Can a lawyer advertise as a specialist in the legal problems of the elderly and offer reduced or no fees to seniors?

Plain-English summary

The inquirer asked whether he could advertise that he specialized in legal problems of the elderly (Social Security, Supplemental Security Income, Medicare, Medicaid, senior health insurance, problems following a spouse's death) and offered his services at a reduced fee, or at no fee to indigent seniors. He reasoned that, since lawyers could now advertise fields of expertise and the fees charged for specific matters, he should be able to advertise reduced fees for seniors who could afford them and no fee for those who could not.

The Committee reviewed the constitutional backdrop. Bates v. State Bar of Arizona, 433 U.S. 350 (1977), held lawyers must be permitted to advertise the fees they charge for routine services, finding such price advertising not inherently misleading. But the Committee noted that In re R.M.J., 102 S. Ct. 929 (1982), called Bates a narrow decision: false, deceptive, or misleading advertising remains subject to restraint, and because the public lacks sophistication about legal services, misstatements that might be overlooked elsewhere may be inappropriate in legal advertising. After Bates, New Jersey amended DR 2-101 to bar knowingly false, fraudulent, misleading, or deceptive representations about ability, background, or fees that might induce public reliance, including statements likely to create an unjustified expectation.

The Committee concluded the proposed advertising did not meet DR 2-101. Although it found no intent to deceive, it was concerned the advertising would mislead the unsophisticated senior, who has no way to know what a proper fee, let alone a proper reduced fee, would be, and might form expectations far beyond what the lawyer could anticipate. Where an advertisement sets forth no definite fee for an initial consultation, no fixed or contingent charge, no range of fees for specific services, no hourly rate, and no statement on credit arrangements, it is improper. The Committee also disapproved the inquirer's statement that he was a "specialist" in the indicated fields, citing DR 2-105(A)(2).

Currency note

This opinion was issued in 1982, 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. New Jersey's advertising rules and the standards for claiming specialization or certification have changed since this opinion. 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 the lawyer advertise reduced or free legal services for seniors?

A: Not as proposed. The opinion concluded the advertisement was misleading and improper because it promised reduced or no fees without stating any definite fee terms, creating an unjustified expectation.

Q: Why was a fee-reduction ad treated as misleading when fee advertising is allowed?

A: The opinion reasoned that, absent definite terms (consultation fee, fixed or contingent charge, range of fees, hourly rate, or credit arrangements), the unsophisticated senior could not gauge what a proper reduced fee was and might form expectations the lawyer never intended.

Q: Could the lawyer call himself a specialist in elder-law fields?

A: No. The opinion disapproved the "specialist" claim, citing DR 2-105(A)(2).

Background and rules framework

The opinion interpreted DR 2-101 (publicity and advertising) and DR 2-105(A)(2) (claims of specialization) as amended after Bates, before the 1984 adoption of the Rules of Professional Conduct. In current terms the analysis maps onto RPC 7.1 (false or misleading communications about a lawyer's services) and RPC 7.4 (communicating fields of practice and certification as a specialist).

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NJ RPC 7.1 (false or misleading communications)
• MR 7.4 / NJ RPC 7.4 (fields of practice and specialization claims)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (lawyers may advertise routine-service fees)
• In re R.M.J., 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982) (misleading legal advertising remains subject to restraint)

See also

• NJ ACPE Op. 500: Disclosing Personal-Injury Settlement Details to the Media
• NJ ACPE Op. 505: Advertising of Prepaid Legal Services

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp503-1.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.

110 N.J.L.J. 365, September 23, 1982

OPINION 503

Attorney Advertising Specialization in Legal Problems of the Elderly and Providing Services at a Reduced Fee in Certain Cases

The basic question is whether an attorney may advertise that he specializes in legal problems of the elderly (such as Social Security Supplemental Security Income, Medicare, Medicaid, Senior Health Insurance, problems brought about by the death of a spouse) and offers his services at a reduced fee (or at no fee to indigent seniors).

He says that attorneys are now permitted to advertise fields of expertise and states it is lawful to advertise the amount of fees for specific legal matters. He asks, "Why should he not be permitted to advertise reduced fees for seniors who can afford them or no fees for those who cannot afford to pay?"

Bates v. State Bar of Arizona, 433 U.S. 350 (1977), held that lawyers must be permitted to advertise the fees they charge for certain "routine" legal services. The Court concluded that this sort of price advertising was not "inherently" misleading and therefore could not be prohibited on that basis.

The Supreme Court of the United States in In re R.M.J., U.S. , 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982) has also said,

But the decision in Bates nevertheless was a narrow one. The Court emphasized that advertising by lawyers still could be regulated. False, deceptive, or misleading advertising remains subject to restraint and the Court recognized that advertising by the professions poses special risks of deception. Because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising. (footnote omitted) Id. at 935-36, 71 L. Ed. 2d at 72-3.

The Court suggested that claims as to quality or in-person solicitation might be so likely to mislead as to warrant restriction.

The New Jersey Supreme Court, after the Bates decision, amended DR 2-101, "Publicity and Advertising", and provided the following qualification:

(A) A lawyer shall not knowingly make any representation about his ability, background, or experience, or that of the lawyer's partner or associate, or about the fee or any other aspect of a proposed professional engagement, that is false, fraudulent, misleading, or deceptive, and that might reasonably be expected to induce reliance by a member of the public.

(B) Without limitation a false, fraudulent, misleading or deceptive statement or claim includes statement or claim which: ... (3) It is intended or is likely to create an unjustified expectation;

Subparagraph (5) in the above "relates to legal fees other than..." (It lists several paragraphs, (a) through (f), setting forth the parameters dealing with legal fees.)

It is clear that the inquirer has given little thought to the language of the Bates case, the R.M.J. case, or DR 2-101, paragraphs (A), (B) (3), (5) and (6), which deals with false, fraudulent, misleading, or deceptive statements, or contain a representation or implication that is likely to cause an ordinarily prudent person to misunderstand or be deceived and is likely to fail to contain reasonable warnings or disclaimers necessary to make a representation or implication not deceptive.

We are not dealing with any intention to deceive on the part of the lawyer. We are concerned that the proposed legal advertising is inappropriate for the so-called prudent, but in the terms of the U. S. Supreme Court, "unsophisticated" person who is likely to be misled and have an unjustified expectation of the fees and services.

When the advertisement sets forth no definite fee: A. For initial consultation; B. For fixed or contingent charges; C. For range of fees for specific legal services; D. For specified hourly rates; E. For availability of credit arrangements; it is improper advertising. The advertising in question is misleading and deceptive; it might reasonably be expected to induce reliance by a member of the public who has his own concept of the right to a reduced fee or no fee because of his particular financial circumstances. He does not know what is a proper fee, let alone a proper reduced fee, but he may have expectations far and beyond anything the inquirer could anticipate. In our opinion the proposed advertising does not meet the requirements of DR 2-101 and is therefore improper.

One other comment must also be made. Inquirer's statement that he is a specialist in the indicated fields is disapproved. Such advertising is not permitted. See DR 2-105(A)(2)