Ethics of Advertising

It is estimated that lawyers spend a little more than $1 billion a year on television advertising. That number seems low. According to data from Tunnl, a single law firm, Morgan & Morgan, spent nearly $240 million on television ads in 2023. I saw several of their ads on a recent weekend stay in South Carolina. In fact, it seemed like every other ad on television was a lawyer advertisement. I can only assume that South Carolina residents are bad drivers and are very accident prone. 

This onslaught of television ads caused me to think about the ethics of lawyer advertising. Prior to 1978, lawyer television advertising was prohibited by State Bars across the country. This changed when the United States Supreme Court decided Bates v. State Bar of Arizona, 433 U.S. 477 (1978). In Bates, the Court held that First Amendment extends to lawyer advertising and that a state may not constitutionally ban a lawyer’s newspaper advertisement for legal services. The Court pointed out that states were still permitted to ban false, deceptive, or misleading advertising. 

After Bates, the North Carolina Supreme Court adopted Rule 7.1 of the Rules of Professional Conduct, which provides as follows:

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 contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Such communications include but are not limited to a statement that is likely to create an unjustified expectation about results the lawyer can achieve, a statement that states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law, or a statement that compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.

While this is somewhat helpful, it leaves the door open very wide for interpretation of what is a false or misleading communication. If you want to get some idea of what crosses the line with the State Bar, review Alice Neece Mine’s State Bar Journal article “Misleading Communications: The Bad, the Ugly and The ???”  In her article she reviews specific cases where the State Bar reprimanded lawyers for advertising violations. One of the common themes in the examples she cites is exaggeration. When lawyers exaggerated what they could do or promised things they could not possibly deliver, they were reprimanded. 

In addition to avoiding exaggeration, here are some additional tips for advertising:

• Do not create advertisements for practice areas that you do not typically handle.
• Do not guarantee particular results.
• Do not suggest that you have a special relationship with judges or law enforcement that might lead to better results.
• Do not state that you are a specialist unless you have been certified by the North Carolina State Bar as a specialist or by another organization that is accredited by the American Bar Association under procedures and criteria endorsed by the North Carolina State Bar. 

Complying with Rule 7.1 is like many of the other rules in the Rules of Professional Conduct. When specific guidelines are not provided, you should trust your gut. If an advertisement feels like it might be crossing a line, it probably is.