In a newspaper directory of many small lawyer ads, can a single prominent disclaimer at the bottom of the page cover all of them, instead of one in each ad?

Plain-English summary

A newspaper planned to run a weekly lawyer directory: one or two pages of numerous short lawyer advertisements. It submitted two formats. In the first, the required disclaimer appeared in very small print at the bottom of each individual ad. In the second, the disclaimer appeared in large print across the bottom of the page. The newspaper wanted to use the page-bottom format and asked the Disciplinary Commission to confirm it met the rule.

The Disciplinary Commission concluded the page-bottom format met Rule 7.2(e) as long as the disclaimer is prominently displayed. The opinion quoted Rule 7.2(e), which requires every communication concerning a lawyer's services to contain the specified language ("No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers"), clearly legible or audible. The question was whether that language must appear within each ad or could be displayed once on a page containing several ads. The Commission reasoned that the purpose of the disclaimer is to dissipate possible consumer confusion or deception, citing In re R.M.J., and that this purpose is served if the disclaimer is displayed contiguous with the advertising in a prominent manner leaving no doubt it relates to the ads. The phrase "unless it contains the following language" does not require the disclaimer to sit within the perimeter of each ad; it is enough that the disclaimer is presented so there can be no question it relates to the advertisement.

The opinion limited itself to the facts presented, given the many ways a disclaimer could be displayed on a single page of multiple ads, and noted that the disclaimer language in the submitted format was not current and should be changed to reflect the current rule.

Currency note

This opinion was issued in 1992, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. The opinion itself noted the quoted disclaimer language was already outdated and should be conformed to the then-current rule. 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 Treat this page as historical context, not current guidance.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: Must the advertising disclaimer appear inside each individual lawyer ad?

A: Per the opinion, no. The Commission concluded a single disclaimer displayed prominently across the bottom of a page of multiple ads can satisfy Rule 7.2(e), so long as it clearly relates to the ads.

Q: What is the test for whether a page-bottom disclaimer is sufficient?

A: The opinion stated the disclaimer must be displayed contiguous with the advertising in a prominent manner that leaves no doubt it relates to the advertisements, consistent with the disclaimer's purpose of dissipating consumer confusion or deception.

Q: Does the opinion approve any page-bottom disclaimer placement generally?

A: No. The opinion limited its conclusion to the facts presented and noted that the submitted disclaimer language was outdated and should be conformed to the current rule.

Background and rules framework

The opinion interprets Rule 7.2 (Model Rule 7.2, advertising), specifically the disclaimer requirement of Ala. R. Prof. C. 7.2(e), of the Alabama Rules of Professional Conduct, against the consumer-protection rationale recognized in lawyer-advertising case law.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.2 / Ala. R. Prof. C. 7.2(e) (advertising; required quality-of-services disclaimer)

Cases:

• In re R.M.J., 455 U.S. 191 (1982), purpose of advertising disclaimers is to dissipate consumer confusion or deception

See also

• AL Ethics Op. 1992-23: funding a solo practitioner's advertising in a referral arrangement
• AL Ethics Op. 1993-15: union-endorsed firm advertising

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-14/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-92-14.pdf

Original opinion text

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

ETHICS OPINION

RO-92-14

QUESTION:

The Huntsville Times would like to begin publishing a lawyer's directory in their newspaper each Tuesday. It would appear on one or two pages of the newspaper and would contain numerous short lawyer advertisements. They have submitted two proposals. The first format, which is attached as Exhibit "A", contains the disclaimer in very small print at the bottom of each of the advertisements. The other format, attached as Exhibit "B", contains the disclaimer in large print across the bottom of the page. The marketing manager of The Huntsville Times believes that repeating the disclaimer in each individual advertisement is a little silly and that it is much more effective to place the disclaimer in larger print across the bottom of the page. ______ represents the newspaper and has requested the Disciplinary Commission review both formats. They would like to print format "B" with the disclaimer across the bottom of the page but want to be able to assure the advertisers that the format meets the requirement of the rule.

ANSWER:

It is the view of the Disciplinary Commission that the format contained in Exhibit "B" does meet the requirement of Rule 7.2(e) as long as the disclaimer is prominently displayed.

Rule 7.2(e) of the Rules of Professional Conduct requires that:

"Rule 7.2 Advertising

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

(e) No communication concerning a lawyer's services shall be published or broadcast, unless it contains the following language which shall be clearly legible or audible, as the case may be: 'No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.'"

The question here is whether this language actually requires the disclaimer to be in the body of the advertisement or whether it can be displayed once on a page containing several lawyer advertisements.

The purpose of including a disclaimer in a lawyer advertisement is to dissipate the possibility of consumer confusion or deception [In re R.M.J., 455 U.S. 191, 201 (1982)]. This purpose may be accomplished if the disclaimer is displayed contiguous with the advertisement in a prominent manner which leaves no doubt that it is clearly relating to the advertisement. It is the view of the Commission that the language "unless it contains the following language" of the rule does not mean that the disclaimer must be contained within the perimeters of the advertisement. It is sufficient if it is presented in such a manner there can be no question that it relates to the advertisement.

Because of the diversity in which the disclaimer could be displayed on a single page containing multiple lawyer advertisements, this opinion is limited to the facts presented here. It is also noted that the language of the disclaimer in Exhibit "B" is not current and should be changed to reflect the language of the current rule.

RWN/vf

7/22/92