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Ethics Opinions Every South Carolina Attorney Should Know: Part XIV, Don’t engage in misleading advertising

As someone who has an expansive web site and blog devoted, in part, to marketing my family law practice, I am highly interested in Supreme Court disciplinary opinions dealing with the Rules of Professional Conduct as it relates to lawyer advertising.  In 2009, the Supreme Court, in the case of In re Anonymous Member of SC Bar, 386 S.C. 133, 687 S.E.2d 41 (2009), issued a Letter of Caution to an attorney who used forms of the words “expert” and “specialist” in the attorney biographies on his website when he was not a Supreme Court certified specialist in the field at issue.  The Supreme Court found such terminology was misleading and violated Rule 7.4(b) of the Rules of Profession Conduct, which reads:

A lawyer who is not certified as a specialist but who concentrates in, limits his or her practice to, or wishes to announce a willingness to accept cases in a particular field may so advertise or publicly state in any manner otherwise permitted by these rules. To avoid confusing or misleading the public and to protect the objectives of the South Carolina certified specialization program, any such advertisement or statements shall be strictly factual and shall not contain any form of the words “certified,” “specialist,” “expert,” or “authority” except as permitted by Rule 7.4(d) [regarding admiralty practice].

On May 9, 2011, in In the Matter of Michael Hensley Wells, 392 S.C. 371, 709 S.E.2d 644 (2011), the Supreme Court issued its first opinion publically reprimanding an attorney solely for misleading advertising.  Among Mr. Wells’ misleading advertisements:

  • Claiming he had “worked in the legal environment for over twenty years.”  Although he had worked as a clerk for a law firm while in college and law school, he had only actually practiced law for about seven years when these materials were disseminated.
  • Describing the firm’s “numerous trained and experienced attorneys” and including language on his website describing the firm’s attorneys as “thoroughly familiar with the local court system”, “highly skilled”, possessing “wide-ranging knowledge”, and having a “deep personal knowledge of the courts, judges, and other courthouse personnel.”  In fact, his two associates each had been admitted to the practice for less than one year.
  • His website included a statement that “our attorneys handle all types of legal matters in state and federal court in South Carolina” when, in fact, that was not the case.  The website also stated that the firm represents clients “in every level of the South Carolina state court system”, which was not true.
  • His website also stated that “[e]ach attorney with Coastal Law Firm focuses his or her practice exclusively on one area of the law [thus] each attorney is deeply familiar with the law and procedural issues related to their clients’ cases.”  However, he listed at least twenty-seven distinct practice areas on his website even though only three attorneys (including himself) were employed with the firm.
  • His website further stated that the firm had served clients in constitutional law, civil rights, ethics and professional responsibility, and toxic torts.  No lawyer in the firm had actually handled any matters in those areas; however, they were willing to accept such cases.
  • His website contained a page entitled “Consumer Protection and Products Liability Lawyer.”  The page claimed that the firm has “a history of winning [products liability] cases” and that it employs “defective products liability lawyers” who “understand how to deal with both corporations and insurance companies and have a history of winning cases for our clients.”  He stated that “At Coastal Law, our . . . product recall lawyers understand what is required in filing a medical injuries claim for manufacturer negligence in producing a hazardous drug or product leading to a dangerous product recall.  We can aggressively pursue your legal rights against negligent corporations that may have introduced a product that damaged your health.”  Neither he nor any lawyer in his law firm had ever handled a products liability matter.
  • In terms of the firm’s office locations, some of his telephone book advertisements stated that the firm had offices in Georgia and Florida.  At the time, he had a referral arrangement with firms located in those states and had plans to merge his firm with another South Carolina lawyer, who had offices in Georgia and Florida.  His firm, however, never actually operated offices in those states.
  • With respect to the foreign language ability of the firm’s employees, his advertising materials included the phrase “We Speak Spanish” written in Spanish.  None of the lawyers in the firm spoke Spanish.  Only part of the time when these advertisements were published did the firm employ a staff member who spoke Spanish.  The inclusion of “We Speak Spanish” in his advertising, particularly at times when no one in the office spoke Spanish, was misleading as it implied that the firm employed Spanish- speaking attorneys.
  • As to the firm’s reputation, his website included a number of statements that could not be factually substantiated such as the firm “developed a reputation over the years for outstanding results” and the firm is “recognized as an established, experienced, and reputable local Myrtle Beach law firm.”  He admitted at the hearing that the inclusion of this language was a “mistake” as his law firm had not been identified as a leading law firm or received special recognition.
  • In his advertising materials, he improperly compared his law firm’s services to other law firms in ways that could not be factually substantiated with statements such as “best attorney available”, “most effective legal services”, and “best services possible.” He acknowledged that it was inappropriate to make these comparisons to other lawyers.
  • Although he filed his telephone book advertisements with the Commission on Lawyer Conduct in compliance with Rule 7.2(b), he admitted that he did not do so with his website or firm brochure. [note that this requirement was abolished by the June 28, 2010 modification of this Rule of Professional Conduct].
  • He admitted that some of his telephone book advertisements listed only the law firm name and not the name of a lawyer that was responsible for the content of the advertisements.
  • He admitted in his Answer that his firm brochure characterized the quality of his firm’s legal services for criminal defense clients as “tough criminal defense representation.”  He also admitted that his website characterized his firm’s attorneys as: “highly skilled at obtaining bonds for their clients”; “dedicated attorneys who provide excellent legal advice”; “maintaining a high degree of professionalism” in real estate matters; and “intelligent”, “competent”, and “full service.”
  • He admitted that his telephone book advertising and website included statements regarding contingent fee arrangements, including the following statements: “no fee until you receive money”; “no fees up front to handle your personal injury or wrongful death case”; and “your cost is nothing unless we win.”  He, however, failed to disclose whether the client would be liable for any expenses in addition to the fee or whether the percentage of the contingency fee would be computed before deducting the expenses.
  • His website referred to the firm’s “expertise” in personal injury matters and the firm’s “expert nursing home litigation advisors.”  The website and firm brochures also stated that the firm “specializes in several areas of law.”  He, however, admitted that no one in his firm was a certified specialist in any area of law.

The Supreme Court found such marketing violated the provision of Rule 7.1 of the Rules of Professional Conduct that prohibits “false, misleading, deceptive, or unfair communications about the lawyer or the lawyer’s services.” In addition to publicly reprimanding Wells, fining him, and making him pay the costs of the disciplinary proceedings, the Supreme Court required him to complete the Ethics School and the Advertising School of the Legal Ethics and Practice Program administered by the South Carolina Bar.

The lessons of Wells: make sure one’s marketing isn’t misleading and that it complies with the Rules of Professional Conduct regarding lawyer advertising.

 

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