Can a South Carolina law firm run an advertisement seeking a named representative for a class action before any suit is filed?

Plain-English summary

A law firm had identified a cause of action likely to be litigated as a class action but had no client to serve as named representative, and wanted to advertise for someone to fill that role before any suit was filed. It asked whether the ad was permissible, whether it had to state that it was a solicitation or give reasons, and whether it had to note that no class action had yet been filed.

The committee concluded that directed newspaper advertising does not have the same impact on recipients as direct mail or in-person solicitation, distinguishing Zauderer from Shapero. A media advertisement directed to the general public is governed by Rules 7.1 and 7.2; Rule 7.3 applies only to direct solicitations of prospective clients and would not govern a general media ad, even one targeted to an audience with potential identified claims. Any such ad must comply with Rule 7.2(b) and (d) and must not be false or misleading under Rule 7.1. If the firm instead sought a client by letter or similar communication directed to individuals known to need legal services, Rule 7.3 would apply.

On labeling, the committee noted it is not generally required that all lawyer advertising be specifically labeled as such, and that whether the ad must disclose its purpose, or include explanatory language to avoid misleading recipients, depends on the full text of the communication. The committee offered no opinion beyond the ethics question and specifically declined to address whether the practice might constitute barratry or a similar violation of law.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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: Can a firm advertise for a class representative before filing suit?

A: The committee concluded a general media advertisement seeking a class representative is permitted under Rules 7.1 and 7.2, provided it is not false or misleading.

Q: Does Rule 7.3 govern such an advertisement?

A: The committee concluded Rule 7.3 applies only to direct solicitations of prospective clients and would not govern a general media ad, even one targeted to people with potential claims.

Q: Must the ad be labeled as a solicitation or explain its purpose?

A: The committee said lawyer advertising need not generally be labeled as such, and whether explanatory language is required depends on whether the full text would otherwise be misleading.

Background and rules framework

The opinion distinguished general media advertising (governed by Rule 7.1's bar on false or misleading communications and Rule 7.2's advertising requirements, including subsections (b) and (d)) from direct solicitation of prospective clients (governed by Rule 7.3), each corresponding to the like-numbered Model Rule, and relied on Zauderer and Shapero.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.1 / Model Rule 7.1: false or misleading communications.
• South Carolina RPC 7.2(b), (d) / Model Rule 7.2: advertising requirements.
• South Carolina RPC 7.3 / Model Rule 7.3: direct solicitation of prospective clients.

Cases:

• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985): newspaper advertising of legal services.
• Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988): targeted direct-mail solicitation.

See also

• SC Bar Ethics Op. 95-31: Filing Mass Solicitation Letters
• SC Bar Ethics Op. 96-20: Solicitation by Videotape

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-25/

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 95-25

A law firm has identified a cause of action likely to be litigated as a class action, but the firm does not yet have a client to serve as named representative of the putative class. The law firm wants to advertise for a person to serve as representative of the class.

Question:
Before any litigation is filed, can a law firm advertise for a person to represent a class in a potential class action? Must any such advertisement state that it is a solicitation or identify the reasons for the solicitation? Must any such advertisement note that the solicitation is a call for a named representative of a potential class action when the class action has not yet been filed?

Summary:
Targeted media advertising is subject to Rules 7.1 and 7.2. The specific notices of Rule 7.3 are required only if a solicitation is directed to persons known to be in need of legal services. Whether specific explanatory language is needed setting forth the purpose for which clients are being sought would depend upon whether the text would otherwise be false or misleading.

Opinion:
Directed newspaper advertising does not have the same impact upon the recipient of the communication as does direct mail or in-person solicitation of prospective clients. Compare Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) with Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988). A media advertisement directed to the general public is governed by Rules 7.1 and 7.2. Rule 7.3 applies only to direct solicitations of prospective clients and would not govern a general media advertisement, even if that advertisement is targeted to a specific audience of persons with potential identified claims.

Any general advertisement of the type suggested by the inquirer must comply with the requirements of Rule 7.2(b) and (d) and must not be false or misleading, as prohibited by Rule 7.1. If the law firm elected, instead, to seek a client by letter or similar form of communication directed to individual recipients known to be in need of legal services, then the law firm would be required to comply with Rule 7.3.

It is not generally required that all lawyer advertising be specifically labelled as such. As to the question of whether any advertisement must disclose the purpose of the advertisement, the text of the advertisement must not mislead recipients as to its purpose. Whether it is necessary to include specific explanatory language to prevent the ad from being misleading will depend upon the full text of the communication.

This Committee does not offer any opinion beyond the ethical issue presented and specifically offers no opinion as to whether the practice might constitute barratry or any similar violation of law.