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South Carolina Supreme Court modifies Rules of Professional Conduct on lawyer advertising and client “testimonials”

I have previously criticized how the Office of Disciplinary Counsel was interpreting the South Carolina Rules of Professional Conduct as it relates to attorney advertising, especially as it regards “testimonials” left by clients on third-party web sites noting their opinion of their attorneys.

Today, the South Carolina Supreme Court modified Rules of Professional Conduct 7.1, 7.2 and 7.3 to lift this prohibition.  The changes made are:

  • The term “unfair” is deleted from Rule 7.1;
  • The ban on testimonials is deleted from Rule 7.1(d) and replaced  with language allowing testimonials under certain conditions;
  • Comments [1] and [3] to Rule 7.1 are amended to address the change in the ban on testimonials;
  • Rule 7.2(a) is amended to provide that all advertisements shall be predominately informational such that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of a lawyer predominates and the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication.  A new Comment [4] has been added to address the amendment to Rule 7.2(a).  The remaining Comments have been renumbered;
  • Rule 7.2(c)(2), and new Comment [8] to Rule 7.2, are amended to require that the legal service plan or not-for-profit lawyer referral service not be acting in violation of any Rules of Professional Conduct;
  • Rule 7.2(f) is deleted and sections (g), (h), and (i) of the rule are re-designated as sections (f), (g), and (h);
  • New Comment [6] to Rule 7.2 is amended to state that it is the responsibility of the lawyer who disseminates or causes the dissemination of the advertisement to review it for compliance with the South Carolina Rules of Professional Conduct.
  • The requirement that solicitations be filed with the Commission on Lawyer Conduct, together with a $50 filing fee, is deleted from Rule 7.3(c) and electronic solicitations are added to the types of solicitations for which lawyers must maintain a file;
  • Rule 7.3(d)(1) is amended to require that email solicitations be labeled as advertising material in the subject line and at the beginning and end of the message in capital letters and prominent type;
  • Rule 7.3(d)(2)(A) is amended by adding directories and the advice of others as alternative methods for obtaining information about other lawyers;
  • Rule 7.3(d)(2) and (d)(3) is amended to apply to “solicitations” and “communications,” instead of being limited to “written or recorded solicitations”; and
  • Rule 7.3(i) is amended to require a lawyer who reasonably believes a lawyer other than the lawyer whose name or signature appears on the communication will likely be the lawyer who primarily handles the case or matter, or that the case or matter will be referred to another lawyer or law firm, to notify a potential client.

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