Can a lawyer run TV commercials using actors playing fictional satisfied clients based on the lawyer's representative cases?

Plain-English summary

A lawyer wanted to run television commercials with fictional scripts dramatized by actors playing satisfied clients. The scripts were based on representative cases and outcomes the lawyer had achieved, and each fictional client told viewers why he or she used the lawyer and recommended the lawyer's services. The inquiry asked whether using actors to dramatize fictional satisfied clients violated the Rules of Professional Conduct.

The opinion concluded that it did. Commercial dramatizations of fictional cases are misleading communications about the lawyer and the lawyer's services in violation of Rule 2.1, which prohibits false or misleading communications. Under Rule 2.1(a), a communication is misleading if it contains a material misrepresentation of fact or omits a fact necessary to keep the statement, as a whole, from being materially misleading. The opinion reasoned that viewers do not know they are seeing actors rather than the lawyer's actual clients, and even a viewer who recognizes actors would not know that the characters, cases, and outcomes are fictional. The commercials misrepresent fact both because they use actors and because they do not depict actual events or cases the lawyer handled. On the second question, the opinion concluded that a written "Dramatization" disclaimer on screen would not remedy the violation.

Currency note

The North Carolina State Bar has overruled this opinion; the State Bar's editor's note states it is overruled by Rule 7.1(b). It is retained here for historical research only and is not current guidance. This opinion was also issued in 1993, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 use actors as fictional clients in TV ads?

A: The opinion said no. It held that dramatizations of fictional cases using actors as satisfied clients are materially misleading communications in violation of Rule 2.1. The State Bar's editor's note states the opinion is now overruled by Rule 7.1(b).

Q: Why did the opinion treat the ads as misleading?

A: The opinion reasoned that viewers cannot tell the actors are not real clients, and could not know the characters, cases, and outcomes were fictional, so the commercials misrepresented fact under Rule 2.1(a).

Q: Would a "Dramatization" disclaimer have fixed it?

A: No. The opinion concluded that an on-screen "Dramatization" disclaimer would not remedy the violation it found under Opinion #1.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services)
• North Carolina Rule 2.1, Rule 2.1(a)

See also

• NC Ethics Op. RPC 161: television commercials for legal services
• NC Ethics Op. 2000 Formal Op. 6: implying early settlement in a TV advertisement
• NC Ethics Op. 2000 Formal Op. 1: advertising a verdict record

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-164/

Original opinion text

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

Editor's Note: This opinion is overruled by Rule 7.1(b).

Inquiry #1:

Attorney A wants to advertise on television. The scripts for the commercials are fictional and will be dramatized by actors depicting fictional clients of Attorney A. The scripts are based on representative cases of Attorney A and outcomes that Attorney A has achieved in actual cases. In each script, a fictional client of Attorney A tells the viewer why he or she used Attorney A's services and that Attorney A achieved a good outcome for the fictional client. The fictional client then recommends the service of Attorney A. Is the use of a fictional script based on representative cases of Attorney A and an actor dramatizing the role of a satisfied client a violation of the Rules of Professional Conduct?

Opinion #1:

Yes. Commercial dramatizations of fictional cases are misleading communications about Attorney A and Attorney A's services in violation of Rule 2.1. Rule 2.1 prohibits false or misleading communications about a lawyer or the lawyer's services. A communication about a lawyer or the lawyer's services is misleading if it contains a material misrepresentation of fact or omits a fact necessary to make the statement, considered as a whole, not materially misleading. Rule 2.1(a). Viewers of Attorney A's commercials do not know that they are seeing actors and not Attorney A's actual clients. Even if a viewer is astute enough to realize the commercial contains actors, the viewer would not know that the characters, cases and outcomes portrayed are fictional. The commercials are misrepresentations of fact not only because they are dramatized by actors but also because they do not describe or depict actual events or cases handled by Attorney A.

Inquiry #2:

In the event that you find a violation of the Rules of Professional Conduct, would the use of a written disclaimer on the screen, such as "Dramatization," remedy such violation?

Opinion #2:

No. See Opinion #1.