Attorney advertisements should not
I am an attorney who is trying to develop more business. Fortunately, I know a number of people who are considered celebrities. Can I run an ad with a picture of myself and my celebrity friends in the newspapers and on our website and other locations?
The question is a sad sign of the times of where the legal profession is going. More and more, law is a business, but the professional side cannot be forgotten. Advertising is a good thing for both lawyers and clients. But, at times, classless advertising injures the professional nature of practicing law to everyone's detriment. I prosecuted the last advertising case in Pennsylvania in 1977 when I was assistant disciplinary counsel before the famous Supreme Court decision allowing lawyers to advertise.
Whether the advertisement is classless or an excellent advertisement doesn't make a difference if it doesn't comply with the Rules of Professional Conduct. The appropriate rule to initially look at is Rule 7.1, which is the general advertising rule that prohibits false or misleading communication about the lawyer and the lawyer's services. Under Rule 7.1, there is a material misrepresentation if the communication contains a misrepresentation of material facts or omits a fact. There is also, under the comment, a misrepresentation if the advertisement creates unjustifiable expectations.
Under Rule 7.2, there are specific prohibitions, one of which, under Rule 7.2(d), prohibits an advertisement or public communication that contains an endorsement by a celebrity or public figure.
Comment 7 to Rule 7.2 discusses endorsements:
"Paragraphs (d) and (e) require truthfulness in any advertising in which an endorsement of a lawyer or law firm is made. The prohibition against endorsement by a celebrity or public figure is consistent with the purpose of Rule 7.1 to avoid the creation of unjustified expectations of a particular legal result on the part of a prospective client."
The problem with the ad is twofold. By implication, the advertisement might suggest these celebrity figures are endorsing whatever the lawyer is doing. That could be negated by language in the ad, but then what would be the purpose of the ad? Second, even if these celebrity figures were clients, it still cannot necessarily be a client endorsement, because that also creates an unjustifiable expectation. Further, if the lawyer paid the celebrities to appear in the ad, it would violate Rule 7.2(e), which prohibits paid endorsements unless they are disclosed in the advertisement.
There may also be issues of attorney-client relationship and confidentiality under Rule 1.6. If some of these celebrity figures are clients, the advertisement could violate confidentiality to some extent, unless there was a consent by all. Although the names of clients are usually not confidential under traditional attorney-client rules, under Rule 1.6, anything pertaining to representation could be considered confidential, particularly if the clients don't want anyone to know they sought a lawyer's advice.
There is at least one Pennsylvania Bar Association opinion, 2008-1, that prohibits a similar type of advertisement because the committee felt it would violate the rule against endorsements. The committee also had some concern that this might violate confidentiality.
The better practice, if one is advertising, is to have an ad setting forth one's qualifications and years at the bar and the nature of one's practice. There is no need for razzle dazzle. In this case, the celebrity ads may well cross the line and perhaps that type of advertisement should be reconsidered.
Firm letterhead should only include the names of true partners and shareholders.
I am a lawyer with several associates working for me and they are doing an excellent job. They would like their names on the firm letterhead and I would like to put their names on it in recognition of their excellent service. Can I do so?
One cannot put names of associates in the name of the firm on the letterhead unless they are true partners or true equity shareowners in the firm. Rule of Professional Conduct 7.5 is fairly clear:
"Lawyers shall not state or imply that they practice in a partnership or other organization unless that is the fact."
This rule came about in the early 1980s. The Office of Disciplinary Counsel at that time had experienced a number of complaints from clients upset that lawyers were advertising themselves as A, B & C law practice when, in fact, A, B & C really had their separate law practices but shared the same suite. Clients were coming to what they thought was a law firm and really getting a sole practitioner.
The Office of Disciplinary Counsel thought that was misleading and sent a general letter to the bar in the early 1980s. Rule 7.5(d) was then adopted, making it clear that this kind of conduct would not be allowed.
Therefore, lawyers who are in the same suite, even while sharing referrals, cannot hold themselves out as a partnership or as shareholders in a corporate law firm unless they are, in fact. Comment 2 to Rule 7.5 is very clear:
"With regard to Paragraph (d), lawyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, 'Smith & Jones,' for that title suggests they are practicing law together in a firm."
It is clear this would be a misrepresentation. In fact, some people do not want to go to a sole practitioner. Some clients are afraid a sole practitioner would not be as readily available to move their case without the backup a law firm might have with other partners or associates who could pick up the file. Also, some clients are concerned that if something happened to the lawyer, there would be no one else to take over the file.
The bottom line is one can't mislead and hold oneself out as a partner or shareholder by including in the letterhead names of lawyers who are not partners or shareholders.
Some lawyers have gotten around the prohibition by giving their associates a small percentage in the firm. Some lawyers have given their associates a 1 percent equity interest or partnership interest. Assuming that would pass muster under Pennsylvania partnership law or Pennsylvania corporation law, these associates would be considered partners in the firm or equity shareholders, even if at a very minimal level. There is an argument that it can be considered misleading. But if a lawyer does that for associates who are in the firm already, it would appear that isn't misleading.
In conclusion, putting a lawyer's name in the name of the law firm is not allowed unless the lawyer has a role in the law firm in terms of equity or partnership interest. Obviously, a law firm can list associates. But on the letterhead itself, all names must be true partners or have a true equity interest.
Further, lawyers can create professional liability issues if they are sole practitioners holding themselves out as a partnership.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.