Can a Mississippi lawyer advertise 'No recovery, no fee' when clients will still owe costs and expenses regardless of the outcome?

Plain-English summary

The Committee addressed a lawyer who wanted to advertise in print and on television that "No fee will be charged until your case is won" or "No recovery, no fee," without mentioning expenses, while intending that some or all clients would pay or reimburse out-of-pocket expenses and costs regardless of outcome. The request raised two questions: whether omitting the charge for expenses or costs makes the ad false, deceptive, or misleading, and whether "until your case is won" is likely to create unjustified expectations about results.

The opinion applied Rule 7.1(a), which bars a false, deceptive, or misleading communication, including one that omits a fact necessary to keep the statement as a whole from being materially misleading, and Rule 7.1(b), which bars creating an unjustified expectation about results. It concluded the proposed ad is misleading in two respects. First, the "no fee" and "no recovery, no fee" statements are likely to give potential clients the mistaken impression they will be charged nothing if the case is lost, because the public does not distinguish "fee" from "expenses" or "costs," and even lawyers sometimes use the terms interchangeably.

Second, the opinion concluded that "No fee will be charged until your case is won" may prompt an unjustified expectation that the lawyer is exceptionally successful at winning cases, and that this statement, alone or with the "no fee" statement, violates Rule 7.1(b).

In practice

The opinion holds that contingent-fee advertising using "no recovery, no fee" language is misleading under Rule 7.1 when clients remain responsible for costs and expenses and the ad omits that fact. Per the opinion, the analysis turns on two points: the omission of the cost/expense liability misleads a public that does not separate fees from costs (Rule 7.1(a)), and "until your case is won" can imply an unjustified expectation of success (Rule 7.1(b)).

Common questions

Q: Can a lawyer advertise "no recovery, no fee"?

A: Per the opinion, not in the form proposed. Where the client still owes costs and expenses regardless of outcome, omitting that fact makes the "no fee" message misleading under Rule 7.1(a).

Q: Why is omitting the cost obligation a problem?

A: The opinion reasoned that the public is not likely to distinguish "fee" from "expenses" or "costs," so a "no fee" ad creates the mistaken impression the client will pay nothing if the case is lost.

Q: Is "until your case is won" itself a problem?

A: The opinion concluded yes; that phrase may prompt an unjustified expectation that the lawyer is exceptionally successful at winning cases, violating Rule 7.1(b).

Background and rules framework

The opinion interprets Mississippi Rule of Professional Conduct 7.1, specifically 7.1(a) (false, deceptive, or misleading communications, including misleading omissions) and 7.1(b) (unjustified expectations about results), corresponding to Model Rule 7.1. It applied both subsections to contingent-fee advertising that omitted the client's continuing liability for costs.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 7.1(a) (false, deceptive, or misleading communications; misleading omissions) (cf. Model Rule 7.1).
• MRPC 7.1(b) (unjustified expectations about results) (cf. Model Rule 7.1).

See also

• MS Bar Ethics Op. 168: Publicizing a Verdict in the Newspaper
• MS Bar Ethics Op. 202: Lawyer's Economic Interest in a Client's Product

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/163/
• Original PDF: https://www.msbar.org/media/1046/et_op_163-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 163

OF THE MISSISSIPPI BAR

RENDERED June 23, 1989

AMENDED April 06, 2013

ADVERTISING -- COMMUNICATIONS CONCERNING A LAWYER'S SERVICES - In advertising her services, a lawyer shall not state, "No fee will be charged until your case is won" or "No recovery -- No Fee," or other words to that effect, when the lawyer intends some or all of her clients to pay, or reimburse her, for out-of-pocket expenses or costs regardless of the outcome of the matter, and when in the context used, such language would be misleading.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following hypothetical facts, submitted by a member of the Mississippi State Bar:

Lawyer A desires to advertise his services in both the printed and television media. In his advertisements, Lawyer A desires to state that "No fee will be charged until your case is won," or "No recovery -- No fee:" or other words to that effect. The proposed advertisement does not mention expenses. The lawyer intends for some or all of his clients to pay, or reimburse the lawyer, for out-of-pocket expenses and costs regardless of the outcome of the matter.

This request poses two questions. First, does the failure to mention the proposed charge for "expenses" or "costs" make the proposed communication false, deceptive, or misleading? Second, is the reference to "until your case is won" likely to create unjustified expectations about results the lawyer can achieve?

The Mississippi State Bar has recognized that there are limits to the restrictions that can or should be made upon a lawyer's communications designed to apprise the public of available legal service. However, there are restrictions that may be and have been imposed. For example, Rule 7.1(a) of the Mississippi Rules of Professional Conduct (MRPC) prohibits advertising that constitutes "a false, deceptive or misleading communication about the lawyer or the lawyer's services. A communication is false, deceptive or misleading if it ...contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading . . . ." Rule 7.1(b), MRPC, prohibits advertising that creates an unjustified, false or misleading expectation about results the lawyer can achieve.
The proposed advertisement is actually or potentially misleading in two respects. First, the "no fee" and "no recovery -- no fee" statements are likely to give the potential client the mistaken impression that he or she will be charged nothing if the case is not won. The public is not likely to distinguish between "fee" on the one hand, and "expenses" or "costs" on the other. Indeed, the legal profession itself sometimes uses the words interchangeably or assumes them to have overlapping meanings.

Finally, the proposed statement, "No fee will be charged until your case is won," also may prompt an unjustified expectation that the lawyer is exceptionally successful in winning his or her cases. This statement, standing alone or in conjunction with the "no fee" statement, violates Rule 7.1(b), MRPC.