Are older Oklahoma ethics opinions about lawyer advertising and solicitation still reliable?

Plain-English summary

The committee answered a question about the effect of legal-ethics advisory opinions that predate significant changes in the law governing lawyer advertising and solicitation. It explained that liberalization began with Bates v. State Bar of Arizona, 433 U.S. 350 (1977), followed by a series of U.S. Supreme Court cases announcing further guidelines (In re Primus, Ohralik, In re R.M.J., Zauderer, Shapero, and Florida Bar v. Went For It). It noted that courts including the Oklahoma Supreme Court contributed to the changing body of law, citing State ex rel. Oklahoma Bar Association v. Schaffer, which recognized that states retain authority to regulate advertising shown to be inherently or actually misleading, and may impose carefully drawn restrictions no more sweeping than reasonably necessary to further substantial state interests.

The committee observed that Oklahoma responded with amendments codified in Rules 7.1, 7.2, 7.3, 7.4, and 7.5 (effective July 1, 1988, amended December 11, 1995). It concluded that issues involving lawyer advertising and solicitation require consideration of the current Oklahoma Rules and their judicial interpretation as the law continues to evolve, and that advisory opinions predating significant changes in the law may be, in whole or in part, outdated, and should not be relied upon to the extent they are inconsistent with current law.

Currency note

This opinion was issued in 1998 under the Oklahoma Rules of Professional Conduct (effective July 1, 1988, amended 1995), before the later Ethics 2000-based amendments to those Rules. The advertising and solicitation rules (Model Rules 7.1 through 7.3 and the Oklahoma equivalents) have continued to change. Treat this page as historical context, not current guidance.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: Can I still rely on a pre-Bates Oklahoma advertising opinion?

A: Only to the extent it is consistent with current law. The committee concluded that opinions predating significant changes in advertising and solicitation law may be outdated and should not be relied upon where inconsistent with current law.

Q: What triggered the change in the law?

A: The committee pointed to Bates v. State Bar of Arizona (1977) and a line of later U.S. Supreme Court decisions, along with Oklahoma cases such as Schaffer, as liberalizing the regulation of lawyer advertising.

Q: What rules govern advertising in Oklahoma now?

A: The committee identified Rules 7.1 through 7.5 of the Oklahoma Rules of Professional Conduct, as amended, and their judicial interpretation.

Background and rules framework

The opinion addressed the continuing validity of older advisory opinions under the current advertising and solicitation rules (Oklahoma RPC 7.1 through 7.5), in light of Bates and its progeny. These correspond to Model Rules 7.1, 7.2, and 7.3.

Citations and references

Rules of Professional Conduct:

• Oklahoma RPC 7.1 through 7.5 (lawyer advertising and solicitation), effective July 1, 1988, amended December 11, 1995.

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
• In re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978).
• In re R.M.J., 455 U.S. 191 (1982); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).
• Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988); Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).
• State ex rel. Oklahoma Bar Association v. Schaffer, 698 P.2d 355 (Okla. 1982).

See also

• Okla. Bar Ethics Op. 300: Keeping a deceased or retired partner's name in the firm name
• Okla. Bar Ethics Op. 304: Ex parte communication with an adverse party's physician

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-310/

Original opinion text

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

Adopted March 27, 1998

TOPIC: ADVERTISING; SOLICITATION BY LAWYERS

ABSTRACT: Over the last two decades, laws governing lawyer advertising and solicitation have become liberalized. Legal ethics advisory opinions, which predate significant changes in those laws, may be, in whole or in part, outdated, and should therefore not be relied upon, to the extent they are inconsistent with current law.

INQUIRY: What is the effect, if any, of legal ethics advisory opinions which predate significant changes in the law governing lawyer advertising and solicitation?

OPINION

The liberalization of the law regarding state’s regulation of lawyer advertising and solicitation saw its beginning with Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Following Bates, the United States Supreme Court decided a series of cases which announced further guidelines for lawyers. See In Re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978); In Re RMJ, 455 U.S. 191 (1982); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988); Florida Bar v. Went For It, Inc., 115 S.Ct. 2371 (1995).

Courts across the country, including the Supreme Court of Oklahoma, contributed to this changing body of law.1 In State ex rel. Oklahoma Bar Association v. Schaffer, 698 P.2d 355 (Okla. 1982), the court recognized that states retain the authority to regulate advertising which is shown to be inherently misleading or has proven to be misleading in practice. Carefully drawn restrictions no more sweeping than reasonably necessary may be imposed to further substantiate state interests.

States responded with amendments to their rules governing lawyer advertising. Oklahoma’s response is codified in its Rules of Professional Conduct, 7.1, 7.2, 7.3, 7.4 and 7.5. Title 5, Oklahoma Statutes, Chapter 1, Appendix 3-A (effective July 1, 1988, amended December 11, 1995).

Issues involving lawyer advertising and solicitation require consideration of the current Oklahoma Rules and their judicial interpretation as the law continues to evolve. Legal ethics advisory opinions which predate significant changes in the law governing lawyer advertising or solicitation may be, in whole or in part, outdated, and should therefore not be relied upon, to the extent they are inconsistent with current law.

1 For a discussion of the evolution of the law governing lawyer advertising and solicitation, see Robert Battey, Loosening the Glue: Lawyering, Advertising, Solicitation and Commercialism in 1995, 9 Geo. J. Legal Ethics 287 (Fall, 1995).