Can a New York attorney advertisement portray a fictitious law firm, such as arguing against a made-up opposing counsel?

Plain-English summary

The committee was asked whether an attorney advertisement may portray a fictitious law firm, for example by depicting the advertising lawyer arguing against a fictitious opposing counsel (paragraph 1).

Rule 7.1(c)(2) states that an advertisement may not "include the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case." Read strictly, the first clause would bar any portrayal of a fictitious firm. But the committee read the rule narrowly, treating the word "otherwise" in the final clause as a limiting principle: portrayals of a fictitious firm are prohibited only when they imply that lawyers are associated in a firm with the advertising lawyer when that is not so. That reading best fits the rule's purpose of barring misleading techniques; the committee noted that Comment [4] permits attention-getting devices like music and graphics so long as they are not false, deceptive, or misleading (paragraphs 2 through 4).

The committee found support in Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010), which addressed a First Amendment challenge to the advertising rules. The Second Circuit accepted the Attorney General's narrowing construction that Rule 7.1(c)(2) applies only to situations where lawyers from different firms give the misleading impression that they are from the same firm (the "Dream Team" example), and on that reading upheld the provision as reaching only actually misleading speech. After Cahill, the Appellate Divisions amended the rules but left the text of Rule 7.1(c)(2) unchanged, so the committee read the rule in light of that narrowing construction (paragraphs 5 through 6).

The committee added that any portrayal of a fictitious firm must comply with other rules, particularly Rule 7.1(c)(3), which requires disclosure when actors portray a judge, lawyer, firm members, or clients, or when fictionalized events or scenes are used. That disclosure requirement reduces the risk that viewers will be misled into thinking a portrayed firm is real (paragraph 7).

In practice

The opinion holds that, under Rule 7.1(c)(2) as it stood at the time, an attorney advertisement may portray a fictitious law firm, such as a mock opposing counsel, provided the advertisement is not misleading as to the membership of the advertiser's own firm. The committee read the rule's prohibition to reach only portrayals that imply lawyers are associated in a firm when they are not, a reading it grounded in the rule's anti-misleading purpose and in the narrowing construction the Second Circuit accepted in Alexander v. Cahill. It also pointed to Rule 7.1(c)(3)'s disclosure requirement for actors and fictionalized scenes as a further safeguard against viewer confusion.

Common questions

Q: Can my ad show me arguing against a made-up opposing law firm?

A: Yes. The committee read Rule 7.1(c)(2) to permit portraying a fictitious firm so long as the ad does not mislead viewers about who is associated in the advertiser's own firm (paragraphs 3 through 4, 8).

Q: Doesn't Rule 7.1(c)(2) flatly ban "portrayal of a fictitious law firm"?

A: Read literally it appears to, but the committee adopted the narrowing construction accepted in Alexander v. Cahill: the bar reaches only portrayals implying lawyers from different firms are in the same firm, such as a "Dream Team" (paragraphs 3, 5).

Q: What else do I have to do if I use a fictionalized scene or actors?

A: Rule 7.1(c)(3) requires disclosure when actors portray a judge, the lawyer, firm members, or clients, or when fictionalized events or scenes are used (paragraph 7).

Background and rules framework

The opinion interprets New York Rule 7.1(c)(2) (the bar on portraying a fictitious firm or implying a non-existent association) and Rule 7.1(c)(3) (the disclosure requirement for actors and fictionalized scenes), corresponding to ABA Model Rule 7.1 on communications about a lawyer's services. The analysis turns on the narrowing construction the Second Circuit adopted in Alexander v. Cahill to avoid a First Amendment problem.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NY Rule 7.1(c)(2): portrayal of a fictitious law firm and implied association
• NY Rule 7.1(c)(3): disclosure when actors or fictionalized scenes are used

Cases:

• Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010), accepting a narrowing construction of the fictitious-firm rule to reach only actually misleading advertising
• Ward v. Rock Against Racism, 491 U.S. 781 (1989), adopting a narrowing construction to avoid unconstitutionality

See also

• NY State Bar Ethics Op. 1005: Misleading Superlatives in Lawyer Advertising
• NY State Bar Ethics Op. 920: Law Firm Name
• NY State Bar Ethics Op. 1095: Updating Advertising After a Firm Name Change

Source

• Landing page: https://nysba.org/ethics-opinion-883/