Can a West Virginia lawyer advertise 'No Recovery-No Fee' without saying the client may still owe litigation costs and expenses?

Plain-English summary

The Lawyer Disciplinary Board addressed contingent-fee advertising such as "No Recovery-No Fee" that did not disclose, in the same advertisement, any client responsibility for litigation fees and costs. The Board noted that although most attorneys disclose client responsibility for costs and expenses in their written fee agreements under Rule 1.5(c), the frequency of client complaints after cases concluded without recovery, when clients discovered they still owed money, showed that the disclosure was being communicated ineffectively.

The Board quoted Rule 7.1, which bars false or misleading communications, including those that omit a fact necessary to make the statement as a whole not materially misleading. Because lawyer advertising is a frequent and visible form of communication, any advertisement containing text about attorney fees should clearly inform the public of the terms on which fee agreements are offered. The Board concluded that contingent-fee advertising containing a statement such as "No Recovery-No Fee," "Our fee is a percentage of the settlement obtained for you," "No fee unless case is successful," "No fee unless compensation is awarded," or substantially similar language, without disclosure of client responsibility for expenses or costs of litigation, is inherently misleading. Use of such a statement, unless accompanied by a further statement that the client is responsible for payment of costs and expenses of litigation, violates Rule 7.1.

The Board concluded these "No-Fee" statements are likely to and do mislead the public by failing to clearly distinguish between and among fees, costs, and expenses, and can raise a false expectation that a client will owe nothing if the case is lost, or an expectation that the lawyer intends to finance the litigation and absorb all costs regardless of outcome. The Board stated its opinion follows Zauderer v. Office of Disciplinary Counsel of the Ohio Supreme Court, 471 U.S. 626 (1985), which approved regulation of such deceptive contingent-fee advertising, and accords with formal opinions of the bars of Virginia, Arizona, Maryland, Michigan, Mississippi, and Washington.

Currency note

This opinion was issued in 1996, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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: Could a West Virginia lawyer advertise "No Recovery-No Fee" by itself?

A: No. The opinion concluded such a statement, without disclosure of client responsibility for litigation costs and expenses in the same advertisement, is inherently misleading and violates Rule 7.1.

Q: Why was the fee agreement's disclosure not enough?

A: The Board found that disclosing cost responsibility only in the written fee agreement was an ineffective communication, shown by the frequency of complaints from clients who discovered after losing that they still owed money.

Q: What did the advertisement have to add to comply?

A: A further statement that the client is responsible for payment of the costs and expenses of litigation, so the ad distinguishes among fees, costs, and expenses.

Background and rules framework

The opinion interpreted West Virginia's Rules as they stood in 1996. Rule 7.1 (Model Rule 7.1) barred false or misleading communications, including communications that omit a fact necessary to make the statement as a whole not materially misleading. Rule 1.5(c) (Model Rule 1.5) governed contingent fee agreements and the disclosure of costs and expenses in the written agreement. The Board grounded its conclusion in Zauderer v. Office of Disciplinary Counsel of the Ohio Supreme Court, 471 U.S. 626 (1985), and aligned with formal opinions from several other states.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / WV Rule 7.1 (false or misleading communications; material omissions)
• Model Rule 1.5 / WV Rule 1.5(c) (contingent fee agreements; disclosure of costs and expenses)

Cases:

• Zauderer v. Office of Disciplinary Counsel of the Ohio Supreme Court, 471 U.S. 626 (1985), regulation of deceptive contingent-fee advertising

See also

• WV Ethics Op. 98-03: Attorney Advertising on the Internet
• WV Ethics Op. 97-01: Use of a Trade Name for Advertising
• CA COPRAC Op. 1995-142: Direct Mail Marketing of Legal Services
• Alabama Ethics Op. 2003-01: Various Advertising Issues

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e447e66ba202f4972.pdf

Original opinion text

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

LAWYER DISCIPLINARY BOARD
STATE OF WEST VIRGINIA

L.E.I. 96-01

"No Recovery-No Fee" Lawyer Advertisements Must Disclose Client Responsibility for Litigation Costs and Expenses in the Same Advertisement

In response to client complaints and inquiries, the Lawyer Disciplinary Board has determined to address the issue of lawyer contingent fee advertising such as "No Recovery-No Fee" without disclosure in the same advertisement of any client responsibility for litigation fees and costs. Although most attorneys disclose any client responsibility for these costs and expenses in their written fee agreements or engagement letters pursuant to Rule 1.5(c), the frequency of client inquiries and complaints after their cases are concluded without recovery and they discover they still owe money, suggests to the Board that this is an ineffective and inefficient communication of the obligation and responsibility for payment of fees and costs.

Rule 7.1 of the West Virginia Rules of Professional Conduct provides:

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:
(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....

Lawyer advertising is a very frequent and visible form of communication. Therefore, any advertisement in print or in other media containing text or statements relating to attorney fees should clearly inform the public as to the terms upon which fee agreements are offered. The Board concludes that lawyer contingent fee advertising which contains a statement such as: "No Recovery-No Fee", "Our fee is a percentage of the settlement obtained for you.", "No fee unless case is successful...", "No fee unless compensation is awarded.", or substantially similar language without disclosure of client responsibility for expenses or costs of litigation is inherently misleading. The use of such a statement in lawyer advertising, unless it is accompanied by a further statement that the client is responsible for payment of costs and expenses of litigation, constitutes a violation of Rule 7.1.

The Board has concluded that these No-Fee statements are likely to mislead the public and do mislead the public by failing to clearly distinguish between and among fees, costs, and expenses. Additionally, the false expectation can be raised that a client will owe nothing in the event the case is lost. In the alternative, an expectation could be raised that the lawyer intends to finance the litigation whether or not there is a recovery, and to absorb all costs and expenses.

The Board's opinion follows the holding in Zauderer v. Office of Disciplinary Counsel of the Ohio Supreme Court, 471 U.S. 626 (1985), approving regulation of such deceptive advertising of contingent fees, and is in accord with the Formal Opinions of the Bars of Virginia, Arizona, Maryland, Michigan, Mississippi, and Washington on this subject.

Approved: April 25, 1996

STEPHEN JORY, CHAIRMAN
Lawyer Disciplinary Board
State of West Virginia