Can lawyers join an advertising cooperative that runs anonymous TV ads and screens callers before referring them out?

Plain-English summary

An "advertising cooperative" was soliciting South Carolina lawyers to pool their expenses through anonymous television advertising. The cooperative would run a generic lawyer advertisement with a toll-free number; a cooperative representative would interview the caller, assess the merits of the case, and then decide whether to refer the matter to a participating attorney. The question was whether participation was ethical.

The committee identified two problems. First, the advertising would fail Rule 7.2's disclosure requirements: Rule 7.2(d) requires any advertisement to include the name of at least one lawyer responsible for its content; Rule 7.2(e) bars lawyers from sharing advertising costs with lawyers outside their firm without disclosing that fact in the advertisement; and Rule 7.2(i) requires disclosure of the geographic location of the office where the advertised services will be performed. The anonymous proposal would not satisfy any of these. Second, the committee concluded that Rule 7.2 does not allow an advertising cooperative that acts as a for-profit referral service: the proposal went beyond pooling advertising costs by creating an entity to screen and refer callers, and to that extent it would violate Rule 7.2(c). The committee therefore concluded that using a cooperative to advertise collectively for professionally unrelated lawyers is unethical.

The committee added that, although it does not address the unauthorized practice of law, the screening of calls and exercise of discretion by non-lawyer telephone interviewers about the merits of a case may run afoul of Rule 5.5(b), which bars a lawyer from assisting a non-lawyer in the unauthorized practice of law.

Currency note

This opinion was issued in 1999, 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 Treat this page as historical context, not current guidance.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 lawyers run anonymous pooled TV ads through a cooperative?

A: The committee concluded no: the ads would fail Rule 7.2's requirements to name a responsible lawyer, disclose cost-sharing among unrelated lawyers, and disclose the office location.

Q: Why does the screen-and-refer feature make it worse?

A: The committee concluded that to the extent the cooperative screens callers and refers them as a for-profit referral service, it violates Rule 7.2(c), going beyond a mere pooling of advertising costs.

Q: Is there an unauthorized-practice concern?

A: The committee flagged that non-lawyer interviewers exercising discretion about a case's merits may run afoul of Rule 5.5(b), though it did not formally decide the unauthorized-practice question.

Background and rules framework

The opinion interpreted South Carolina RPC 7.2(c), (d), (e), and (i) (advertising; no paying for recommendations, required disclosures of a responsible lawyer, cost-sharing, and office location) and RPC 5.5(b) (assisting the unauthorized practice of law), corresponding to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.2(c), (d), (e), (i) / Model Rule 7.2: advertising; referral payments and required disclosures.
• South Carolina RPC 5.5(b) / Model Rule 5.5: assisting the unauthorized practice of law.

See also

• SC Bar Ethics Op. 00-10: Online Attorney-Matching Service
• SC Bar Ethics Op. 99-09: A Client's Litigation Web Page

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-99-01/

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 99-01

An "advertising cooperative" is soliciting lawyers in South Carolina to pool their expenses through anonymous television advertising. The cooperative will run a generic lawyer advertisement providing a toll-free number. A representative of the cooperative would interview the caller, assess the merits of the case, and then decide whether or not to refer the matter to a participating attorney.

Question:
Is participation in such an advertising cooperative ethical?

Summary:
Rule 7.2 does not allow the use of anonymous advertising or an advertising cooperative that acts as a for-profit referral service.

Opinion:
The proposed advertising cooperative raises two ethical issues. First, the advertising would fail to provide information required by Rule 7.2. Second, a question exists as to whether the cooperative would function as an impermissible referral service.

Rule 7.2(d) of the Rules of Professional Conduct requires, "[a]ny advertisement made pursuant to this Rule shall include the name of at least one lawyer responsible for its content." Rule 7.2(e) further restricts lawyers from sharing the costs of advertising with other lawyers not in their firm without specifically disclosing that fact in the advertisement. Further, 7.2 (i) requires the disclosure of the geographic location of the office where the lawyers will actually perform the services advertised. The advertising described in this proposal would not appear to satisfy any of these requirements.

Moreover, Rule 7.2 does not allow the use of an advertising cooperative that acts as a for-profit referral service. In this case, the advertising cooperative appears to go beyond the mere pooling of advertising costs. The proposal suggests that some entity would be created to screen and refer callers to appropriate lawyers. To the extent it serves as a for-profit referral service, the arrangement would be in violation of Rule 7.2(c).

For those reasons, the use of a cooperative to advertise collectively for professionally unrelated lawyers is unethical.

Finally, although this Committee does not address the unauthorized practice of law, we note that the screening of calls and exercise of discretion by non-lawyer telephone interviewers as to the merits of a case may run afoul of Rule 5.5(b): a lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.