Ethics Opinion 249

Lawyer Advertising

Rule 7.1(a) permits truthful claims of lawyer specialization so long as they can be substantiated. Claims that a lawyer can help a client “when others cannot” are inherently incapable of substantiation and are prohibited by Rule 7.1(a)(2), as is a claim in a print advertisement that a lawyer “can help YOU.”

Applicable Rule

• Rule 7.1(a) (Communications Concerning a Lawyer’s Services)

Inquiry

A practitioner has sent us draft advertising copy for the “yellow pages directory” and asks: “I would appreciate receiving a written opinion from the Ethics committee regarding the advertisement.”

The inquirer does not draw our attention to any particular portion of or statement in the advertisement. The ad appears designed to fill half a page. It features a stylized Statue of Liberty in the lower left corner and a picture of the practitioner in the upper right. At the top of the ad, in display type, the ad states: “Nationally known IMMIGRATION attorney Can Help YOU Too!” The ad continues in smaller type:

A visa application once denied, may be denied forever! You need an expert in immigration law. [The practitioner] knows the system and the people, so he can help you when others can’t. In 28 years of practice, he and his associates have solved more than 2,150 immigration problems.

[The practitioner] has made his reputation at the I.N.S.! And has learned how to cut through red tape to speed your application. Simple cases and tough ones to . . . he knows where to turn.

Fast, efficient, economical solutions to all types of immigration problems . . .

Under the practitioner’s picture there is a statement “Call me now, I’ll discuss your case with you by phone for FREE!” The ad states at the bottom “SE HABLA ESPANOL” and repeats this sentiment in the language and alphabets of three other countries. The ad also indicates that the practitioner has been “LICENSED SINCE 1963” and formerly was a government trial attorney.

Discussion

The portion of the District of Columbia Rules of Professional Conduct applicable to this inquiry is Rule 7.1(a), which provides:

(a) 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:

(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; or

(2) contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated.

Relevant commentary to this Rule states:

[1] It is especially important that statements about a lawyer or the lawyer’s services be accurate, since many members of the public lack detailed knowledge of legal matters. Certain advertisements such as those that describe the amount of a damage award, the lawyer’s record in obtaining favorable verdicts, or those containing client endorsements, unless suitably qualified, have a capacity to mislead by creating an unjustified expectation that similar results can be obtained for others. Advertisements comparing the lawyer’s services with those of other lawyers are false or misleading if the claims made cannot be substantiated.

In determining whether the advertisement in question violates Rule 7.1(a), the primary test, therefore, is whether the advertisement, or any portion of it, is misleading.

The thrust of the instant ad is that the practitioner has become expert through experience in dealing with immigration law problems and that his expertise in dealing with the Immigration and Naturalization Service allows him to be “fast, efficient [and] economical.” While such claims of special expertise are prohibited in some jurisdictions, the District of Columbia does not prohibit such statements. Indeed, the Court of Appeals, at the recommendation of the Bar, expressly rejected Rule 7.4 of the ABA Model Rules of Professional Conduct, which had attempted to regulate claims of specialization. Moreover, nothing in the commentary to Rule 7.1 suggests that the Court of Appeals intended to prevent statements claiming specialization or expertise in a particular area of the law. Accordingly, we conclude that statements of expertise in immigration law in the advertisement before us are not to be deemed inherently misleading even though such statements are to some extent incapable of substantiation.

The specific claim of expertise made in the ad does not appear to be misleading in fact. The basis of the claim of experience is disclosed in the ad, namely that the practitioner and his associates have handled 2,150 representations in I.N.S. matters over 28 years. As required by Rule 7.1(a)(2), this claim is capable of substantiation and, we assume, that the practitioner will, as he must, be able to substantiate this claim with documentation upon request by a client.sup>1 Therefore, in the absence of a factual record suggesting that this practitioner’s claims of expertise are false or will be understood by the public to go beyond “what reasonably may be inferred from an evaluation” of this practitioner’s stated years of practice and the number of INS cases he has handled, Peel v. Attorney Registration and Disciplinary Comm’n, 110 S. Ct. 2281, 2288 (1990), we have no reason to believe that this particular ad is inherently or potentially misleading in its claim of expertise.

We have more concern with two other matters. First, the statement that the practitioner “can help you when others can’t” is precisely the sort of comparative claim that is prohibited by Comment [1]sup>2 and Rule 7.1(a)(2), since it is incapable of substantiation. Second, practitioner’s claim that he “can help YOU” is also misleading, since there is no way that such a claim can be accurate in the abstract and the practitioner cannot know whether or not he can help any client until some facts are known about the client’s case.

Whether the proposed advertisement is misleading in any other way, this Committee has no way of knowing. Here, we have no facts—hypothetical or real—concerning consumers’ reactions to claims made in the ad, and we have no process by which we can ascertain whether the statements made in the advertisement are accurate or whether the public to which this advertisement is directed will be mislead in any material manner by the advertisement.sup>4 In the absence of specific proof that consumers would be mislead by the advertisement, it would be folly for this Committee to venture further guidance. Cf., e.g., Ibanez v. Florida Department of Business and Professional Regulation, ___ U.S. ___, No. 93-639, slip op. at (June 13, 1994) (to regulate commercial speech, state must demonstrate that its concerns about such speech are “real and that its restriction will in fact alleviate them to a material degree,” quoting Edenfield v. Fane, 507 U.S. ___, slip op. at 9).

Inquiry No. 90-9-38
Adopted: July 19, 1994

1. Similarly, we assume that the practitioner’s claim to be “nationally known” can be documented.
2. “Advertisements comparing the lawyer’s services with those of other lawyers are false or misleading if the claims made cannot be substantiated.”
3. In reaching the conclusion that this advertisement violates Rule 7.1(a)(2) and is therefore prohibited, the Committee takes no position on whether Rule 7.1(a)(2) is itself constitutional as so applied.
4. Under this Committee’s charter from the Bar, we are to decide cases on hypothetical facts and, accordingly, this Committee has no factfinding authority or procedures. See Rule E-4 of the Rules of the Legal Ethics Committee of the District of Columbia Bar.