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鈥橲 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 91-27
The inquirer desires to run the following legal advertisement: WORKERS COMPENSATION LEGAL CLINIC Free Assistance in obtaining:
*Medical Treatment *Lost Pay CALL: (phone number)
Question:
A. Does this advertisement constitute use of a trade name under Rule 7.2 and 7.5?
B. Is this advertisement misleading under Rule 7.1 (a)?
Summary:
A. Use of the phrase "Workers Compensation Legal Clinic" constitutes use of a trade name in violation of Rules 7.2 and 7.5, because it implies that the clinic is sponsored by the Worker's Compensation Commission, and the lawyer responsible for the advertisement is not named.
B. This advertisement is not misleading because no reasonable person could assume that receipt of medical treatment or lost pay is automatic in every case. Instead, the inquirer is simply noting that there is no charge for these services.
However, the offer of free assistance must be for genuinely free assistance. The lawyer may obtain a fee for other services but cannot condition the free assistance on the requirement that the client pay a fee on a related or unrelated matter.
Opinion:
A. Rule 7.5(a) states that "A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency..." Rule 7.2 (d) requires that any advertisement "shall include the name of at least one lawyer responsible for its content." B. Under Rule 67-1205(c)(2) of the South Carolina Workers' Compensation Commission, it is proper for an attorney to charge a fee up to 1/3 of past due lost wages if the employer disputed the entitlement of the employee to the lost wages. Similarly, under the introductory paragraph of Rule 67-1205(c), in certain situations an attorney is entitled to a fee for recovery of medical costs in contested liability cases. Therefore, an attorney who is representing that under no circumstances will he charge a fee for lost wages or medical treatment is engaging in legitimate advertising in disclosing to the public that he is willing to reduce his fees significantly. The reference to free assistance is thus proper.
One could argue that the words "in obtaining" constitute a guarantee that all cases will result in recovery. However, this is simply not the common meaning of such words. The words technically states that the attorney's assistance will be free, not that the "obtaining" will occur in every case.
However, the offer of free assistance must be for genuinely free assistance. The lawyer may obtain a fee for other services but cannot condition the free assistance on the requirement that the client pay a fee on a related or unrelated matter.