Can a lawyer advertise routine-service fees together with a discount for members of any identifiable group of at least 100 people?

Plain-English summary

An attorney asked whether, consistent with the rules, a New Jersey lawyer may advertise his fees for routine legal services in print media and at the same time advertise that he will provide those services to members of identifiable groups of at least 100 members at a 25% reduction, on the theory that group arrangements lower the cost of producing legal services. The inquirer's view was that the post-Bates amendments to DR 2-101 et seq. did not prohibit this because there was no direct solicitation and no claim about the quality of services.

The Committee parsed the rules. DR 2-101 prohibits false, fraudulent, misleading, or deceptive statements about fees, without specifying to whom an advertisement may be addressed, and contained no direct prohibition of the proposed advertisement. DR 2-103 governs solicitation, including subsection (D), which permits certain enumerated organizations registered with the Supreme Court under DR 2-103(D)(4)(g) to employ, recommend, or pay an attorney for services to their members.

The Committee concluded the proposed advertisement was designed to encourage individuals to form a group for the purpose of obtaining a fee reduction by employing the attorney, and that the disciplinary rules had not gone so far as to permit that. While it had approved participation in prepaid legal-services plans nationally (Opinion 383) and locally (Opinion 455), nothing in those opinions sanctioned this advertisement. Because the proposed advertisement would circumvent DR 2-103(D), particularly the registration requirement of subsection (4)(g), the Committee disapproved it.

Currency note

This opinion was issued in 1980, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The advertising and solicitation rules it applied (DR 2-101, DR 2-103) now correspond broadly to RPC 7.2 and RPC 7.3. Treat this page as historical context, not current guidance.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 advertise a group discount open to any 100-member group?

A: No. The opinion disapproved it, concluding the advertisement was designed to encourage forming a group to obtain a fee reduction, circumventing DR 2-103(D).

Q: Why didn't the post-Bates advertising rules permit it?

A: The Committee read DR 2-103(D) as confining cooperation to registered legal-services organizations, so an open group-discount ad evaded the registration requirement the Supreme Court imposed.

Q: Did the Committee's approval of prepaid plans help?

A: No. It said nothing in Opinions 383 or 455 approving prepaid legal-services plans sanctioned this advertisement.

Background and rules framework

The opinion applied DR 2-101 (advertising) and DR 2-103 (solicitation), especially subsection (D)(4)(g) requiring registration of legal-services organizations. In current New Jersey terms the analysis maps onto RPC 7.2 (advertising and organizations recommending a lawyer) and RPC 7.3 (solicitation). The Committee's line was that fee advertising is permitted, but an offer structured to drive group formation for discounts evades the controls on registered plans.

Citations and references

Rules of Professional Conduct:

• MR 7.2 / NJ RPC 7.2 (advertising; organizations recommending a lawyer); decided under former DR 2-101, DR 2-103(D)
• MR 7.3 / NJ RPC 7.3 (solicitation); decided under former DR 2-103

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977)

Other opinions cited:

• NJ ACPE Opinion 383, 100 N.J.L.J. 1205 (1977) (nationwide prepaid legal-services plan approved)
• NJ ACPE Opinion 455, 105 N.J.L.J. 441 (1980) (local Bar Foundation financing plan approved)

See also

• NJ ACPE Op. 488: Furnishing Fee Information to a Group Legal-Services Plan
• NJ ACPE Op. 468: Advertising in Various Forms After Bates
• NJ ACPE Op. 481: For-Profit Referral Services and Lay-Owned Advertising Programs

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp457-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

106 N.J.L.J. 98, July 31, 1980

OPINION 457

Advertising Legal Fees - With Reduction to Members of Large Group

An attorney inquires whether a New Jersey lawyer may advertise the fees he charges for routine legal services in print media in conformity to DR 2-101 and, at the same time, advertise that in accordance with DR 2-103, he will provide such services for members of identifiable groups of at least 100 members at a 25% reduction because group arrangements permit such reduction in the costs of producing legal services, without thereby violating the provisions of DR 2-103, prohibiting solicitation?

It is the attorney's view that the amendments to the Disciplinary Rules (DR 2-101 et seq.) adopted by our Supreme Court after the decision by the United States Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), do not prohibit such advertising, in that no direct solicitation or advertising as to quality of legal services is involved. DR 2-101 deals with publicity and advertising. The approach of that rule is to prohibit false, fraudulent, misleading or deceptive statements relating to the fee or any other aspect of a proposed professional engagement. The ruling does not specify to whom a proper advertisement may be addressed, whether to an individual or a group of individuals. DR 2-103 deals with solicitation of professional employment. That rule deals essentially with direct solicitation DR 2-103(A), and promotional activity by an organization which furnishes legal services to its members, DR 2-103(B). Subsection (D) broadens the scope of subsection (B) by permitting certain enumerated organizations to employ, recommend or pay an attorney for services rendered to its members. Again, these rules do not reach the question posed by the inquirer. His proposed advertisement is not addressed to any organization formed for the purpose of providing legal services for its members and registered with the Supreme Court pursuant to DR 2-103(D)(4)(g). It must also be said that there is no direct prohibition of the proposed advertisement in this rule.

It would appear to us that the proposed advertisement is designed to encourage individuals to form a group for the purpose of obtaining a reduction in fees by the employment of the attorney. It is clear to us that our disciplinary rules have not gone so far as to permit this and, while we have recently approved participation in prepaid legal services plans nationally, Opinion 383, 100 N.J.L.J. 1205 (1977) and locally Opinion 455, 105 N.J.L.J. 441 (1980), nothing we said in those opinions would sanction the proposed advertisement. As pointed out above, the relaxation of the solicitation rules by our Supreme Court as evidenced by DR 2-103 is directed toward cooperation with organizations furnishing legal services for its members, and it is evident that the Supreme Court wished to maintain close control over even those organizations by limiting the type with which an attorney might cooperate.

The proposed advertisement would circumvent the provisions of DR 2-103(D) and in particular the requirements of subsection (4)(g). Accordingly, such advertisement is disapproved.