Can a lawyer run a newspaper ad for personal injury work that asks 'INJURED?', promises to 'fight for you,' and offers a free consultation?

Plain-English summary

A lawyer asked whether a proposed newspaper advertisement was permissible. The ad asked "INJURED? Who's on your side when the insurance company decides how much to pay you for your injury?", said the firm could "help you get as much money as you should," offered a free consultation ("You may have a good case and not know it"), and proclaimed "WE WILL FIGHT FOR YOU," with the firm's name, address, and phone number.

The Commission answered yes. As the Reporter's Notes to Rule 3.9(a) indicate, Rule 3.9 recognizes the right to advertise and forbids only practices improper in any context. Rule 3.9(a) bars public communications containing a false, fraudulent, misleading, or deceptive statement or claim, defined in Rule 3.9(b) to include a material misrepresentation, an omission of a material fact, a statement likely to create an unjustified expectation, a claim of specialization beyond Rule 3.8, an impression of improper influence, or an implication likely to mislead a reasonable person. The Commission found the ad violated none of these: it made no material misrepresentation or omission; it did not create an unjustified expectation, noting it said "you may have a good case"; it did not state or imply that the firm specializes in or limits its practice to personal injury matters; and it conveyed no impression of improper influence or likelihood of deceiving a reasonable person.

The Commission also found no violation of Rule 3.9(c), which prohibits public communications intended or likely to result in legal action merely to harass or maliciously injure, or that appeal primarily to fear, greed, desire for revenge, or similar emotion. While the ad was no doubt intended to have some emotional impact, the Commission did not believe it violated the letter or purpose of Rule 3.9(c), which targets maliciously motivated communications or those designed to appeal to baser human emotions. The advertisement was therefore permissible.

Currency note

This opinion was issued in 1984, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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: Could a lawyer run a 'WE WILL FIGHT FOR YOU' personal injury ad in 1984 Maine?

A: The opinion concluded yes. The advertisement was permissible because it was not false, misleading, or deceptive under Rule 3.9(a) or (b), and did not improperly appeal to emotion under Rule 3.9(c).

Q: Did the ad's emotional tone make it improper?

A: The opinion concluded it did not. Although the ad was intended to have some emotional impact, the Commission found it did not appeal primarily to fear, greed, or revenge as Rule 3.9(c) prohibits.

Q: Did saying the firm could get 'as much money as you should' create an unjustified expectation?

A: The opinion concluded no. Read as a whole, and given the hedge "you may have a good case," the ad did not create an unjustified expectation under Rule 3.9(b)(3).

Q: Did the ad improperly imply specialization?

A: The opinion concluded no. The ad did not represent that the firm's practice was limited to or specialized in personal injury matters, so it did not run afoul of the specialization limits tied to Rule 3.8.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.9 (publicity, advertising, and solicitation), including the false-or-misleading standards in 3.9(a) and 3.9(b), the specialization reference in Rule 3.8, and the "other improper public communication" provision in 3.9(c). These correspond to ABA Model Rule 7.1 (communications about a lawyer's services) and Model Rule 7.2 (advertising).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 (communications concerning a lawyer's services); Model Rule 7.2 (advertising)
• Maine Bar Rule 3.9 (3.9(a), 3.9(b), 3.9(c)) and Rule 3.8 (specialization)

See also

• Maine Ethics Op. 53: 'In Association With' Letterhead
• ABA Formal Op. 501: Solicitation Under Rule 7.3
• TX Ethics Op. 133: Lawyer Office Window Signs

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89684

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: May 10, 1984

Question

Is it permissible under the Maine Bar Rules for a lawyer to publish the following advertisement in a local newspaper:

INJURED? Who's on your side when the insurance company decides how much to pay you for your injury?

We can work for you and help you get as much money as you should.

You can come in for a free consultation. You may have a good case and not know it.

WE WILL FIGHT FOR YOU

Name of Law Firm
Attorneys at Law
Address
Telephone Number

Opinion

The question presented is answered in the affirmative. Under the Maine Bar Rules it is permissible for a lawyer to publish the advertisement in a local newspaper.

As the Reporter's Notes to Rule 3.9(a) indicate, Rule 3.9 "recognizes the right to advertise in general and forbids only those practices that would be regarded as improper in any context." Consistent with that approach, Rule 3.9(a) prohibits a lawyer from knowingly using any form of public communication containing "a false, fraudulent, misleading, or deceptive statement or claim." Rule 3.9(b) defines "a false, fraudulent, misleading, or deceptive statement or claim" as including, without limitation, a statement or claim that:

• Contains a material misrepresentation of fact or law;

• Omits to state any material fact necessary to make the statement, in the light of all circumstances, not misleading;

• Is intended or is likely to create an unjustified expectation;

• States or implies that a lawyer is a specialist other than as permitted by Rule 3.8;

• Is intended, or is likely, to convey the impression that the lawyer is in a position to influence improperly any court, tribunal, or other public body or official; or

• Contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived thereby, or fails to contain reasonable warnings or disclaimers necessary to make the representation or implication not deceptive.

It is the opinion of the Commission that the advertisement at issue does not constitute false advertising under Rule 3.9(a) or (b). Specifically, the advertisement does not contain a material misrepresentation of fact or law or omit to state any material fact (subsections (b)(1) and (2)). Nor can it be said that the advertisement read as a whole is intended or likely to create an unjustified expectation (subsection (b)(3)). In that regard, it is noted that the advertisement states that "you may have a good case . . ." The advertisement neither states nor implies that the law firm specializes in personal injury matters (subsection (b)(4)). In that regard, it is noted that the advertisement does not represent that the law firm's practice is limited to personal injury matters, a representation, which if made, might improperly imply specialization. Finally, the advertisement does not convey the impression that the law firm is in a position to wield "improper influence" (subsection (b)(5)) or contain a representation or implication that is likely to cause a reasonable person to misunderstand or be deceived thereby (subsection (b)(6)).

The Commission is further of the opinion that the advertisement at issue does not constitute "other improper public communication" under Rule 3.9(c). That provision prohibits a lawyer from using any form of public communication that:

• Is intended or is likely to result in a legal action being taken, or a legal position being asserted, merely to harass or maliciously injure another; or

• Appeals primarily to fear, greed, desire for revenge, or similar emotion.

The Reporter's Notes to Rule 3.9(c) state that "Rule 3.9(c) is intended to prohibit public communications that, although not a violation of Rule 3.9(a), are maliciously motivated or designed to appeal to the baser human emotions." While the advertisement no doubt is intended to have some emotional impact, the Commission does not believe that the advertisement is violative of the letter or purpose of Rule 3.9(c).

In sum, it is the opinion of the Commission that the advertisement is permissible under the Maine Bar Rules.