State Bar of Arizona Ethics Opinions

01-93: Advertising

This is a formal opinion of the Advertising Committee of the State Bar of Arizona; this is not an opinion of the Committee on the Rules of Professional Conduct. However, this opinion should be filed with the Formal Opinions of the Ethics Committee because the Advertising Committee was disbanded in January, 1994 and issued only three opinions. Opinion No. 93-12 was renumbered. That opinion is now Opinion No. 01-93. Opinion No. 93-12 no longer exists.

A California corporation that functions as an advertising agency (Agency) specializing in group public media advertising programs for attorneys. Apparently the economics of media advertising for attorneys are such that, increasingly, independent lawyers who wish to so advertise have a strong incentive to pool resources and participate in a form of group or cooperative advertising. Agency operates in forty-four states, with approximately 490 law-firm participants, and received the American Bar Association's 1992 Dignity in Lawyer Advertising Award. Several Arizona attorneys who wish to participate in one of Agency's programs have requested this Committee's advisory opinion as to whether the program complies with Arizona's revised rules on lawyer advertising. The Committee has a videotape of the proposed television commercial and a copy of the Advertising Services Agreement between Agency and participating attorneys as well as other information Agency supplied.

The proposed thirty-second commercial in Arizona advertises an "Injury Helpline" with a 1-800 number. The advertisement features a succession of "ordinary people," including an automobile mechanic, a cowboy and an office worker, who each read a sentence or a sentence fragment which forms the script of the commercial. During most of the commercial, the words "INJURY HELPLINE 1-800-526-0005" appear across the bottom of the screen in large print. In the first two scenes the words, "A Group of Independent Law Firms has Paid for this Advertisement," appear in large print at the bottom of the screen. In the next scene, the words "Not a Lawyer Referral Service" appear in large print in the same place.

The first individual on screen begins by saying, "I'm not an attorney but I do know how to find one." A second person then appears and says, "That can mean a lot when you've been seriously injured in a car or motorcycle accident." A third individual says, "When you need help to protect your legal rights," and another person appears and continues the thought, "Finding an attorney should be easy--not another hassle." The last person appearing in this segment says, "So call the injury helpline and discover how easy it is to talk to an attorney near you who can explain your legal rights in plain English." The conclusion of the advertisement lists the names and office addresses of all participating attorneys and the geographical area each serves. They are labeled as "Participating independent law firms and attorneys." In addition, the following language appears:

Call the 800 number to be placed in touch with the law firm responding to calls from your geographical area. Geographical areas served listed under firm's office location.

This language, however, is difficult to read due to its relatively small size and the short period of time that it is on the screen, together with the names of the participating attorneys and firms. While this language appears, a narrator says, "The Injury Helpline. When you need legal help, not hassles." The last person then appears and says, "A personal injury attorney is just a phone call away."

Agency plans to market the proposed television advertisement to attorneys in the Phoenix area who have indicated a willingness to do plaintiffs' personal injury work. By paying a fee which covers part of the cost of the advertising, the participating attorney purchases the exclusive right to referrals of clients within certain zip code geographical areas. Although Agency does not require it, participating attorneys tend to purchase the rights to areas in which their office is located or close thereto. We are informed that all current participating attorneys in Arizona in fact maintain their office in or next to the area they serve.[1]A participating lawyer pays only for advertising costs in the form of an initial advertisement preparation fee and an annual advertising fee. Neither the number of calls received nor clients the lawyer decides to represent affects the fee paid to Agency.[2]

In addition to the financial arrangements, Agency imposes only the following relevant requirements on attorneys participating in its program:

1) The attorney must "accept all telephone responses forwarded by [Agency]" and "provide at no charge the first consultation with any person so responding to the advertisements";

2) The attorney must warrant that he or she is "licensed to practice law in the State where the commercials are to be aired, is in good standing, is not currently the subject of disciplinary proceedings, and practices in the personal injury field of law";

3) The attorney must "carry Professional Liability Insurance including contractually assumed liability coverage, with minimum limits of $250,000.00"; and

4) The attorney must have "viewed and pre-screened" the proposed television commercials and must "approve[ ]. . .and consent[ ] to their broadcast."

Agency does not investigate the lawyer's background or qualifications in any other way.

Most significantly, Agency specifies to its participating attorneys that it "is acting solely as an advertising agency and answering service on behalf of" the lawyer and "provides no screening of responses" to the commercials. In other words, except as already described, Agency in no way screens either the participating lawyers nor the callers who respond to the advertisements and whose names and numbers are passed on to the corresponding attorney. Agency exercises no discretion in choosing which clients are to be contacted by which attorneys. There is apparently no information available to Agency from which it determines which prospective clients are to be passed on to which attorneys other than the client's zip code.[3]The participating attorneys simply purchase the rights to the names and telephone numbers of callers from certain geographical area(s) as defined by zip codes provided by the callers. It does not appear that Agency follows up to determine whether the services provided by the attorney to the client were satisfactory nor does Agency provide a means by which consumer complaints against attorneys who contact clients through the service can be resolved. Agency simply takes the caller's name, telephone number and zip code and provides it to the corresponding participating attorney who then telephones the caller.

The ethical propriety of participating in the proposed television commercial involves the following issues which will be addressed in the indicated order:

1. Does the advertising program constitute a "lawyer referral service" as that phrase is used in ER 7.1(r)(3)? If so, since this program is not "operated, sponsored, or approved by a bar association", is participation in such a program prohibited by ER 7.1(r)(3)?

2. Does the fee arrangement between participating attorneys and Agency for Agency's design, production and broadcast of the advertisement violate the prohibition in ER 7.1(j) of a lawyer giving anything of value to a person for recommending the lawyer's services?

3. Is the advertisement "false or misleading" within the meaning of ER 7.1(a)?

4. Does the advertisement compare the services of the participating lawyers to the services of other lawyers in a manner that cannot be factually substantiated in violation of ER 7.1(a)(3)?

5. Is the advertisement "predominantly informational" for the purposes of ER 7.1(b), and are the televised dramatizations "designed to further the informational purposes of legal advertising" as required under ER 7.1(q)?

1. Does the advertising program constitute a "lawyer referral service" as that phrase is used in ER 7.1(r)(3)? If so, since this program is not "operated, sponsored, or approved by a bar association", is participation in such a program prohibited by ER 7.1(r)(3)?

A. We will consider the second of these questions first, namely, if the group advertising program operated by Agency is a "lawyer referral service" within the meaning of ER 7.1(r)(3), are Arizona attorneys precluded from participating?

ER 7.1(r) provides in relevant part:

A lawyer . . . may be recommended . . . by, or may cooperate with, one of the following offices or organizations that promote the use of his services . . . if there is no interference with the exercise of independent professional judgment in behalf of his client:

. . . . .

(3) a lawyer referral service operated, sponsored, or approved by a bar association. A lawyer shall not accept referrals from a lawyer referral service unless the service:

. . . . .

(E) neither represents nor implies to the public that this service is operated, endorsed, sponsored or approved by the state bar, unless the service is operated, endorsed, sponsored or expressly approved by the state bar [emphasis added].

The Agency program is a private, for-profit group advertising program that is not "operated, sponsored, or approved by a bar association." ER 7.1(r)(3) does not expressly preclude an Arizona attorney from participating in such a private program. Rather, since this rule is worded in the affirmative--an attorney "may be recommended . . . by" or "may cooperate" with the listed entities--at most ER 7.1(r)(3) creates a negative implication that an attorney may not participate in any other such referral programs, in particular may not participate in one like Agency's that is not "operated, sponsored, or approved by a bar association" (a "sponsored" program).

While such a negative implication is a plausible reading of the rule, it is somewhat countered by the language of ER 7.1(r)(3)(E), which seems to imply that one may participate in a non-sponsored service so long as one does not represent that the service is "operated, endorsed, etc." by the State Bar unless the service in fact is so operated, endorsed, etc. This seems to say that, as long as a lawyer does not create a misleading impression as to sponsorship of the service, the service itself need not be a sponsored one. On the other hand, the apparent contradiction from these two implications may be resolved by noting that the first negative implication involves sponsorship by "a," (that is, any) bar association, while the second exception applies only to sponsorship by "the state bar." In this way, we could reconcile the ambiguous language of ER 7.1(r)(3) and still be left, by negative implication from the limited scope of what is expressly allowed, with a prohibition on participation in a non-sponsored program such as Agency offers.

This confusion over the exact scope of whatever restriction ER 7.1(r)(3) contains on lawyers using "lawyer referral services" is heightened by the change in ER 7.1(j), which prohibits generally a lawyer from giving anything of value to a person for recommending the lawyer's services (except for payment of the "reasonable cost of advertising"). The previous version of this provision in Arizona, former ER 7.2(c), tracked the language of the cognate ABA Model Rule and stated an exception allowing a lawyer to pay the "usual charges of a not-for-profit lawyer referral service." Former ER 7.2(c) (emphasis added). The current version, however, allows a lawyer to "pay the usual charges of a lawyer referral service," without the restriction that the service be not-for-profit. ER 7.1(j). The strong implication from this deliberate change in wording is that the intent is to allow lawyers greater participation in "lawyer referral services," both for-profit and not-for-profit, and perhaps as well regardless of their bar sponsorship as discussed under ER 7.1(r)(3). Indeed, the more unusual it is for a bar sponsored lawyer referral program to be run for profit, the more likely it is that this significant change in wording reflects the fact that for-profit non-sponsored services now are contemplated and permitted.

Moreover, we are reluctant to start reading restrictions into the rules by negative implications arising from affirmative statements of what lawyers may do for fear of where such methods of interpretation may take us. For example, a basic provision, ER 7.1(c), says that a lawyer "may advertise services" through certain public media such as those then listed. Are we to infer that the list of permissible media is an exclusive one and that inventive new methods of advertising (computer bulletin boards, perhaps) that comply with all the other rules are prohibited? Similarly, with respect to solicitation, ER 7.3(b) specifically states that a lawyer "may initiate written communication . . . with persons known to need legal services of the kind provided by the lawyer in a particular matter." Is it a fair implication that a lawyer may not communicate through general non-targeted mailings with other prospective clients? This would not make much sense, and here, of course, the official comments to ER 7.3(b) indicate otherwise. The text of the rule, however, and not the comment is authoritative (See Rule 42, Scope), and this, therefore, again illustrates the danger of drawing negative implications from permissive language of the Rules.

Thus, we well might hesitate to rely simply on such a negative implication from ER 7.1(r)(3), plausible though it may be, to foreclose the sort of group or cooperative advertising at issue here. Such group advertising is gaining wide acceptance elsewhere (see below) and, apparently, is rapidly becoming one of the few economically feasible means for individual and small firm attorneys to reach a mass media audience with a message that, in general, attorneys are entitled to deliver and the public is entitled to hear. Our hesitancy in relying simply on negative implications is confirmed when we note that, because of  the considerable first amendment interests at stake of both attorneys and the public, the Supreme Court often emphasizes that in restricting lawyer advertising, "[p]recision of regulation must be the touchstone," In re Primus, 436 U.S. 412, 432-33 (1978), quoting, NAACP v. Button, 371 U.S. 415, 438 (1963)). See also, Shapero v. Kentucky Bar Association, 486 U.S. 466, 476-78 (1988) (favoring precise, individualized means of regulation); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 644 (1985) (disfavoring approach based on prophylactic rules).

We need not resolve this matter, however, because we believe that the Agency group advertising program at issue here does not constitute a "lawyer referral service" within the meaning of whatever restrictions apply to such services under the rules.

B. Under the Agency program, the answering service takes calls from prospective clients who respond to the televised ads and then, based solely on the zip code the caller provides, passes the caller's name and phone number on to the geographically corresponding participating lawyer who contacts the client. In a narrow sense then, the caller is not "referred" to a lawyer, rather a lawyer is "referred" to a prospective client. Thus, even in lay terms, this may not be a service that refers potential clients to lawyers. At any rate, we believe that the phrase "lawyer referral service" is a term of art under the rules and in this technical sense is not meant to and does not preclude the sort of group advertising and mechanical, non-discretionary answering service provided by Agency.

In 1989, the Standing Committee on Lawyer Referral and Information Service of the American Bar Association noted the recent proliferation of private lawyer referral services and issued a report to the House of Delegates recommending the development of minimum quality standards for both bar-sponsored and private lawyer referral services. As adopted by the House of Delegates, these standards include admission criteria for participating lawyers and minimum experience requirements for participants on specialty panels, procedures for determining client satisfaction and addressing client complaints, and procedures for suspension and removal of participating attorneys who perform unsatisfactorily.

In recommending these kinds of minimum quality standards for both bar-sponsored and private services, the report makes clear the nature of the entities with which it is dealing. At the outset the report states:

Lawyer Referral programs offer two important services to the public. First, they help the client determine if a problem is truly of a legal nature by screening inquiries, and referring the client to other service agencies when appropriate. The second and perhaps more important function of a lawyer referral service is to provide the client with an unbiased referral to an attorney who has experience in the area of law appropriate to the client's needs.

Later in its report, the ABA Committee notes that, with the advent of lawyer advertising, the function of the lawyer referral services (LRSs) it was describing has changed:

Today, the function of LRSs has expanded as has the public's expectation of them. Rather than simply providing a name or list of names, the LRS is expected to be able to match the consumer's particular legal, economic, geographic, language and other needs with an attorney who is competent to handle the matter referred or to [sic] another agency or organization if that is in the best interest of the client.

We believe that this concept of a "lawyer referral service," described in the ABA Committee report and reflected in the House of Delegate's resolution on  minimum quality standards, should inform the use of that term as a term of art for the purposes of the restrictions at issue here imposed under the ABA Model Rules and the ethical rules in Arizona derived from these Model Rules. On this basis, we do not believe the Agency program as presented to us qualifies as a "lawyer referral service."

Traditional "lawyer referral services" assist potential clients to determine whether they have a legal problem and, if they do, help them to determine its nature and choose the most appropriate referral to handle the matter, whether to a particular attorney or to an appropriate social service agency. If referral to an attorney is called for, the service attempts at some level to match the attorney to the client based on the nature of the required representation, the qualifications of the attorney, and other characteristics of the client and his or her needs.

The Agency service in contrast does not even attempt to provide such services to callers. There is minimal interaction between Agency operators answering the calls and the callers responding to the advertisement. In particular, a caller receives no information about the attorney who will return his or her call. Rather, a caller simply provides his or her name, telephone number and zip code. This information is then passed on to the geographically corresponding participating attorney. There is no opportunity for any screening of calls or subjective determinations by Agency. There is no exercise of discretion. If some mischievous teenagers made a prank call and left the name "I. B. Hurting" and the telephone number of a local pizza parlor, presumably an unsuspecting Agency operator would pass this information along to the appropriate attorney just as with any other call. Particularly in light of the ABA description of lawyer referral services, it seems rather anomalous to us to consider a program such as Agency's, that has no process and makes no attempt to filter out even prank calls, a true lawyer referral service. The sort of quality standards recommended by the ABA for a lawyer referral service have little application to the much more limited service Agency provides. Some level of subjective, discretionary decision-making should be required for a service to qualify as a  lawyer referral service. Lacking this, we believe it more appropriate to characterize the Agency program as a group advertising program coupled with a telephone answering service. Participation in such a program is not prohibited by ER 7.1(r)(3).

This conclusion is not precluded by prior advisory opinions of the State Bar's Rules of Professional Conduct Committee (Ethics Committee). In its Opinion 85-08, that Committee reviewed, under the previous version of the Arizona rules on advertising, a group advertising and client referral service very similar to the Agency program. That Committee, however, did not have before it the specific content of the advertisement in question and, therefore, speculated about possible problems if the group advertisement did not indicate the individual lawyers sponsoring the ad and make clear they were acting independently and maintained no relationship amongst themselves. As described, the Agency program avoids these possible problems.

Ethics Opinion 85-08 also concluded that, unless the service in question was bar-sponsored and not-for-profit, it would be a lawyer referral service prohibited by the then current rules.[4]As discussed above, we believe the better analysis under the amended rules is to recognize a distinction between a "lawyer referral service" subject to specific additional requirements and a group advertising and answering service such as the Agency program that is not so limited.

Such a distinction is recognized in the increasing number of jurisdictions that are approving modern programs such as Agency's. The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, in its Opinion 89-30 (1989), approved lawyer participation in an "Injury Helpline" program. In doing so, the Ohio Board of Commissioners viewed the program not as a referral service but as group lawyer advertising, "a relatively new concept that facilitates the process of informed selection of a lawyer by potential consumers of legal services." The Ohio Board further explicated the distinction it was making in its Opinion 91-07 (1991), when it disapproved a program that, among other matters, went beyond the purely ministerial function of the Injury Helpline and instead gathered facts from responding callers, applied a screening process and promised participating lawyers they would receive "a certain number of quality, screened referrals each month."

Similarly, the Cleveland Bar Association Professional Ethics Committee, in its Opinion No. 89-04 (1989), recognized group television advertising as a "cost effective means of informing the public of the availability of legal counsel"[5]and approved an "Injury Helpline" program. The Cleveland Committee found the program closer to permissible group advertising than to a prohibited for-profit lawyer referral service. The "key differences" between the two focused on the individual lawyer's prior approval of the content of each advertisement and the "purely ministerial" function of the program and its answering service, which therefore did not act as the lawyer's agent in any substantive way. The same is true of the proposed Agency program in Arizona.[6]

We, therefore, conclude that participation in the Agency program in Arizona is not precluded by ER 7.1(r)(3) and turn to examine the program's compliance with other relevant provisions of the rules.

2. Does the fee arrangement between participating attorneys and Agency for Agency's design, production and broadcast of the advertisement violate the prohibition in ER 7.1(j) of a lawyer giving anything of value to a person for recommending the lawyer's services?

Rule 7.1(j) provides:

(j) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written or recorded communications permitted by these rules and may pay the usual charges of a lawyer referral service or other legal service organization.

The reference here to a "lawyer referral service" does not apply to the Agency program as we have just discussed. Moreover, the fee arrangement here complies with the provisions of 7.1(j) in that each participating lawyer pays an initial advertisement preparation fee and an annual advertising fee. No other fees are paid. Once the fee is set, the number of calls received by a lawyer and the number of cases accepted by the lawyer have no impact upon what the lawyer pays Agency. Nothing indicates that a participating lawyer pays anything other than a "reasonable cost of advertising," as determined in the agreement between the lawyer and Agency. There is, therefore, no problem under ER 7.1(j).

3. Is the advertisement "false or misleading" within the meaning of ER 7.1(a)?

ER 7.1(a) provides:

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

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

(2) 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;

(3) compares the lawyer's services with any other lawyers' services, unless the comparison can be factually substantiated;

(4) is a factual statement which cannot be factually substantiated.

There are no apparent, overt misrepresentations of fact or law in the advertisement. There is some concern, however, that the format of the advertisement may imply some things which could mislead consumers[7], and perhaps omits a number of facts which could be more clearly disclosed. The slogan "Injury Helpline" and the exclusive focus on personal injury cases may imply to some that the lawyers to whom callers will be referred possess special qualifications in the area of personal injury law that set them apart from other lawyers in the community even though the ad does not say so expressly. Viewers are not informed that the only qualifications the participating lawyers must have are a license to practice law in Arizona, $250,000 in malpractice insurance, good standing with no pending disciplinary proceedings and an interest in taking personal injury cases. Agency does not require specialization and does not screen the lawyers' backgrounds or qualifications. Callers are referred to a particular lawyer merely because the lawyer has purchased exclusive rights to the caller's zip code location. Furthermore, the group nature of the advertisement might imply the existence of a relationship among the participating lawyers which does not exist. A viewer might be left with the impression that there exists some sort of umbrella organization, known as the Injury Helpline, which has selected the participating lawyers because they possess some special expertise in the area of personal injury law.

While these are legitimate concerns, their import, if any, necessarily is highly speculative. Moreover, we are mindful that in rendering overall advisory opinions on proposed advertisements, considered as a whole, our role is not to play editor and "improve" the ads in ways the Committee might suggest. We also recognize that while it almost always would be possible to clarify any given ad through additional disclosures, there are substantial costs associated with this and very finite limits on what is feasible, especially since additional information tends to crowd out and dilute the main, existing message. Nonetheless, we strongly encourage those who prepare lawyer advertisements, particularly those such as Agency with experience and professional expertise in this regard, to be especially sensitive to the perception of such ads by a lay audience and take all reasonable measures to ensure that the ads they run are clear, complete and fully informative even beyond the "false or misleading" standard.

On balance, then, we do not believe the present ad violates ER 7.1(a)(1),(2), or (4). Early in the ad it notes in large print on the bottom of the screen that "A Group of Independent Law Firms has Paid for this Advertisement." The next screen replaces this with the disclosure, again in large print, "Not a Lawyer Referral Service." While this may have limited meaning for the lay public, it does somewhat counteract an otherwise more likely impression that the answering service the prospective client calls will screen the calls based on information provided and attempt individualized referrals on some meaningful basis. Moreover, the actual nature of the advertisement is confirmed at its conclusion when the names, addresses and geographical areas served of all the participating attorneys are listed and they are labelled as "Participating independent law firms and attorneys." At this point the legend on the screen also briefly notes that lawyers are matched with callers strictly on the basis of geographical area. Any remaining uncertainty on this point presumably is rectified when the prospective client calls the "800" answering service and is asked for no information other than a zip code to complete a match with a participating attorney.

Finally, we think the import of the "Injury Helpline" slogan as to screening and selection of attorneys with particular expertise and specialization is similar to that of many other lawyer ads that are not questioned on this point. Many lawyers advertise in a variety of media, ranging from the yellow pages to billboards to television, seeking clients in particular areas such as personal injury, bankruptcy, domestic relations and the like. They may use catchy slogans similar to "Injury Helpline". The message conveyed by such ads clearly is that these lawyers, through self-selection, are offering to represent people with legal problems in the respective areas. The independent lawyers identified as purchasing the right to participate in the Agency ad are doing the very same thing and we perceive no significantly different aura of claimed expertise or specialization, or third-party selection based on such factors.

4. Does the advertisement compare the services of the participating lawyers to the services of other lawyers in a manner that cannot be factually substantiated, in violation of ER 7.1(a)(3)?

The only statement which might be interpreted to imply a comparison of the services of the participating lawyers to the services of other lawyers is the statement that the attorneys "can explain your legal rights in plain English." It is questionable, however, whether the ad should be taken as asserting that the advertising lawyers can do this better than other lawyers. Moreover, if so interpreted, this is not a factual statement that appears susceptible of either substantiation or refutation. At most it should be considered mere hyperbole and does not pose a problem under ER 7.1(a)(3).[8]

5. Is the advertisement "predominantly informational" for the purposes of ER 7.1(b), and are the televised dramatizations "designed to further the informational purposes of legal advertising," as required under ER 7.1(q)?

ER 7.1(b) provides:

All communications and advertising concerning a lawyer's services shall be predominantly informational. As used in this rule, "predominantly informational" shall mean that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of an attorney predominates.

ER 7.1(q) states:

Advertisements on the electronic media, such as television and radio, may contain the same information as permitted in advertisements in the print media, subject to the following requirements:

(1) Impersonations, dramatizations and recreations shall comply with all, the requirements set forth in these rules, and shall be designed to further the informational purposes of legal advertisement.

Since the Agency television ad in question uses dramatizations and impersonations throughout (the succession of "ordinary people" described above), these must be "designed to further the informational purposes of legal advertisement" under ER 7.1(q)(1). The advertisement as a whole must be "predominantly informational" under 7.1(b). At least in this case, we believe that if the advertisement satisfies this criterion of 7.1(b), it necessarily also will satisfy 7.1(q)(1).[9] We therefore analyze the commercial with respect to both provisions by considering whether the ad is predominantly informational.

The predominantly informational standard of ER 7.1(b) was formulated to require all lawyer advertisements, taken as a whole, to be informative to the public as opposed to being just emotional, irrational sales pitches. The Supreme Court of Arizona emphasized this distinction in indicating, under the prior version of the Arizona rules on lawyer advertising, the type of information proper in an advertisement for legal services:

Advertisements are likely to minimize the danger of violating of ER 7.1 if they are designed to inform consumers of their rights and of the methods available to meet legal problems and crises; to inform the public of the availability and costs of services; or to convey accurate information relevant to making informed, rational choices of counsel, including information about counsel's availability and areas of practice [citations omitted]. In the future, the bar should examine lawyers' advertisements to determine whether, taken as a whole, they are predominantly informational or are simply emotional, irrational sales pitches. While the latter may not be prohibited by ER 7.1, they should be examined carefully to assure that they are neither false nor misleading. In re Zang, 154 Ariz. 134, 146, 741 P.2d 267, 279 (1987), cert. denied sub nom. Whitmer v. State Bar of Arizona, 484 U.S. 1067 (1988).

This passage from Zang was cited by the State Bar in its petition to amend the advertising rules, which makes clear that the current version of ER 7.1(b) is derived directly from Zang. State Bar of Arizona, Petition to Amend Rule 42, Ariz.R.S.Ct. 42, ER 7.1, ER 7.2, ER 7.3 and ER 7.4, No. R-90-0024 (filed with the Clerk of the Arizona Supreme Court, June 7, 1990), at 6.

The Agency ad does use impersonations and dramatizations to convey its message. These, of course, are perfectly permissible. A state may not limit lawyer advertising to "a bland statement of purely objective facts." Shapero v. Kentucky Bar Association, 486 U.S. 466, 479 (1988) (plurality opinion). Moreover, the value of appropriate dramatic techniques in lawyer advertising is well recognized. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 647 (1985) ("[t]he use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly"); Zang, 154 Ariz. at 146, 741 P.2d at 279 ("[s]ome music or drama may help  convey the attorney's message").

At any rate, although it is inherently a highly subjective judgment, we certainly find nothing in the Agency ad that we would consider an emotional or irrational sales pitch. It conveys the standard kind of information described in the above passage from Zang. The ad informs consumers of an easy way to access an attorney for assistance with regard to certain kinds of legal problems. It informs the public about "counsel's availability and areas of practice." It lists the names and addresses of available attorneys. In addition, with a single telephone call it offers to put potential clients in touch with an attorney close to where they live, work or some other desired location. This may be particularly useful for clients of limited mobility. In short, we find the thirty second Agency advertisement "predominantly informational"  within the meaning of ER 7.1(b).


For the above reasons, we conclude that Arizona attorneys are not precluded by ER 7.1(r)(3) or ER 7.1(j) from participating in the Agency program of group advertising as described herein, Also, the specific ad presented to us complies with the criteria of ER 7.1(a) and is not "false or misleading." Finally, the ad is "predominantly informational" and does not violate either ER 7.1(b) or ER 7.1(q)(1).

[1] The ad offers to put a viewer in touch with an attorney "near you". If participating attorneys do not maintain geographical proximity between their offices and the zip code areas they service, the ad could be misleading in this regard. See the discussion below, under Question 3, of the requirement that an advertisement not be "false or misleading" under ER 7.1(a). As the facts have been presented to us, we do not think the commercial under consideration presents a problem in this regard.

[2] The fee for a particular area may vary, however, depending on a mix of demographic factors (population, median income and growth projections) and historical productivity in terms of the number of calls received from an area, though not the number of accidents in or cases filed from an area.

[3] The determining zip codes provided by callers might reflect where they reside, where they work or where they wish a reference to an attorney doing business, apparently at the caller's option.

[4] The Arizona Rules Committee reached the same conclusion, again under the former Rules, in describing in Opinion 90-09 a variety of problems with a proposed ad for the "Bankruptcy Attorneys Trust" coupled with a service that screened calls and then actually referred qualified callers to a participating  attorney. In addition, there were significant other problems with the proposed program, and again there was no discussion of a distinction between lawyer referral services and group advertising.

[5] See also New York State Bar Association Committee on Professional Ethics, opinion 597 (1989) (generic television advertising "may be the only way it is economically feasible for a practitioner with a small practice to afford certain forms of advertising.")

[6] See also New York State Bar Association Committee on Professional Ethics, Opinion 597 (1989) (lawyer group advertising that identifies individual, independent participating lawyers and does not involve discretion in making referrals by the advertising agent is permissible); Maryland State Bar Association Committee on Ethics, Ethics Docket 88-78 (1988) (the concept of Lynch's "Injury Helpline" program is "a form of group advertising rather than a traditional lawyer referral service" and therefore does not per se violate the Maryland Rules of Professional Conduct).

[7] See supra note 1.

[8] Cf. Milkovich v. Lorain Journal, 110 S. Ct. 2695, 2706-07 (1990) (discussing, in the context of defamation, protection for statements that cannot "reasonably [be] interpreted as stating actual facts" but rather should be considered just "imaginative expression" or "rhetorical hyperbole," quoting, Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 53-55 (1988)).

[9] It is conceivable that a television advertisement could include a segment that violates 7.1(q)(1) even though the ad as a whole is predominantly informational under 7.1(b). Since this does not apply to the present thirty second commercial we leave open the question whether this ever will be the case.

Copyright ©2004-2018 State Bar of Arizona