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 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.