Is a law firm's newspaper ad about workers' comp deadlines improper if it overstates the law, and does broad distribution count as solicitation?

Plain-English summary

The committee considered a newspaper ad that told readers certain work-related injuries would no longer be compensable and that workers in pain should file a claim regardless of any traumatic event. It was asked whether the ad was misleading and whether it improperly solicited claims. The committee answered that the ad was misleading but did not improperly solicit.

On the first question, the committee applied Rule 7.1, which bars false or misleading communications about a lawyer's services, including communications that contain a material misrepresentation, omit a fact necessary to keep the statement from being materially misleading, or create an unjustified expectation about results. The committee found it could be argued that the ad's failure to mention that repetitive-trauma activities remained compensable under the Occupational Disease Act was misleading, because readers might infer that valuable reparations would be abandoned if they did not contact the attorneys by July 1. It also found the ad could create the unjustified expectation that an award would follow from filing before July 1, and that suggesting pain alone should trigger a claim could likewise create unjustified expectations.

On the second question, the committee applied Rule 7.3, which restricts direct solicitation of prospective clients for pecuniary gain but excludes advertising circulars distributed generally to persons not known to need particular legal services. The committee acknowledged the line between permissible advertising and impermissible solicitation is often hard to draw, but concluded that, although a close call, the ad's wide general dissemination resembled advertising more than solicitation. It stressed that the ad still had to satisfy Rule 7.1's bar on false or misleading content.

Currency note

This opinion was issued in 1987, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct. The lawyer-advertising and solicitation rules have been amended repeatedly since, in Montana and in the Model Rules. Treat this page as historical context, not current guidance.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: Why was the ad considered misleading?

A: The opinion states that under Rule 7.1 the ad omitted that repetitive-trauma injuries remained compensable under the Occupational Disease Act and implied that filing before July 1 would produce an award, creating an unjustified expectation about results.

Q: Can an ad suggest that pain alone should prompt filing a claim?

A: The opinion treats that suggestion as capable of creating unjustified expectations under Rule 7.1, contributing to its conclusion that the ad was misleading.

Q: Was the broad newspaper distribution improper solicitation?

A: No. The opinion concludes that the ad's wide general dissemination resembled advertising more than solicitation under Rule 7.3, though it remained subject to Rule 7.1's bar on false or misleading content.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 7.1 (Communications Concerning a Lawyer's Services; Model Rule 7.1) and Rule 7.3 (Direct Contact With Prospective Clients; Model Rule 7.3), distinguishing general advertising from targeted solicitation.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 7.1 (communications concerning a lawyer's services) / Model Rule 7.1
• Mont. R. Prof. Cond. 7.3 (direct contact with prospective clients) / Model Rule 7.3

See also

• State Bar of Montana Ethics Op. 941221: Solicitation by Targeted Mailing
• State Bar of Montana Ethics Op. 951230: Permissible Direct Contact With a Prospective Client
• ABA Formal Op. 10-457: Lawyer Websites

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/870709.pdf

Original opinion text

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

QUESTIONS PRESENTED:

1. Is a newspaper ad misleading if it:

(a) misstates the nature of changes in the definition of injury; specifically, it indicates that certain work-related injuries are no longer compensable when, in fact, they remain compensable under the Occupational Disease Act, and

(b) states that workers with pain should file a claim irrespective of the occurrence of a traumatic event?

2. Does such an ad improperly solicit claims?

ANSWER:

1. Yes.

2. No.

ANALYSIS:

1. Rule 7.1, Communications Concerning a Lawyer's Services, provides:

A lawyer shall not make 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 lawyer's services with other lawyer's services, unless the comparison can be factually substantiated.

All communications, in whatever form, are governed by this rule. Statements about a lawyer's services should be truthful, irrespective of the means used to make them known. Paragraph (a) specifically provides that statements that omit necessary facts can be considered false or misleading. The committee agrees that it can be argued that failure to mention that repetitive trauma activities are now compensable under the Occupational Disease Act is misleading. It may be inferred that if potential claimants did not contact the attorneys by July 1, valuable reparations would be abandoned.

Paragraph (b) precludes the advertisements about results obtained such as the amount of a damage award. Such information may create the expectation that similar results can be obtained without reference to specific situations. The ad here may have created the unjustified expectation that if a claim were filed before July 1, an award would be forthcoming, otherwise not. Similarly, the suggestion that pain alone should trigger the filing of a claim could create unjustified expectations.

2. Rule 7.3, Direct Contact With Prospective Clients, provides:

A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term solicit includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.

The internal definition of solicit seems to permit this particular advertisement. The line between permissible advertising and impermissible solicitation is often hard to draw. Here, although perhaps a close call, the wide general dissemination of this ad seems to resemble advertising more than solicitation. But, the advertisement still must not be false or misleading. (See above).

                                                                         THIS OPINION IS ADVISORY ONLY