Is a law firm brochure permissible under Alabama's lawyer-advertising rules?

Plain-English summary

An attorney submitted a firm brochure to the Disciplinary Commission for review and approval. The Commission concluded that the brochure was permissible under the Temporary Disciplinary Rules then governing lawyer advertising, specifically Temporary DR 2-101 through 2-104.

The opinion quoted those rules at length. Temporary DR 2-101 bars false or misleading communications about a lawyer or the lawyer's services, including communications that misrepresent fact or law, omit a necessary fact, create unjustified expectations about results, or improperly compare the quality of services. Temporary DR 2-102 sets the conditions for advertising through public media (filing a copy with the Office of General Counsel within three days, retaining a copy for six years, identifying a responsible lawyer, including the no-representation-of-quality disclaimer, and standing behind any advertised fee for at least sixty days). Temporary DR 2-103 restricts in-person and telephone solicitation motivated by pecuniary gain, and Temporary DR 2-104 limits claims of specialization, with exceptions for patent and admiralty practice.

The opinion also noted that the Commission had accepted the United States Supreme Court's decision in Shapero v. Kentucky State Bar as allowing advertisements directed toward targeted groups or individuals, provided the advertisements otherwise conform to the cited Temporary Disciplinary Rules. Because the submitted brochure appeared to conform to those rules, the Commission found it permissible.

Currency note

This opinion was issued in 1990, under the former Alabama Code of Professional Responsibility (the Temporary Disciplinary Rules on advertising) and before the Alabama State Bar's January 1, 1991 adoption of the Rules of Professional Conduct and the 2002 Ethics 2000 revisions to the ABA Model Rules. Lawyer advertising and solicitation are now governed by Rules 7.1 through 7.4, which have themselves been amended since. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did the Alabama Bar pre-approve lawyer brochures?

A: The opinion reflects a review-and-approval practice: the attorney submitted the brochure to the Disciplinary Commission, which evaluated it against the Temporary Disciplinary Rules and found it permissible.

Q: What standard did the brochure have to meet?

A: Per the opinion, it could not be false or misleading under Temporary DR 2-101 and had to comply with the advertising, solicitation, and specialization limits in Temporary DR 2-102 through 2-104.

Q: Did the opinion allow targeted-audience advertising?

A: Yes. The opinion noted the Commission had accepted Shapero v. Kentucky State Bar as allowing advertisements directed at targeted groups or individuals, so long as they otherwise conformed to the Temporary Disciplinary Rules.

Background and rules framework

The opinion interprets the Temporary Disciplinary Rules on lawyer advertising and solicitation (former DR 2-101 through 2-104), the subject matter now covered by Rules 7.1 (communications about a lawyer's services), 7.2 (advertising), 7.3 (solicitation), and 7.4 (fields of practice and specialization). The analysis turns on whether the brochure is false or misleading and whether it satisfies the media, disclaimer, and recordkeeping conditions the rules imposed.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / former Ala. Temporary DR 2-101 (false or misleading communications)
• Model Rule 7.2 / former Ala. Temporary DR 2-102 (advertising through public media)
• Model Rule 7.3 / former Ala. Temporary DR 2-103 (solicitation)
• Model Rule 7.4 / former Ala. Temporary DR 2-104 (fields of practice; specialization)

Cases:

• Shapero v. Kentucky State Bar (U.S. Supreme Court), accepted as allowing targeted-group or targeted-individual advertising

See also

• AL Ethics Op. 1990-100: trade name must appear in all permissible communications

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1990-09/
• Original PDF: https://www.alabar.org/assets/2019/02/1990-09.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-90-09

QUESTION:

The attorney has presented a firm brochure for review and approval. A copy of the brochure is attached hereto as Exhibit "A".

ANSWER:

The brochure presented is permissible pursuant to the provisions of Temporary Disciplinary Rules 2-101, 2-102, 2-103, and 2-104 which state as follows:

"DR 2-101 * * *

A lawyer shall not make or cause to be made a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(A) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

(B) 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; or

(C) Compares the quality of the lawyer's services with the quality of other lawyer's services, except as provided in Temporary DR 2-104.

(D) Communicates the certification of the lawyer by a certifying organization except as provided in Temporary DR 2-112."

Temporary Disciplinary Rule 2-102 provides:

"DR 2-102 * * *

Any lawyer who advertises concerning legal services shall comply with the following:

(A) Subject to the requirements of Temporary DR 2-101, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor displays, radio, television, or written communication not involving solicitation as defined in Temporary DR 2-103.

(B) A true copy or recording of any such advertisement shall be delivered or mailed to the Office of the General Counsel of the Alabama State Bar at its then current headquarters within three (3) days after the date on which any such advertisement is first disseminated; the contemplated duration thereof and the identity of the publisher or broadcaster of such advertisement, either within the advertisement or by separate communication accompanying said advertisement, shall be stated. Also, a copy or recording of any such advertisement shall be kept by the lawyer responsible for its content as provided hereinafter by Temporary DR 2-102(D), for six (6) years after its last dissemination.

(C) 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 any advertisement or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service.

(D) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.

(E) No communication concerning a lawyer's services shall be published or broadcast unless it contains in legible and/or audible language the following: 'No representation is made about the quality of the legal services to be performed or the expertise of the lawyer performing such services.' (Amended effective January 6, 1986)

(F) If fees are stated in the advertisement, the lawyer and/or law firm advertising must perform the advertised services at the advertised fee, and the failure of the lawyer and/or law firm advertising to perform an advertised service at the advertised fee shall be prima facie evidence of misleading advertising and deceptive practices. The lawyer and/or law firm advertising shall be bound to perform the advertised services for the advertised fee and expenses for a period of not less than sixty (60) days following the date of the last publication or broadcast."

Temporary Disciplinary Rule 2-103 provides:

"DR 2-103 * * *

A lawyer may not solicit nor cause to be solicited on his behalf professional employment from a prospective client, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term 'solicit' includes contact in person or by telephone."

Temporary Disciplinary Rule 2-104 provides:

"DR 2-104 * * *

A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is a specialist except as follows:

(A) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation 'patent attorney' or a substantially similar designation.

(B) A lawyer engaged in admiralty practice may use the designation 'admiralty,' 'proctor in admiralty' or a substantially similar designation."

In addition, the United States Supreme Court decision in Shapero v. The Kentucky State Bar has been accepted by the Disciplinary Commission as allowing advertisements to be directed toward targeted groups or individuals, provided that the advertisements are otherwise in conformity with the Temporary Disciplinary Rules cited hereinabove. Accordingly, the brochure presented, which does appear to be in conformity with those Rules, is permissible.

AWI/vt

1/18/90