Can a law firm with no Utah-licensed lawyer advertise or solicit legal services in Utah?

Plain-English summary

Opinion 22-04 addressed a firm located outside Utah, with no attorney licensed in Utah, that advertised on billboards in Utah and solicited Utah clients through targeted mailings, fliers, and pamphlets. The Committee concluded that, assuming the conduct had not been approved through Utah's Regulatory Sandbox, such advertising and solicitation violates Utah Rule of Professional Conduct 7.1, which prohibits false or misleading communications about a lawyer's services.

The Committee's analysis turned on omission. Under Rule 7.1(a) a communication is misleading if it omits a fact necessary to make the statement, considered as a whole, not materially misleading. The Committee reasoned that a Utah billboard, or a flier mailed or distributed in Utah, creates a substantial likelihood that the audience will conclude the advertising firm is licensed to practice in Utah. Because a client searching for a lawyer has no greater need than a lawyer qualified by licensure to practice in the relevant jurisdiction, the omission of any disclaimer about where the firm's lawyers are licensed is material.

The opinion holds that the defect is curable: advertisements and solicitations may be permissible if they include an appropriate disclaimer or qualifying language stating that the firm's lawyers are not licensed in Utah. The opinion also notes its concerns may not apply to firms that practice entirely federal law.

In practice

The opinion holds that, for a firm with no Utah-licensed member, a Utah billboard or solicitation that omits any reference to the firm's lack of Utah licensure is misleading under Rule 7.1, and that an appropriate disclaimer that the firm's lawyers are not licensed in Utah brings the communication within the rule. Per the opinion, the analysis turns on whether the communication, read as a whole, would lead a reasonable person to conclude the firm is licensed in Utah.

Common questions

Q: Does an out-of-state firm have to say it is not licensed in Utah when it advertises here?

A: Under this opinion, yes. The Committee concluded that omitting the fact that no firm member is licensed in Utah is a material omission that makes the advertisement misleading under Rule 7.1, so a disclaimer or qualifying language is required.

Q: Which rule does the advertising violate?

A: Rule 7.1 of the Utah Rules of Professional Conduct, which prohibits false or misleading communications. The opinion treats a missing licensure disclaimer as an omission of a fact necessary to keep the communication from being materially misleading.

Q: Can the firm fix the problem instead of stopping the ads?

A: Yes. The opinion states that such advertisements or solicitations may be permissible if an appropriate disclaimer or qualifying language is included.

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 7.1, which corresponds to ABA Model Rule 7.1. Rule 7.1(a) provides that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services, and that a communication is false or misleading if it contains a material misrepresentation or omits a fact necessary to make the statement as a whole not materially misleading. The opinion situates the question after Utah's 2021 revisions to the advertising rules and references the Regulatory Sandbox as a path by which an otherwise-prohibited arrangement could be authorized.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / Utah RPC 7.1 (communications concerning a lawyer's services; false or misleading communications)

Other opinions cited:

• Utah Ethics Op. 14-04 (unsubstantiated comparisons with other lawyers)
• Utah Ethics Op. 17-06 ("$99" bankruptcy advertising omitting court fees)
• Utah Ethics Op. 138 and 04-03 (use of "& Associates")
• Utah Ethics Op. 00-02 (letterhead listing inactive lawyers)
• Utah Ethics Op. 08-03 (disclaimers for testimonials or dramatizations)

See also

• ABA Formal Op. 10-457: Lawyer Websites
• ABA Formal Op. 501: Solicitation of Clients
• IL ISBA Op. 22-03: Practicing Remotely Across State Lines

Source

• Landing page: https://www.utahbar.org/ethics-opinions/22-04/

Original opinion text

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

Issue

1. Is it ethical for a personal injury law firm to advertise or solicit legal services in Utah when the firm does not have a member of its firm licensed in Utah?

Opinion

2. Assuming the Regulatory Sandbox has not approved of the new business venture responsible for the advertising material, or method of solicitation/advertising, it is a violation of Utah R. Prof'l Cond. 7.1 (Communication Concerning a Lawyer's Services) that prohibits false or misleading communications for a law firm to advertise or solicit legal services in Utah if that firm does not have an attorney member of the firm, licensed in Utah. Such advertisements or solicitations may be permissible if an appropriate disclaimer or qualifying language is included.

Discussion

BACKGROUND

3. A law firm (Firm) is located outside the state of Utah. No attorney in the firm is licensed to practice law in Utah. Nevertheless, Firm places advertisements for legal services on billboards in Utah. Firm also solicits clients by mailing targeted advertisement to potential clients in Utah and by distributing or posting fliers and pamphlets within Utah. This Opinion contemplates that the firm in question practices in areas of the law controlled or affected in some way by Utah state law. The concerns addressed by this Opinion do not necessarily apply to firms that practice entirely federal law.

ANALYSIS

4. According to Rule 7.1 of the Utah Rules of Professional Conduct (a) a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

5. Comment [1] to Rule 7.1 states "[t]his Rule governs all communications about a lawyer's services. Whatever means are used to make known a lawyer's service, statements about them must be truthful."

6. Comment [2] to Rule 7.1 states "[t]ruthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation."

7. The Committee has previously identified various communications a lawyer might make that would be false and misleading: an unsubstantiated comparison of the lawyer with others (Ut. Eth. Op. 14-04), advertising "$99" bankruptcy while ignoring additional required court fees (Ut. Eth. Op. 17-06), use of "& Associates" in a firm name if there are no other lawyers in the firm (Ut. Eth. Op. No. 138 and Ut. Eth. Op. 04-03), letterhead that includes lawyers on inactive status (Ut. Eth. Op. 00-02). The Committee has noted that a disclaimer may be necessary to avoid advertising being false or misleading: testimonials or dramatizations may be false or misleading if there is a substantial likelihood that a reasonable person would reach a conclusion for which this is no factual foundation or form an unjustified expectation, but an appropriate disclaimer or qualifying language may permit such advertisements (Ut. Eth. Op. 08-03).

8. There is a "substantial likelihood" that any audience of a billboard in Utah would "formulate the conclusion" that the lawyer or firm advertised on the billboard is licensed to practice law in Utah. Similarly, a firm that solicits clients in Utah using pamphlets or fliers that are mailed, presented, handed out or otherwise disseminated in Utah, creates a "substantial likelihood" that the recipient of the advertisement will "formulate the conclusion" that members of the firm are licensed to practice law in Utah.

9. Omitting any reference to the fact that the firm or lawyer is not licensed in Utah is therefore misleading to its audience according to Comment 2 to Rule 7.1.

10. In searching for a lawyer, a potential client likely has no greater need than for a lawyer or firm that is qualified through licensure to practice in the jurisdiction in which the client is seeking legal services. The omission of an appropriate disclaimer about where attorneys in the firm are licensed to practice is therefore "material."

11. A billboard in Utah that omits any disclaimer about where the lawyer is licensed to practice, if the firm advertising on the billboard does not have a lawyer licensed in Utah, violates Rule 7.1 because it contains an omission that is materially misleading. Similarly, pamphlets or fliers mailed to or distributed in Utah by out-of-state lawyers violate Rule 7.1 as being materially misleading unless they include a disclaimer that the lawyers in the firm are not licensed in Utah.