyer's primary office. All three submitted ads do this, and it is particularly important as two of the three ads have a suburban area code and phone number. Having the office address prevents potential clients looking in regional directories from being misled into thinking that they are dealing with a suburban as opposed to a Philadelphia law firm.
 
Rule 7.2k
 
The committee cautions that careful attention must be paid to comply with Rule 7.2k. All the areas of law listed in the ads must be those that the inquirer handles from intake through trial. Of special note is the category noted in two of the ads, Insurance Bad Faith. If the inquirer means to limit such cases to cases where there are injuries and a bad faith refusal to settle or pay bills in that context then it should say so in the ad.

There might also be an issue of proper compensation to the minor client for the use of her picture which also would have to be negotiated with an appropriate adult.

   

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.