COBAR October 17, 1987

Can a Colorado lawyer advertise as 'experienced' in personal injury or other litigation areas without substantial trial experience?

Short answer: The opinion concluded that a lawyer who advertises must be or promptly become competent in the advertised area, that a lawyer without substantial trial experience misleads the public by claiming to be 'experienced' in litigation-heavy areas, that a lawyer who is likely at the time of advertising to refer resulting cases to more experienced counsel must disclose that, that no referral or forwarding fee may be taken for a mere referral, and that advertised clients are owed the same diligence and zealous advocacy as any other client.

Apply this to your situation

This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

Opinion 76 (adopted October 17, 1987) set out guidelines for lawyer advertising, prompted by facts resembling Matter of Zang, 741 P.2d 267 (Ariz. 1987): a two-lawyer firm advertised its skill in preparing personal injury cases "for trial" though no firm lawyer had tried such a case to conclusion, and the firm settled most claims and referred the rest out for trial. The Committee began from the premise that advertising is constitutionally protected (Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and later cases) and serves the public's interest in information, but that it also creates responsibilities to the public under the Code of Professional Responsibility.

The Committee concluded, under DR 2-101(A) and (B), that advertising may not contain any false, fraudulent, misleading, deceptive, or unfair statement, including by omission of disclaimers needed to keep the advertisement from misleading a reasonable layperson. A lawyer must be competent or promptly become competent in any area in which the lawyer advertises; new or inexperienced lawyers may advertise so long as they meet the competence requirements of Canons 2 and 6, but a lawyer without substantial trial experience misleads the public by advertising as "experienced" in litigation-heavy areas such as personal injury, workers' compensation, products liability, and professional malpractice. A lawyer may acquire competence by associating with a competent lawyer (DR 6-101(A)(1)), but if at the time the advertisement is placed there is a likelihood the lawyer will later associate more experienced counsel to handle the resulting cases, that fact must be disclosed.

The Committee further concluded that a lawyer who refers an advertised case to another lawyer may not take a referral or forwarding fee; any fee division must comply with DR 2-107 (informed consent, overall reasonableness, division in proportion to services and responsibility), and a mere referral is neither "services" nor "responsibility" justifying a share. Lawyers who advertise must still represent each client zealously (Canon 7), may not settle advertised cases on terms worse than they would otherwise accept, and may not take on more cases than they can competently and diligently handle. Finally, lawyers may not hold themselves out as certified specialists except as permitted by the Colorado Supreme Court (DR 2-105(A)(4)), though they may state that they limit, concentrate, or prefer practice in a given area.

Currency note

This opinion was issued in 1987 under the former Colorado Code of Professional Responsibility, before the Colorado Rules of Professional Conduct took effect on January 1, 1993, and before Colorado's 2008 revisions to those rules. A 1995 addendum mapped the opinion to Rule 7.1 (false or misleading communications), Rule 7.2 (advertising), Rule 7.4 (fields of practice), Rule 1.1 (competence), Rule 1.3 (diligence), and Rule 1.5(d) (fee division). The Colorado advertising rules have been amended substantially since then, and Rule 7.4 has since been revised. 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: Could a new lawyer advertise in an area where the lawyer had no experience?

A: Yes, with limits. The opinion concluded that new or inexperienced lawyers may advertise and accept resulting clients so long as they are or promptly become competent (through study, investigation, or associating a competent lawyer) and otherwise follow the advertising guidelines.

Q: Could a lawyer advertise as "experienced" in personal injury without trial experience?

A: No. The opinion concluded that a lawyer without substantial trial experience who advertises as "experienced" in an area that typically involves litigation, such as personal injury, misleads the public, citing Matter of Zang.

Q: If a lawyer planned to refer advertised cases out for trial, did that have to be disclosed?

A: Yes. The opinion concluded that if at the time the advertisement is placed there is a likelihood the lawyer will associate more experienced counsel to handle resulting cases, that fact must be disclosed; a lawyer who advertises in a litigation area is expected to be able to handle the matter through trial.

Q: Could the lawyer take a referral fee for sending the case elsewhere?

A: No. The opinion concluded that a lawyer who refers an advertised case may not take a referral or forwarding fee; any division of fees had to satisfy DR 2-107, and a mere referral does not count as services or responsibility justifying a share.

Background and rules framework

The opinion interpreted the then-governing Colorado Code of Professional Responsibility, principally DR 2-101 (advertising and false or misleading claims), DR 2-105 (limitation of practice and specialization), DR 2-107 (division of fees among lawyers), and DR 6-101 (competence), with Canons 2, 6, and 7. It rested on the First Amendment commercial-speech line beginning with Bates. The 1995 addendum and the modern Model Rules analogs are Rule 7.1 (communications about a lawyer's services), Rule 7.2 (advertising), Rule 7.4 (fields of practice and specialization), Rule 1.1 (competence), and Rule 1.5 (fee division).

Citations and references

Rules of Professional Conduct:

Colo. Code of Professional Responsibility DR 2-101, DR 2-105(A)(4), DR 2-107, DR 6-101; Canons 2, 6, 7 (governing rules at issuance)
Colo. RPC 7.1 / Model Rule 7.1 (false or misleading communications; current analog)
Colo. RPC 7.2 / Model Rule 7.2 (advertising)
Colo. RPC 7.4 / Model Rule 7.4 (communication of fields of practice and specialization)
Colo. RPC 1.1, 1.5(d) / Model Rules 1.1, 1.5 (competence; division of fees)

Cases:

Bates v. State Bar of Arizona, 433 U.S. 350 (1977), constitutional protection for lawyer advertising
In re R.M.J., 455 U.S. 191 (1982), permissible limits on lawyer advertising
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), required disclaimers and omissions
Matter of Zang, 741 P.2d 267 (Ariz. 1987), discipline for advertising trial experience the firm lacked

Other opinions cited:

ABA Formal Op. 204 (1940); ABA Informal Op. 1392 (1977): forwarding fees and division of fees

Source

Landing page: https://www.cobar.org/ethicsopinions
Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_76_2011.pdf

Get today's answer for your situation

You just read a 1987 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.