Can a lawyer sponsor a Yellow Pages '900-number' service that plays the firm's recorded pitch after free recorded legal information?

Plain-English summary

A Yellow Pages information service would include a Legal Guide of roughly nine topics (criminal law, family law, personal injury/workers' compensation, and the like) reachable by dialing a "900" number. A caller would hear a pre-recorded general message on the chosen topic, then the sponsoring attorney's or firm's own pre-recorded message; a caller wanting more could dial another number to reach the firm. Attorneys sponsored a topic for a yearly fee. The committee was asked whether the firm's recorded message after the free advice was false or misleading, and, if not, whether the arrangement complied with the solicitation rules.

The committee said that under Bates v. State Bar of Arizona, lawyer advertising that is not false or misleading is protected commercial speech, and South Carolina Rules 7.1 and 7.2 allow advertising through public media so long as the communication is not false or misleading. Applying Rule 7.1's definitions, it found nothing showing a material misrepresentation or omission, no unjustified expectation about results (assuming the free advice gave only general information), and no unsubstantiated comparison, so the recorded message likely would not be false or misleading. Turning to solicitation, the committee said Rule 7.3 must still be followed: the indirect setup (the caller reaches a lawyer only by dialing again) was not the live telephone contact Rule 7.3(a) prohibits, the caller had not asked not to be solicited under Rule 7.3(b)(1), and the caller's freedom to hang up meant no coercion, duress, or harassment under Rule 7.3(b)(2). The arrangement was a recorded solicitation governed by Rule 7.3(c) (citing Shapero v. Kentucky Bar Association), which requires that the communication state at its beginning and end that it is an advertisement, that it include the specified Lawyer Referral Service and general-information disclaimers, and that it include the complaints statement directing concerns to the Board of Commissioners on Grievances and Discipline; the Yellow Pages Legal Guide would also have to be designated as advertising. Because the proposed scenario did not comply with Rule 7.3, the committee concluded the attorneys' conduct as described would be prohibited.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 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: Is a recorded lawyer pitch after free recorded legal info inherently misleading?

A: The committee said not on these facts; assuming the free advice gave only general information, the recorded advertisement would likely not be false or misleading under Rule 7.1.

Q: Is a 900-number setup "live telephone solicitation" barred by Rule 7.3(a)?

A: The committee said no; because the caller reaches a lawyer only by dialing a separate number and can hang up freely, it was not the prohibited live telephone contact and did not involve coercion, duress, or harassment.

Q: Why was the arrangement prohibited as proposed?

A: The committee said it is a recorded solicitation under Rule 7.3(c), which requires advertising labels at the beginning and end, the referral-service and general-information disclaimers, and the Board complaints statement; the proposal omitted these, so it did not comply.

Background and rules framework

The opinion applies Rule 7.1 (false or misleading communications), Rule 7.2 (advertising), and Rule 7.3 (direct contact and recorded solicitation), each corresponding to the like-numbered Model Rule, against the constitutional backdrop of Bates and Shapero. The committee separated the advertising-content question (permitted) from the solicitation-procedure question (non-compliant as proposed).

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.1 / Model Rule 7.1: defines false or misleading communications.
• South Carolina RPC 7.2 / Model Rule 7.2: permits advertising through public media.
• South Carolina RPC 7.3(c) / Model Rule 7.3: recorded solicitation must carry advertising labels and the specified disclosures.

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising as protected commercial speech.
• Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), protection for targeted solicitation.

See also

• SC Bar Ethics Op. 90-39: Comparative Lawyer TV Ads
• SC Bar Ethics Op. 90-37: Mailings to Seminar Guests
• SC Bar Ethics Op. 23-03: Tiny Radio-Dash Ads

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-31/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-31

A free information service distributed via this year's ABC Bell Yellow Pages will contain approximately 15 pages of free information. This will be done with the same use of "900" telephone numbers.

One page will be designed as a Legal Guide, which will consist of approximately 9 topics, such as criminal law, family law, personal injury/worker's compensation, etc. The person who desires information in one of he provided topics will dial the "900" number, at which time he will receive a "pre-recorded" message which provides him with general information concerning the topic chosen.

After the pre-recorded message, the sponsoring attorney or law firm's own pre-recorded message will be played. If the individual wishes to obtain more information he then dials a number which will connect him with the sponsoring law firm. An attorney or law firm sponsors a specific area by paying a yearly fee.

Questions:
1) Is the sponsoring attorney or law firm's pre-recorded message following the free pre-recorded legal advice on a particular area of law advertising which is false and misleading?
2) Assuming the advertising is not false and misleading, then has the law firm complied with the rules governing solicitation of clients?

Opinion:
The United States Supreme Court held in Bates v. State Bar of Arizona, 433 U.S 350 (1977) that lawyer advertising which is not false or misleading is commercial speech entitled to protection under the First Amendment of the United States Constitution. In accord with Bates, South Carolina Rules of Professional Conduct 7.1 and 7.2 allow attorneys to "advertise through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication" so long as the communication is not false or misleading. Rule 7.1 defines false or misleading communications as follows:

(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b) Is likely to create an unjustified expectation about results a lawyer can achieve or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or (c) Compares the lawyer's services with other lawyer's services, unless the comparison can be factually substantiated.

Under the definitions of false and misleading in Rule 7.1, it does not appear that the advertisement in conjunction with the free legal advice would be prohibited. The first definition of false and misleading focuses on a communication which contains a material misrepresentation of fact or law, or omits a fact necessary to make a statement considered as a whole not materially misleading. Nothing in the facts evinces a material misrepresentation of fact or an omission of a fact necessary to make this statement as a whole not materially misleading. Furthermore, the connection between the free legal advice and a lawyer's advertisement would not be likely to create an unjustified expectation about results the lawyer can achieve assuming the free legal advise gives only general information concerning the topic chosen. Finally, there is no indication in the fact pattern that the lawyer's advertisement after the free advice would compare the lawyer's services with other lawyer's services. It is likely that the court would find that an attorney's pre-recorded message after the free advice would not be false and misleading and would be ethical under the rules.

However, Rule 7.3, governing direct contact with prospective clients, also must be followed. Here, the prospective client does not talk directly to an attorney until he dials another number to connect him to a law firm. The proposed solicitation, thus, is not direct live telephone contact as prohibited by Rule 7.3(a). Furthermore, it does not appear that the solicitation would be prohibited by Rule 7.3 (b) (1) (prospective client has made known to the lawyer desired not to be solicited by the lawyer). Moreover, the solicitation, because of its indirect nature and freedom of a person to hang up the telephone, would not involve coercion, duress or harassment. See, Rule 7.3 (b) (2).

Rule 7.3(c) governs the solicitation in the facts presented above. Here, the attorney is soliciting professional employment through a recorded communication from a prospective client known to be in need of legal services in a particular matter (presumably since the person has called for free legal advice) and with whom the lawyer has no family or prior professional relationship. Such solicitation is permitted under Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988) where the Supreme Court gave protection to targeted mailings. In addition to conforming to Rule 7.1, the lawyer must comply with Rule 7.3(c) (1-3) in soliciting clients: (1) The words "ADVERTISING MATERIAL," printed in capital letters and in prominent type, shall appear on the front of the outside envelope and on the front of each page of material. Every such recorded communication shall clearly state both at the beginning and at the end that the communication is an advertisement.

(2) Each written or recorded solicitation must include the following statements:

(A) "You may wish to consult your lawyer or another lawyer instead of me (us). You may obtain information about other lawyers by consulting the Yellow Pages or by calling the South Carolina Lawyer Referral Service at 799-7100 in Columbia or toll free 1-800-868-2284. If you have already engaged a lawyer in connection with the legal matter referred to in this letter, you should direct any questions you have to that lawyer;" and (B) "The exact nature of your legal situation will depend on many facts not known to me (us) at this time. You should understand that the advice and information in this letter is general and that your own situation may vary." Where the solicitation is written, the above statements must be in a type no smaller than that used in the body of the letter or other writing.

(3) Each written or recorded solicitation must include the following statement: "ANY COMPLAINTS ABOUT THIS LETTER (OR RECORDING) OR THE REPRESENTATION OF ANY LAWYER MAY BE DIRECTED TO THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE POST OFFICE BOX 11330, COLUMBIA, SOUTH CAROLINA, 29211 - TELEPHONE NUMBER 803-734-1150." Where the solicitation is written, this statement must be printed in capital letters and in a size no smaller than that used in the body of the letter or other writing.

In sum, the lawyer must clearly state at the beginning and the end of the communication that the communication is an advertisement. The lawyer also must include his recording the statements delineated in Rules 7.3(c) (2) (a) (b) and Rule 7.3(c) (3).

Additionally, although the information is contained in the Yellow Pages of the telephone directory, which connotes advertising in and of itself, the rules also would require that the Legal Guide in the Yellow Pages be designated specifically as advertising. Likewise, the safeguards provide in Rule 7.3 as outlined above must also be followed by the law firm.

Although the advertisement is not false or misleading, the lawyer or law firm must still comply with the solicitation rules as set forth in Rule 7.3 The current factual scenario does not comply with the Rule 7.3; therefore, the conduct of the attorneys would be prohibited under the Rules of Professional Conduct.