Legal Ethics and Practice Program: Advertising School

The Legal Ethics and Practice Program (LEAPP) is a collaborative effort between the Office of Disciplinary Counsel to the Supreme Court of South Carolina and the Professional Responsibility Committee and CLE Division of the South Carolina Bar. LEAPP is a four-part program that is held multiple times each year. LEAPP is a comprehensive exploration of the fundamentals of legal ethics designed for lawyers and other legal professionals at any career stage. The faculty includes knowledgeable and experienced members of the Bar who deal with various aspects of matters involving ethics, professional discipline, and legal malpractice. LEAPP Ethics School is a full-day program (5.75 hours) in which the faculty reviews the Rules of Professional Conduct, giving special attention to those provisions that commonly give rise to disciplinary complaints, including lawyer-client relations, confidentiality, conflicts of interest, and litigation ethics. Participatory discussion focuses hypotheticals based on actual disciplinary cases. LEAPP Law Office Management School is a full-day program (5.75 hours) that addresses a variety of issues that arise in the practice of law that can lead to ethical dilemmas, including calendar management, document management, client communication, employee supervision, succession planning, law office finances, and cyber security. It is a comprehensive workshop on practice management solutions and ethical compliance. LEAPP Trust Account School is a half-day session (4.5 hours) covering mandatory accounting and recordkeeping requirements for client trust accounts. Participants and faculty discuss tools, techniques, and law office policies that can help the practitioner effectively avoid mistakes, misappropriation, and discipline. At the end of the program, participants have the opportunity to work through a monthly trust account reconciliation to test their knowledge. LEAPP Advertising School is a half-day program (4.5 hours) outlining the restrictions and requirements of attorney advertising and solicitation, with a particular focus on new media. Participants review and analyze sample advertisements, solicitation letters, online profiles, and social media posts to identify potential problems. SC Bar-CLE publications and oral programs are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Publications are distributed and oral programs presented with the understanding that the SC Bar-CLE does not render any legal, accounting or other professional service. Attorneys using SC Bar-CLE publications or orally conveyed information in dealing with a specific client's or their own legal matters should also research original sources of authority. ©2019 by the South Carolina Bar-Continuing Legal Education Division. All Rights Reserved THIS MATERIAL MAY NOT BE REPRODUCED IN WHOLE OR IN PART WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE CLE DIVISION OF THE SC BAR. TAPING, RECORDING, OR PHOTOGRAPHING OF SC BAR-CLE SEMINARS OR OTHER LIVE, BROADCAST, OR PRE-RECORDED PRESENTATIONS IS PROHIBITED WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE SC BAR - CLE DIVISION. BMS/12-10-2018

Legal Ethics and Practice Program Advertising School

Contents

Part I Overview of Advertising & Solicitation in South Carolina Part II Advertising Checklist Part III SC Rules of Professional Conduct Part IV Summaries of Discipline Cases Involving Advertising Part V Summaries of Ethics Advisory Opinions

Agenda

9:00 a.m. Advertising Rules & Cases 11:00 a.m. Break 11:15 a.m. Solicitation Rules & Cases 12:15 a.m. Lunch (on your own) 1:15 p.m. Social Media & Online Networking 2:45 p.m. Adjourn

Faculty Barbara M. Seymour handles a variety of matters related to legal and judicial ethics and professional discipline at the law firm of Clawson and Staubes, LLC in Columbia. She earned her degree in Management and Marketing from the University of North Carolina at Greensboro in 1990 and her Juris Doctor from the University of Georgia in 1993. Barbara worked for the Office of Disciplinary Counsel to the Supreme Court of South Carolina for seventeen years, investigating and prosecuting allegations of misconduct, incapacity, and contempt of court by lawyers. She served as the Deputy Disciplinary Counsel from 2007 until 2017. Before joining ODC, Barbara worked for Harris & Graves, PA in Greenville, representing plaintiffs in personal injury litigation. Barbara is a member of the SC Bar, the Georgia State Bar, the Association of Professional Responsibility Lawyers, the South Carolina Association of Ethics Counsel, and the SC Women Lawyers Association. She currently serves on the Law Related Education, Unauthorized Practice of Law, Future of the Profession, Professional Responsibility, and Diversity Committees at the South Carolina Bar. In 2006, Barbara was named the SC Law-Related Education Lawyer of the Year. She was a 2006 and 2011 Fellow of the National Institute for the Teaching of Ethics and Professionalism. Barbara created the SC Bar’s Legal Ethics and Practice Program (LEAPP). Barbara was an adjunct instructor in the Professional Legal Assistants Program at Converse College and currently teaches in the Paralegal Degree Program at Midlands Technical College. Her courses have included Civil Litigation, Legal Research & Writing, Business Law, Torts, Ethics, and Law Office Management. Michael Virzi teaches Legal Writing and Professional Responsibility at the University of South Carolina School of Law, where he has also taught Fundamentals of Law Practice and Professionalism and Advanced Legal Writing. He has a solo practice in Columbia, which focuses on lawyer ethics, discipline, and malpractice. Michael is a former Assistant Disciplinary Counsel for the South Carolina Supreme Court’s Office of Disciplinary Counsel, prior to which he practiced primarily in the area of business litigation. He serves on the South Carolina Bar’s Professional Responsibility and Ethics Advisory Committees, the latter of which he chaired from 2007 to 2010. Michael is a frequent CLE speaker and law school guest lecturer on the topics of ethics, malpractice, and lawyer discipline and is a member of the ABA Center for Professional Responsibility, the Association of Professional Responsibility Lawyers, the South Carolina Association of Ethics Counsel, and Phi Delta Phi. He graduated cum laude from the University of South Carolina School of Law in 2000.

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Part I - Overview of Advertising and Solicitation in South Carolina Barbara M. Seymour

(12/10/2018) Every lawyer in private practice advertises. Some use traditional media, such as television,

yellow pages, or billboards. Others use newsletters, firm brochures, sponsorships, websites, and social media. Still others rely on word-of-mouth, in-person marketing, and online professional networks. Regardless of the venue or the vehicle, it is all “communication concerning a lawyer’s services” and it is all restricted by the Rules of Professional Conduct. There are five subsections in RPC that cover “advertising” issues. The following materials outline the restrictions and requirements for all forms of lawyer communication in an effort to help you avoid complaints regarding your firm's marketing, regardless of the format you choose.

A. Rule 7.1 (Communications Concerning a Lawyer’s Services)

Rule 7.1 addresses “Communications Concerning a Lawyer’s Services.” It governs everything lawyers say about themselves and their law firms. It applies to media advertising, direct mail solicitation, promotional materials, and in-person statements. Generally, Rule 7.1 prohibits any communication that is “false, misleading, or deceptive,” about the lawyer or the lawyer's services. It also provides specific prohibitions, including statements that are truthful, yet misleading; statements that create unjustified expectations or imply that results can be achieved by unethical means; statements that compare the lawyer's services to others that cannot be factually substantiated; testimonials without required disclaimers; and, nicknames or trade names that imply an ability to obtain results for clients.

The Commission on Lawyer Conduct frequently cites Rule 7.1(a) in letters of caution to

lawyers for listing the names of unlicensed (out-of-state) lawyers without indicating the geographical limitations on their ability to practice law.1

The Court has amended Rule 7.1 to eliminate the blanket restriction on testimonials in

lawyer advertising. While testimonials are now permitted, the Rule requires that they be accompanied by a clear and conspicuous disclaimer that "any result the endorsed lawyer or law firm may achieve on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients." Further, the lawyer must disclose if it is a paid endorsement or if it is made by someone other than an actual client.

The Comment says that statements about results obtained for specific clients (including

client testimonials), the amount of prior damage awards, and the lawyer’s record in obtaining favorable verdicts are precluded if they are likely to create an unjustified expectation that the prospective client can expect similar results. Further, the Comment says that reports of past results, even if true, can be misleading without "reference to the specific factual and legal circumstances of each client's case." The Comment also states that statements of past results should be accompanied by a clear and conspicuous disclaimer that "any result the lawyer or law firm may

1 Unlicensed (out-of-state) lawyers are allowed to advertise legal services in South Carolina. However, those communications are governed by Rule 418, SCACR (Advertising and Solicitation by Unlicensed Lawyers), which requires compliance with the lawyer communication provisions of RPC and subjects the unlicensed lawyer to the SC disciplinary process for rule violations.

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have achieved on behalf of clients in other matters does not necessarily indicate similar results can be obtained for other clients."

B. Rule 7.2 (Advertising)

Rule 7.2 covers lawyer communications that are commonly considered “advertising,” but also covers all communication (including written or recorded solicitation) that is not in-person or real time. The rule includes all advertising of services “though written, recorded, or electronic communication, including public media.” Don’t let the heading of the rule mislead you into thinking it is limited to media advertising. While the term advertising is not specifically defined in the Rules, the Comments refer to "organized information campaigns" and "an active quest for clients."

This rule emphasizes the importance of restricting law firm advertising to the dissemination

of factual information in order to preserve the integrity of the legal profession. Rule 7.2(a) states that "[a]ll advertisements shall be predominately informational such that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of a lawyer predominates and the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication."

Comment 4 expounds on this theme: Regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in an objective and understandable fashion so as to facilitate a prospective client's ability to make an informed choice about legal representation. A lawyer should strive to communicate such information without the use of techniques intended solely to gain attention and which demonstrate a clear and intentional lack of relevance to the selection of counsel, as such techniques hinder rather than facilitate intelligent selection of counsel. A lawyer's advertisement should reflect the serious purpose of legal services and our judicial system. ... This rule is intended to preserve the public’s access to information relevant to the selection of counsel, while limiting those advertising methods that are most likely to have a harmful impact on public confidence in the legal system and which are of little or no benefit to the potential client. Rule 7.2 contains several specific substantive requirements. Subsection (d) states that the

communication must include the name and office address of at least one lawyer responsible for its content. The Commission on Lawyer Conduct interprets this to mean the full name of a responsible lawyer; therefore, the firm name is not sufficient unless it contains at least one lawyer's full name. If there is a complaint about a lawyer communication or advertisement and the full name of at least one lawyer is not included, an investigative file may be opened on each of the partners in the firm. At a minimum, that complaint will result in a letter of caution citing Rule 7.2(d) for failing to include the responsible lawyer’s full name.

The Comment sets out an exception to the Rule 7.2(d) requirement of disclosure of the

name and address of a responsible lawyer for certain types of promotional items. The Comment says that the requirement only to substantive communications that contain “statements and inferences beyond a lawyer or law firm's mere name, design logo, and ordinary contact

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information.” A law firm is permitted to advertise through promotional items (pens, clothing, coffee mugs, signage, etc.) without including the name and address of an individual responsible lawyer as long as the item or sign is limited to the firm name, a design-only logo, and contact information. A design-only logo is “a design shape and not a depiction,” such as an animal, object, or other recognizable thing. Note that the inclusion of a tagline or slogan is considered substantive advertising, which would require the disclosure set out in subsection (d). A slogan or tagline could include a talking phone number or descriptive email or web address (e.g., www.sclawyer.com or 1-800-SC-LAWYER). Nothing in this subsection prohibits a lawyer from disseminating promotional items. It is up to the lawyer whether or not to include substantive communications like depiction logos or law firm slogans. If such is included, the name and address of the responsible lawyer must also be included. If the promotional item is limited to name, design, and contact information, the name and address of the responsible lawyer does not need to be included.

In addition, subsection (h) requires that written and recorded communications regarding a

lawyer's services disclose the city or town where the legal services will actually be performed. This alerts potential clients in smaller markets when their cases will actually be handled out of an office in another geographical location. A firm might have a satellite office in a particular town, but the lawyers and files are located elsewhere. This must be disclosed.

Subsection (f) requires lawyers to include an explanation of how costs will be charged to

the client in all communications that contain information about legal fees. For example, a lawyer can state that there will be “no fee unless we win” in a phone book ad, but whether expenses will be charged regardless of the outcome has to be disclosed. Another example is when a lawyer includes a flat rate for services, such as filing a bankruptcy petition or an uncontested divorce. If the lawyer quotes the fee, the ad must indicate whether or not that fee includes costs. In addition, if a lawyer advertises a specific rate or fee, subsection (g) requires the lawyer to honor that rate or fee for ninety days after dissemination in a periodical (such as a newspaper) or for a full year after dissemination in an annual publication (such as the phone book). If a rate or fee is advertised on the Internet, the lawyer must honor that rate or fee for ninety days after the last day that information was available. Setting a shorter coupon-style "expiration date" (such as "Only three days left on our $500.00 traffic ticket representation!") will not be sufficient to overcome the requirement of this rule. In fact, stating an expiration date or term of offer less than the period established by the rule could be considered misleading or false advertising.

Rule 7.2 also contains administrative requirements.2 First, the lawyer responsible for the

content of the communication must review it prior to dissemination in order to ensure that it is compliant with the Rules of Professional Conduct. Second, each lawyer is required to maintain copies of all marketing materials and a record of when and where all 7.2 communications were disseminated for a period of two years. If a grievance is filed about an advertisement, a copy of the lawyer's ads, solicitation letters, Internet materials, and record of dissemination will be requested in the course of the investigation. Failure to maintain or produce those records can result in discipline, even if there is no substantive violation of RPC’s content restrictions.

2 In October 2005, the Supreme Court of South Carolina adopted a rule that required lawyers to file copies of all Rule 7.2 communications with the Commission on Lawyer Conduct. In June, 2010, the Court amended the rule to eliminate the filing requirement.

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Finally, Rule 7.2 governs the use of third parties, including other lawyers, to advertise legal services. Lawyers are prohibited from giving anything of value in exchange for a recommendation of legal services, except for paying the reasonable cost of advertising, paying usual charges for participating in a legal services plan or not-for-profit lawyer referral service, and purchasing an existing law practice. A lawyer may only participate in a legal service plan or nonprofit referral service if the service is in compliance with RPC. In addition, if one lawyer advertises with the intent to refer cases to another lawyer or firm, that fact must be disclosed in the advertisement, including the relationship between the two lawyers/firms and the name and address of the “nonadvertising” lawyer/firm.

C. Rule 7.3 (Solicitation) A communication to a specific potential client that is not initiated by the potential client (solicitation) is governed by the general provisions of Rule 7.1 and the specific provisions of Rule 7.2, discussed above. In addition, there are a number of restrictions and requirements that are unique to solicitations, found in Rule 7.3. Most importantly, all direct, in-person contact is prohibited unless the person contacted is another lawyer, a family member, a close personal friend, or a former client. A lawyer cannot visit a potential client personally, call a potential client on the phone, or contact a potential client with real time electronic communication (such as a chat room or instant message). Even if you are otherwise permitted by Rule 7.3 to solicit a potential client, you are prohibited from contacting anyone (in-person or by written or recorded communication) who has made a desire not to be solicited known to you; from using coercion, duress, harassment, fraud, overreaching, intimidation, or undue influence; or, from contacting someone who is already represented by an attorney or who is likely to be unable to exercise reasonable judgment as a result of a physical, emotional, or mental condition. The rule also prohibits using any means to contact someone in connection with a personal injury or wrongful death within thirty days of the incident.

Solicitation of members by prepaid or other legal service insurance plans is addressed in

subsection (j). A lawyer is allowed to participate in this type of plan; however, the lawyer must insure that the plan’s marketing practices conform to Rules 7.1, 7.2, and 7.3(b). The exception is that the plan may solicit potential members or customers in-person and through real time communication. The plan may not, however, contact any individual known to be in need of legal services in a particular matter.

Although communication with a potential client by direct mail (including email) or by recording is permitted, Rule 7.3 includes a number of content and format restrictions. For example, subsection (d)(1) requires that the envelope and the front of every page of written communication must contain the words “ADVERTISING MATERIAL” in prominent type and in all caps. Recorded communication must include a clear statement that it is an advertisement at the beginning and the end. This disclaimer requirement also applies to email correspondence. The Rule specifically provides that the words “ADVERTISING MATERIAL” in prominent type and in all caps be included in the subject line of an electronic communication and appear at the beginning and end of the message.

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In addition, there are three disclaimers in Rule 7.3(d)(2) and (3) that must be copied or read verbatim in the communication. These disclaimers alert the potential client to options other than retaining the lawyer, to the risk of unjustified expectations, and to the fact that complaints about the communication can be filed with CLC. Each disclaimer has specific type size and style requirements that must be followed.

Direct mail can only be sent regular mail, not certified or registered (subsection (e)) and

the envelope cannot reveal the nature of the potential client’s legal problem (subsection (h)). Direct mail cannot be “made to resemble legal pleadings or … documents” (subsection (f)). Any written solicitation must disclose how the lawyer found out about the potential client’s legal problems (subsection (g)). Finally, if someone other than the lawyer signing the letter is likely to be handling the potential client’s case, whether it’s another attorney in the firm or an outside referral, that fact has to be disclosed in the letter (subsection (i)).

Like advertising, lawyers must also keep a record of solicitations for a period of two years.3

This record must include the basis for the lawyer's belief that the potential client was in need of legal services and the factual basis for any statements made in the communication.

D. Rule 7.4 (Communication of Fields of Practice and Specialization), Rule 7.5 (Firm Names and Letterhead), and a Note about Firm Announcements. One of the most common rule violations that results in letters of caution from CLC is use of some form of the words “expert,” “specialist,” “certified,” or “authority” in violation of Rule 7.4(b). The Supreme Court's Commission on CLE and Specialization certifies lawyers in several fields of practice4 through rigorous application and testing processes. The Commission also vets other certifying bodies, known as Independent Certifying Organizations (ICO), to permit the issuance of certificates of specialization to South Carolina lawyers.5 Only lawyers who are certified in this way may use the terms expert, specialist, certified, or authority or any form of those terms in communications regarding their services. Lawyers who are not certified specialists may relay information regarding their fields of practice in advertising, solicitation, and other communications regarding their services. However, such statements must be “strictly factual” and all forms of the prohibited words must be avoided. Rule 7.5 governs the use of firm names and other professional designations. A firm name may not be misleading. If a firm or lawyer uses a trade name, it may not imply an affiliation with a government agency, a public legal services organization, or a charitable legal services organization (subsection (a)). Further, a firm cannot use the name of a lawyer holding public office if that lawyer is not actively or regularly practicing with the firm (subsection (c)). A lawyer can state or imply a partnership with other lawyers only if there is in fact a partnership (subsection (d)).

3 In August 2011, the Supreme Court eliminated the filing requirement for lawyer solicitations from Rule 7.3. 4 The Commission on CLE and Specialization currently certifies lawyers in the fields of Bankruptcy & Debtor/Creditor Law; Employment & Labor Law; Estate Planning & Probate Law; and, Taxation Law. 5 The Commission on CLE and Specialization currently recognizes three ICOs: American Board of Professional Liability Attorneys; National Board of Trial Advocacy; and, National Elder Law Foundation.

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With regard to letterhead, subsection (b) of Rule 7.5 allows firms with offices in more than one state to use the same name in South Carolina that they use in other states. However, if individual lawyers who are not licensed here are identified on the letterhead, the firm must indicate the jurisdictional limitation on those lawyers’ ability to practice.

There is some confusion among the members of the Bar about how firm announcements

fit in with the regulation of lawyer communications. Firms frequently issue announcements about formation, new partners and associates, changes to practice areas, relocation of the office, opening a new office, etc. Lawyers use a variety of different vehicles to make such announcements, such as newspapers, trade or bar magazines, television, and direct mail. There are several things to keep in mind when issuing such an announcement. First, it is a communication concerning a lawyer’s services and, therefore, subject to the limitations set forth in Rule 7.1, including the prohibitions on misleading or false statements and limitations on the use of testimonials, comparative statements, past results, and nicknames or monikers. It is also an advertisement, subject to the specific requirements of Rule 7.2. In particular, it must be included in the record of dissemination, as discussed above. Also, the announcement cannot contain any of the stated words in Rule 7.5 unless the lawyer is, in fact, certified as a specialist by the Supreme Court. There is one instance where a firm announcement is not subject to the same requirements as other communications regarding the lawyer’s services. The Comment to Rule 7.3 states that such an announcement does not constitute communications soliciting professional employment from a client known to be in need of legal services. That means that the specific disclaimer provisions of Rule 7.3(d) that otherwise apply in such circumstances do not apply to firm announcements sent through the mail. However, a solicitation letter cannot be disguised as a firm announcement in order to avoid the disclaimer provisions of the Rule.

E. Disclaimers and Disclosures. Many of the provisions of the Rules of Professional Conduct related to advertising and solicitation require a disclaimer or disclosure of certain information. In 2014, the Supreme Court amended Rule 7.2 to add subsection (i), which provides detailed guidance about the format of those disclaimers and disclosures. In addition to the specific requirements set forth in each subsection that requires a disclaimer or disclosure, the new rule mandates that all disclosures and disclaimers that appear in an advertisement or unsolicited written communication "must be of sufficient size to be clearly legible and prominently placed so as to be conspicuous to the viewer." If the disclosure or disclaimer is televised or broadcast in an electronic or video medium, it must be displayed for a sufficient time to enable the viewer to both see and read it. If the disclosure or disclaimer is spoken aloud, the new subsection requires that it be plainly audible to the listener. Statement made on a lawyer's website, online profile, Internet advertisement, or other electronic communication must be accompanied by the required disclosure or disclaimer on the same page as the statement being disclosed or disclaimed. F. Guidance. The requirements and restrictions set out in the Rules of Professional Conduct for communications concerning lawyers’ services are not complicated. The vast majority of the violations come not from any intent to violate the rules, but rather from failure to consult the rules at all. Simply reviewing the rules comments and taking care to examine all communications

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regarding legal services offered before dissemination will resolve most ethical problems. If the rules and comments don’t answer your question, review decisions from the Supreme Court and the Ethics Advisory Committee for additional guidance. (Keep in mind that these opinions are a snapshot in time and their value might have diminished somewhat if the relevant rules have been revised since they were issued.) If a lawyer has concerns about a particular activity or advertisement and review of the rules and opinions doesn’t resolve those questions, there are attorneys who will review proposed advertising and solicitation communications and give a legal opinion about ethical compliance.

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Part II - Advertising Checklist Rule 7.1 – False, Misleading, Deceptive Communications Prohibited 7.1(a) No material misrepresentation of fact or law No omission of fact necessary to avoid materially misleading 7.1(b) No creation of unjustified expectations about result; Does not state/imply results by means that violate law or RPC Reports of past results sufficiently detailed Reports of past results include disclaimer *see also 7.2(i)* 7.1(c) No comparison of services unless factually substantiated 7.1(d) Testimonial disclosures *see also 7.2(i)*: Identified as testimonial/endorsement Disclosing payment Not actual client Similar results disclaimer 7.1(e) No nicknames or trade names that imply results

Rule 7.2 – Advertising – Public Media or Written/Recorded Communication 7.2(a) The advertisement predominantly informational/factual 7.2(b) A lawyer has reviewed advertisement/solicitation prior to dissemination Keep a copy and record of when & where for 2 years 7.2(c) Cannot pay for referrals 7.2(d) Name AND address of at least one lawyer responsible for content 7.2(e) Name of nonadvertising lawyer must be disclosed *see also 7.2(i)* 7.2(f) Is fee is mentioned? Have to explain whether costs are charged; is contingency fee calculated

before or after costs *see also 7.2(i)* 7.2(g) Fee advertised must be good for 90 days (one year for phone book ads) 7.2(h) Disclose geographic location (city or town) where the office of the lawyer who will perform

the work principally practices law *see also 7.2(i)* Disclosures & Disclaimers: 7.2(i) All disclosures or disclaimers are of sufficient size to be clearly legible 7.2(i) All disclosures or disclaimers are prominently placed and conspicuous 7.2(i) TV or video disclosures and disclaimers displayed for a sufficient time to see and read 7.2(i) All disclosure or disclaimer spoken aloud is plainly audible 7.2(i) All website, online profile, Internet ad disclosures and disclaimers appear on the same page

Promotional Items: Substantive advertising (depiction, slogan, tagline, talking phone number, etc.)?

Must include name and address of responsible lawyer and geographic location Limited to firm name, design logo (no depiction), and contact information? Name, address, geographic location not required Rule 7.3 – Solicitation 7.3(a) No live, in-person, or real-time electronic contact unless:

Lawyer Family Close friend Former client

7.3(b) Cannot contact, call, write, email ANYONE: 7.3(b)(1) who has made it known to lawyer he doesn’t want to be contacted 7.3(b)(2) with coercion, duress, harassment, fraud, overreaching, intimidation, or undue

influence

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7.3(b)(3) within 30 days of event in personal injury/wrongful death 7.3(b)(4) lawyer knows or should know that prospective client is represented 7.3(b)(5)lawyer knows/should know that prospective client can’t exercise good judgment

7.3(c) maintain file for 2 years containing: 7.3(c)(1) basis for belief that recipient needed legal services 7.3(c)(2) factual basis for statements made

7.3(d) all letters, emails, and recordings must conform to 7.1 & 7.2 and must contain: 7.3(d)(1) “ADVERTISING MATERIAL”

all caps on front of envelope/email subject line front of each page

7.3(d)(1) must clearly state it is an advertisement at beginning & end *see also 7.2(i)* 7.3(d)(2)(A) “You may wish to consult your lawyer or another lawyer instead of me (us).

You may obtain information about other lawyers by consulting directories, seeking the advice of others, or calling the South Carolina Bar Lawyer Referral Service at 799-7100 in Columbia or toll-free at 1-800-868-2284. If you have already engaged a lawyer in connection with the legal matter referred to in this communication, you should direct any questions you have to that lawyer.”

If written communication, same size as text in body *see also 7.2(i)* 7.3(d)(2)(B) “The exact nature of your legal situation will depend on many facts not known

to me (us) at this time. You should understand that the advice and information in this communication is general and that your own situation may vary.”

If written communication, same size as text in body*see also 7.2(i)* 7.3(d)(3) “ANY COMPLAINTS ABOUT THIS COMMUNICATION OR THE

REPRESENTATIONS OF ANY LAWYER MAY BE DIRECTED TO THE COMMISSION ON LAWYER CONDUCT, 1220 SENATE STREET, SUITE 305, COLUMBIA SOUTH CAROLINA 29201 – TELEPHONE NUMBER (803) 734-2037”

All caps Same size as text in body*see also 7.2(i)*

7.3(e) Regular mail only, no certified or registered mail 7.3(f) Not made to look like pleadings or other legal documents 7.3(g) Disclose how you obtained info prompting the communication*see also 7.2(i)* 7.3(h) Nothing on envelope that reveals the nature of the legal problem 7.3(i) State who will actually handle the case or referral*see also 7.2(i)*

Rule 7.4 – Certification & Specialization 7.4(b) Statements concerning areas of practice are strictly factual 7.4(b) Does not contain any form of certified, specialist, expert, authority Rule 7.5 – Firm Names & Letterhead 7.5(a) Firm name & letterhead are not misleading or false 7.5(a) Trade name does not imply a connection with government agency

7.5(b) Identification of lawyers indicates jurisdictional limitations on lawyers not licensed in the jurisdiction where the office is located

7.5(c) Name of lawyer holding public office is not used in firm name or communications if not actively and regularly practicing with the firm

7.5(d) Does not imply partnership where there is none

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Part III - SC Rules of Professional Conduct Related to Advertising

RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER'S SERVICES

A lawyer shall not make false, misleading, or deceptive communications about the lawyer or the lawyer's services. A communication violates this rule 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;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;

(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated;

(d) contains a testimonial about, or endorsement of, the lawyer

(1) without identifying the fact that it is a testimonial or endorsement;

(2) for which payment has been made, without disclosing that fact;

(3) which is not made by an actual client, without identifying that fact; and

(4) which does not clearly and conspicuously state that any result the endorsed lawyer or law firm may achieve on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients.

(e) contains a nickname, moniker, or trade name that implies an ability to obtain results in a matter.

Comment [1] This Rule governs all communications about a lawyer's services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer's services, statements about them must be truthful.

Comment [2] Truthful 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.

Comment [3] An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters

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without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.

For instance, the prohibition in paragraph (b) on statements likely to create "unjustified expectations" may preclude, and the limitations in paragraph (d) on testimonials and endorsements does preclude, advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, unless they state clearly and conspicuously that any result the lawyer or law firm may have achieved on behalf of clients in other matters does not necessarily indicate similar results can be obtained for other clients. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.

Comment [4] Paragraph (e) precludes the use of nicknames, such as the "Heavy Hitter" or "The Strong Arm," that suggest the lawyer or law firm has an ability to obtain favorable results for a client in any matter. A significant possibility exists that such nicknames will be used to mislead the public as to the results that can be obtained or create an unsubstantiated comparison with the services provided by other lawyers. See also Rule 8.4(f)(prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law).

RULE 7.2:

ADVERTISING

(a) Subject to the requirements of this Rule and Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. All advertisements shall be predominately informational such that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of a lawyer predominates and the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication.

(b) A lawyer is responsible for the content of any advertisement or solicitation placed or disseminated by the lawyer and has a duty to review the advertisement or solicitation prior to its dissemination to reasonably ensure its compliance with the Rules of Professional Conduct. The lawyer shall keep a copy or recording of every advertisement or communication for two (2) years after its last dissemination along with a record of when and where it was disseminated.

(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service, which is itself not acting in violation of any Rule of Professional Conduct; and

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(3) pay for a law practice in accordance with Rule 1.17.

(d) Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer responsible for its content.

(e) No lawyer shall, directly or indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the same firm unless the advertisement discloses the name and address of the nonadvertising lawyer, the relationship between the advertising lawyer and the nonadvertising lawyer, and whether the advertising lawyer may refer any case received through the advertisement to the nonadvertising lawyer.

(f) Every advertisement that contains information about the lawyer's fee shall disclose whether the client will be liable for any expenses in addition to the fee and, if the fee will be a percentage of the recovery, whether the percentage will be computed before deducting the expenses.

(g) A lawyer who advertises a specific fee or range of fees for a particular service shall honor the advertised fee or fee range for at least ninety (90) days following dissemination of the advertisement, unless the advertisement specifies a shorter period; provided that a fee advertised in a publication which is issued not more than annually, shall be honored for one (1) year following publication.

(h) All advertisements shall disclose the geographic location, by city or town, of the office in which the lawyer or lawyers who will actually perform the services advertised principally practice law. If the office location is outside a city or town, the county in which the office is located must be disclosed. A lawyer referral service shall disclose the geographic area in which the lawyer practices when a referral is made.

(i) In addition to any specific requirements under these rules, any disclosures or disclaimers required by these rules to appear in an advertisement or unsolicited written communication must be of sufficient size to be clearly legible and prominently placed so as to be conspicuous to the viewer. If the disclosure or disclaimer is televised or broadcast in an electronic or video medium, it shall be displayed for a sufficient time to enable the viewer to see and read the disclosure or disclaimer. If the disclosure or disclaimer is spoken aloud, it shall be plainly audible to the listener. If the statement is made on a website, online profile, Internet advertisement, or other electronic communication, the required words or statements shall appear on the same page as the statement requiring the disclosure or disclaimer.

Comment [1] To assist the public in learning about and obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

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Comment [2] This Rule permits public dissemination of information concerning a lawyer's name or firm name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

Comment [3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television and other forms of advertising, against advertising going beyond specified facts about a lawyer, or against "undignified" advertising. Television, the Internet, and other forms of electronic communication are now among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. But see Rule 7.3(a) for the prohibition against a solicitation through a real time electronic exchange initiated by the lawyer.

Comment [4] Regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in an objective and understandable fashion so as to facilitate a person's ability to make an informed choice about legal representation. A lawyer should strive to communicate such information without the use of techniques intended solely to gain attention and which demonstrate a clear and intentional lack of relevance to the selection of counsel, as such techniques hinder rather than facilitate intelligent selection of counsel. A lawyer's advertisement should reflect the serious purpose of legal services and our judicial system. The state has a significant interest in protecting against a public loss of confidence in the legal system, including its participants, and in protecting specifically against harm to the jury system that might be caused by lawyer advertising. The effectiveness of the legal system depends upon the public's trust that the legal system will operate with fairness and justice. Public trust is likely to be diminished if the public believes that some participants are able to obtain results through inappropriate methods. Public confidence also is likely to be diminished if the public perceives that the personality of their advocate, rather than the legal merit of their claim, is a key factor in determining the outcome of their matter. It is necessary to ensure that lawyer advertisements do not have these detrimental impacts. This rule is intended to preserve the public's access to information relevant to the selection of counsel, while limiting those advertising methods that are most likely to have a harmful impact on public confidence in the legal system and which are of little or no benefit to the potential client.

Comment [5] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

Record of Advertising

Comment [6] Paragraph (b) imposes upon the lawyer who disseminates an advertisement or causes its dissemination the responsibility for reviewing each advertisement prior to dissemination to ensure its compliance with the Rules of Professional Conduct. It also requires that a record of the content and use of advertising be kept in order to facilitate enforcement of this Rule.

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Paying Others to Recommend a Lawyer

Comment [7] Except as permitted under paragraphs (c)(1)-(c)(3), lawyers are not permitted to pay others for recommending the lawyer's services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities. Paragraph (c)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the cost of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public relations personnel, business development staff and website designers. Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator's communications are consistent with Rule 7.1 (communications concerning a lawyer's services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person's legal problems when determining which lawyer should receive the referral. See also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing materials for them); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another).

Comment [8] A lawyer may pay the usual charges of a legal service plan or a not-for-profit lawyer referral service, which is itself not acting in violation of the Rules of Professional Conduct. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by the public to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit lawyer referral service. The "usual charges" may include a portion of legal fees collected by a lawyer from clients referred by the service when that portion of fees is collected to support the expenses projected for the referral service.

Comment [9] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer's professional obligations. See Rule 5.3. Legal service plans and lawyer referral services may communicate with the public, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead the public to think that it was a lawyer referral service sponsored by a state agency or bar association. See also Rule 7.3(b).

Comment [10] Paragraph (d) is intended to work in conjunction with paragraph (b) to provide accountability for the content of lawyer advertising. It applies only to communications that contain

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substantive advertising or soliciting statements and inferences beyond a lawyer or law firm's mere name, design logo, and ordinary contact information. Thus lawyers may advertise through promotional items, such as pens, clothing, coffee mugs, and signage without the need for the name and address of an individual lawyer responsible for the materials, provided that such items or signage contain nothing other than the firm name, logo, and contact information; that any logo is merely a design shape and not a depiction; and that any included contact information does not contain a tagline or slogan. Any depiction (such as an animal, hammer, or other recognizable thing) within a logo triggers the requirement of paragraph (d), as does any slogan, tagline, or logo whether used as a part of contact information (e.g., www.sclawyer.com or 1-800-SC-LAWYER) or otherwise.

RULE 7.3: DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a) A lawyer shall not by in person, live telephone or real time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) is a lawyer; or

(2) has a family, close personal, or prior professional relationship with the lawyer.

(b) A lawyer shall not solicit professional employment by direct written, recorded or electronic communication or by in person, telephone, telegraph, facsimile or real time electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer;

(2) the solicitation involves coercion, duress, harassment, fraud, overreaching, intimidation or undue influence;

(3) the solicitation concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person solicited or a relative of that person unless the accident or disaster occurred more than thirty (30) days prior to the solicitation;

(4) the solicitation concerns a specific matter and the lawyer knows, or reasonably should know, that the person solicited is represented by a lawyer in the matter; or

(5) the lawyer knows, or reasonably should know, that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer.

(c) Any lawyer who uses written, recorded, or electronic solicitation shall maintain a file for two years showing the following:

(1) the basis by which the lawyer knows the person solicited needs legal services; and

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(2) the factual basis for any statements made in the written, recorded, or electronic communication.

(d) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter, and with whom the lawyer has no family, close personal or prior professional relationship, shall conform to Rules 7.1 and 7.2 and, in addition, must conform to the following provisions:

(1) The words "ADVERTISING MATERIAL," printed in capital letters and in prominent type, shall appear on the front of the outside envelope and on the front of each page of the material. Every such recorded or electronic communication shall clearly state both at the beginning and at the end that the communication is an advertisement. If the solicitation is made by computer, including, but not limited to, electronic mail, the words "ADVERTISING MATERIAL," printed in capital letters and in prominent type, shall appear in any subject line of the message and at the beginning and end of the communication.

(2) Each solicitation must include the following statements:

(A) "You may wish to consult your lawyer or another lawyer instead of me (us). You may obtain information about other lawyers by consulting directories, seeking the advice of others, or calling the South Carolina Bar Lawyer Referral Service at 799-7100 in Columbia or toll free at 1-800-868-2284. If you have already engaged a lawyer in connection with the legal matter referred to in this communication, you should direct any questions you have to that lawyer" and

(B) "The exact nature of your legal situation will depend on many facts not known to me (us) at this time. You should understand that the advice and information in this communication is general and that your own situation may vary."

Where the solicitation is written, the above statements must be in a type no smaller than that used in the body of the communication.

(3) Each solicitation must include the following statement: "ANY COMPLAINTS ABOUT THIS COMMUNICATION OR THE REPRESENTATIONS OF ANY LAWYER MAY BE DIRECTED TO THE COMMISSION ON LAWYER CONDUCT, 1220 SENATE STREET, SUITE 305, COLUMBIA, SOUTH CAROLINA 29201 – TELEPHONE NUMBER 803-734-2037." Where the solicitation is written, this statement must be printed in capital letters and in a size no smaller than that used in the body of the communication.

(e) Written communications mailed to the target of the solicitation shall be sent only by regular U.S. mail, not by registered mail or other forms of restricted or certified delivery.

(f) Written communications mailed to the target of the solicitation shall not be made to resemble legal pleadings or other legal documents.

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(g) Any written communication prompted by a specific occurrence involving or affecting the intended recipient of the communication or a family member shall disclose how the lawyer obtained the information prompting the communication.

(h) A written communication seeking employment by the target of the solicitation in a specific matter shall not reveal on the envelope, or on the outside of a self mailing brochure or pamphlet, the nature of the client's legal problem.

(i) If a lawyer reasonably believes that a lawyer other than the lawyer whose name or signature appears on the communication will likely be the lawyer who primarily handles the case or matter, or that the case or matter will be referred to another lawyer or law firm, any written communication concerning a specific matter shall include a statement so advising the potential client.

(j) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. A lawyer may participate with a prepaid or group legal service plan only if the plan is established in compliance with all statutory and regulatory requirements imposed upon such plans under South Carolina law. Lawyers who participate in a legal service plan must make reasonable efforts to assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b).

Comment [1] A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer's communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches. For example, advertisements that are automatically generated in response to an Internet search are not solicitations. Because those advertisements are generated in response to Internet-based research, they are more analogous to a lawyer's response to a request for information (which is not a solicitation) than an unsolicited and targeted letter to a person who is known to be in need of a particular legal service (which is a solicitation).

Comment [2] There is a potential for abuse when a solicitation involves direct in person or live telephone or real time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

Comment [3] The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to the public, rather than direct in person, live telephone or real time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently

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recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false, misleading, deceptive, or unfair communications, in violation of Rule 7.1. The contents of direct in person, live telephone or real time electronic contact can be disputed and may not be subject to third party scrutiny. Consequently, they are much more likely to approach, and occasionally cross, the dividing line between accurate representations and those that are false and misleading.

Comment [4] There is far less likelihood that a lawyer would engage in abusive practices against a former client, or a person with whom the lawyer has a close personal or family relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer's pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer. Consequently, the general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(d) are not applicable in those situations. Also, paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to their members or beneficiaries.

Comment [5] But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false, misleading, deceptive or unfair within the meaning of Rule 7.1; which involves coercion, duress, harassment, fraud, overreaching, intimidation or undue influence within the meaning of Rule 7.3(b)(2); which involves contact with someone who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1); which involves contact with a person the lawyer reasonably should know is represented by another lawyer in the matter; or which involves contact with someone the lawyer reasonably should know is physically, emotionally or mentally incapable of exercising reasonable judgment in choosing a lawyer under Rule 7.3(b)(5) is prohibited. Moreover, if after sending a letter or other communication as permitted by Rule 7.2, the lawyer receives no response, any further effort to communicate with the recipient of the communication may violate the provisions of Rule 7.3(b).

Comment [6] The public views direct solicitation in the immediate wake of an accident as an intrusion on the personal privacy and tranquility of citizens. The 30-day restriction in paragraph (b)(3) is meant to forestall the outrage and irritation with the legal profession engendered by crass commercial intrusion by attorneys upon a citizen's personal grief in a time of trauma. The rule is limited to a brief period, and lawyer advertising permitted under Rule 7.2 offers alternative means of conveying necessary information about the need for legal services and the qualifications of available lawyers and law firms to those who may be in need of legal services without subjecting the target of the solicitation to direct persuasion that may overwhelm their judgment.

Comment [7] This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer's firm is willing to offer. This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such

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representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.

Comment [8] The requirement in Rule 7.3(d) that certain communications be marked "Advertising Material" does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.

Comment [9] Requiring communications to be marked as advertisements sent only by regular U.S. mail and prohibiting communications from resembling legal documents is designed to allow the recipient to choose whether or not to read the solicitation without fear of legal repercussions. In addition, the lawyer or law firm should reveal the source of information used to determine that the recipient has a potential legal problem. Disclosure of this information source will help the recipient understand the extent of knowledge the lawyer or law firm has regarding the recipient's particular situation and will avoid misleading the recipient into believing that the lawyer has particularized knowledge about the recipient's matter if the lawyer does not.

Comment [10] Paragraph (j) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization referred to in paragraph (j) must not be owned by or directed, whether as manager or otherwise, by any lawyer or law firm that participates in the plan. For example, paragraph (j) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services.

RULE 7.4:

COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION

(a) A lawyer who is certified under Rule 408, SCACR, as a specialist in a specialty field designated by the Supreme Court Commission on Continuing Legal Education and Specialization and approved by the Supreme Court, or a lawyer who has been issued a certificate of specialization by an independent certifying organization approved by the Supreme Court Commission on Continuing Legal Education and Specialization pursuant to the Regulations for Legal Specialization in South Carolina, Part IV, Appendix D, § VI, SCACR, is entitled to advertise or state publicly in any manner otherwise permitted by these rules that the lawyer is certified as a specialist in South Carolina. The name of the certifying organization must be clearly identified in the communication.

(b) A lawyer who is not certified as a specialist but who concentrates in, limits his or her practice to, or wishes to announce a willingness to accept cases in a particular field may so advertise or publicly state in any manner otherwise permitted by these rules. To avoid confusing or misleading

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the public and to protect the objectives of the South Carolina certified specialization program, any such advertisement or statements shall be strictly factual and shall not contain any form of the words "certified," "specialist," "expert," or "authority" except as permitted by Rule 7.4(c) and (d).

(c) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation. A lawyer engaged in the trademark practice may use the designation "trademarks," "trademark attorney," or "trademark lawyer" or any combination of those terms.

(d) A lawyer engaged in admiralty practice may use the designation "admiralty," "proctor in admiralty" or a substantially similar designation.

(e) A lawyer certified by the South Carolina Supreme Court Board of Arbitrator and Mediator Certification to be appointed as a mediator or arbitrator pursuant to Appendix G to Part IV of the South Carolina Appellate Court Rules or Rule 19 of the South Carolina Alternative Dispute Resolution Rules may use the designation "certified mediator" or "certified arbitrator" or any combination of those terms.

Comment [1] Paragraph (a) permits a lawyer to state that the lawyer is certified as a specialist in a field of law if the lawyer has been certified under Rule 408, SCACR, as a specialist in a specialty field designated by the Supreme Court Commission on Continuing Legal Education and Specialization and approved by the Supreme Court or by an independent certifying organization approved by the Commission. Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law. Certifying organizations may be expected to apply standards of experience, knowledge and proficiency to insure that a lawyer's recognition as a specialist is meaningful and reliable. In order to insure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.

Comment [2] Paragraph (b) of this Rule permits a lawyer to indicate areas of practice in communications about the lawyer's services, for example, in a telephone directory or other advertising. If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted to so indicate.

Comment [3] Paragraph (c) recognizes the long-established policy of the Patent and Trademark Office for the designation of lawyers practicing before the Office. Paragraph (d) recognizes that designation of admiralty practice has a long historical tradition associated with maritime commerce and the federal courts.

RULE 7.5:

FIRM NAMES AND LETTERHEAD

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection

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with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

Comment [1] A firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firm's identity or by a trade name such as the "ABC Legal Clinic." A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. If a private firm uses a trade name that includes a geographical name such as "Springfield Legal Clinic," an express disclaimer that it is a public legal aid agency may be required to avoid a misleading implication. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm or the name of a nonlawyer.

Comment [2] With regard to paragraph (d), lawyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, "Smith and Jones," for that title suggests that they are practicing law together in a firm.

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Part IV - Summaries of SC Lawyer Discipline Cases Involving Lawyer Advertising (1970 - 2018)

EDITOR’S NOTE: An opinion summarized here should be read in the context of the version of the Rules prevailing at the time it was issued. Many changes to the Rules regarding advertising and solicitation have been made since the issuance of some of the opinions referenced here. Practitioners are advised to read the full text of Court's decisions and the version of the Rules applicable at the time to ensure relevance and to consult with experienced ethics counsel or the SC Bar before proceeding with a questionable course of conduct. (1) Matter of Lord. Lawyer sent direct mail solicitation letters to potential criminal defense clients that violated RPC by (1) using the tag line “attorneys at law” when Lawyer was a sole practitioner; (2) touted “28 years experience both as a lawyer and former law enforcement officer” when Lawyer only practiced law for 16 years; (3) using the phoneword (844) FIXTICKET which implied and ability to obtain certain results and created unjustified expectations; and, (4) disclosing the source of information about the potential client as simply “court records” when such disclosure has to be more specific. On his website, Lawyer improperly compared his services to other lawyers by stating that he has “unique insight into SC traffic laws that many other lawyers simply don’t have.” On his AVVO profile, Lawyer failed to ensure that disclaimers regarding testimonials, endorsements, and reports of past results were clear and conspicuous. In a prior disciplinary matter, Lawyer received a confidential admonition for revealing confidential client information on AVVO in response to a negative review. In the course of investigating the new allegations, ODC discovered that Lawyer did not remove the AVVO post after receiving the confidential admonition. Lawyer was also cited for violating the Lawyer’s Oath in the AVVO post by saying “The next time you are arrested, call a public defender and see what happens and after you sit in jail for 3 months they might get around to sending you a form letter.” Public Reprimand, by agreement. (Op.#27751, November 15, 2017) (2) Matter of Taylor. Lawyer successfully resolved a personal injury claim referred to him by two nonlawyer acquaintances. Although it was not contemplated at the time of the referral, lawyer paid the acquaintances a total of $68,000.00 for the referral. At the time the payments were made, Lawyer falsely characterized them as loans to a business partner who was also acquainted with the nonlawyers. Public Reprimand, plus costs and Ethics School, by agreement. (Op.#27750, November 15, 2017) (3) Matter of Emery. Lawyer gave control of her Facebook page to a contract paralegal who posted confidential client information without consent, used improper comparative language, and advertised fee rates without disclosing information about the payment of costs. In addition, Lawyer used an outside website designer to create a website. He created it by cutting and pasting content from other websites. Lawyer did not instruct him on her ethical obligations and limitations and did not review the website before it went live. As a result, the website contained a number of violations. Specifically, the website referred to law firm “attorneys” and “lawyers” when Lawyer had no partners or associates; the website claimed Lawyer had “over 12 years experience” and “fifteen years combined experience” when she had only actually been practicing law for 8 years; the website advertised for “wrongful foreclosure lawsuits” when Lawyer had no experience in or

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intention to accept those type of cases; and, the website included a form of the word “expert” although Lawyer was not a certified specialist. Public Reprimand, plus costs, restitution, and LEAPP, by agreement. (Op.#27712, April 19, 2017) (4) Matter of Bacon. Lawyer hired a marketing company to solicit clients in other jurisdictions for loan modification. The marketing company created a website that included improper comparative language and use of the word “expertise.” Six Month Suspension, plus restitution and LEAPP, by agreement. (Op.#27710, April 19, 2017) (5) Matter of Naert. Lawyer represented clients in lawsuits against a timeshare company. In the firm's Internet marketing campaign, Lawyer bid on keywords including the name of the timeshare company and the names of the company's attorneys. This resulted in Lawyer's firm's advertisement appearing prominently in search results generated by those names. Lawyer's ads associated with searches of those names included language such as "Timeshare Attorney in SC - Ripped Off? Lied to? Scammed?" Further, the ad included a link to the law firm website, but did not contain the firm's name or the name of a lawyer responsible for the advertisement's content. Public reprimand, by agreement, plus costs and LEAPP Advertising School. (Op. # 27574, September 30, 2015)

(6) Matter of Jardine. Lawyer licensed in California and suspended in Utah partnered with an Internet marketing company to send direct solicitations for loan modification services to prospective clients facing foreclosure. The company sent solicitations to a South Carolina resident that did not comply with our rules. Specifically, the solicitation came in the form of a postcard, revealing the nature of the prospective client's legal problem on the outside. In addition, the solicitation did not contain required disclaimers, did not disclose that Lawyer was not licensed in South Carolina, and failed to identify the geographical location where Lawyer principally practiced law. Lawyer was also cited for using the trade name "J Nolan Legal" without including his actual name in the solicitation. Although he initially cooperated in the disciplinary investigation, he made false representations in his responses, he failed to submit required documentation, and he failed to participate in the formal proceedings. Permanently debarred & indefinitely banned from advertising or soliciting in South Carolina, plus costs, by default. (Op.#27459, October 29, 2014)

(7) Matter of Defillo. Lawyer is licensed in Florida, but not in SC. Lawyer opened an office in Greenville to handle federal immigration matters. Lawyer has no law partners or associates who were licensed in SC, except for a period of approximately fourteen days in August 2012. Lawyer offered to provide legal services in SC using methods specifically targeted at potential clients in SC, including a website, business cards, print ads, and radio commercials. Lawyer's letterhead contained the phrase "Attorneys and Counselors at Law" when, in fact, she had no partners or associates at the times the letters were written. Further, Lawyer's letterhead included her SC office address without indicating the jurisdictional limitations on her ability to practice law. Also, Lawyer advertised her office in Greenville on her website, but failed to state that she is not licensed to practice law in SC or otherwise set forth the jurisdictional limitations on her practice here. Further, Lawyer's website was not limited to promotion of her federal immigration practice, but rather included her experience in criminal and family law and offering to "analyze the facts of [her prospective client's] case by applying current …State Laws." Other violations on the website included repeated references to the firm's "lawyers" and "attorneys" when, in fact, Lawyer is a sole practitioner with no partners; comparisons of her services with other lawyers’ services by stating that her law firm is "unique" because she and her staff are fluent in Spanish and English; use of

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forms of the words "specialist" and "expert". Lawyer was also cited for similar violations in her SC print ads, business cards, and radio commercials. Debarred, by default. (Op.#27431 August 13, 2014) (8) Matter of Van Son. Lawyer is not licensed in South Carolina. He is licensed in California, but that license is currently suspended. Lawyer sent direct mail solicitations to South Carolina residents notifying them that they were potential plaintiffs in a "national lawsuit" that he had recently filed, urging them to contact his office to avoid being "excluded as a plaintiff." Lawyer violated a number of the SC Rules of Professional Conduct in that he included in his solicitation material misrepresentations of law or fact and omitted facts necessary to make the statements not materially misleading; he failed to meet the filing requirements in place at the time; he failed to include required disclaimers; and, he failed to advise the recipients how he obtained the information prompting the communication. Lawyer failed to cooperate in the disciplinary investigation and failed to answer the formal charges or appear at the hearing. Five-year ban on admission of any type in South Carolina to begin upon reinstatement in California, plus costs and LEAPP Ethics School and Advertising School, by default. (Op.#27262, June 5, 2013) (9) Matter of Dickey. Lawyer made multiple false and misleading statements on his law firm websites, including overstating his experience and past successes, falsely stating he handled matters in federal court, stating that he graduated from law school in 2005 instead of 2008, and listing approximately 50 practice areas in which he had little or no experience. Other violations included comparative statements that could not be factually substantiated, characterizations of the quality of his services (not permitted under prior version of the rules), and creating unjustified expectations. Lawyer also participated in various online directories that included exaggerations of his reputation, skill, experience, and past results; improper use of the word 'specialist'; and, improper characterizations of the quality of Lawyer’s services. Public Reprimand, plus LEAPP Ethics School and Advertising School. (Op.#27090, February 1, 2012)

(10) Matter of Singleton. Lawyer sent a solicitation letter to a potential client in a criminal matter. Lawyer failed to include the required disclaimers, failed to use the words "ADVERTISING MATERIAL" on each page, failed to keep a complete copy of the mailing, and failed to file a copy with the Commission on Lawyer Conduct (which was required at the time the letter was sent). Public reprimand, plus costs, LEAPP Advertising School and Ethics School. (Op.#27079, December 19, 2011)

(11) Matter of Wells. Lawyer was disciplined for multiple violations of the advertising provisions of the Rules of Professional Conduct. The Lawyer's website, firm brochure, and phone book ads were false and misleading in a number of ways, including exaggeration of the experience of Lawyer and his associates; overstatement of the firm's practice and reputation; false statements about the firm's practice areas, office locations, and prior results; and, misleading statements about foreign language ability. Lawyer was also cited for making comparative statements that could not be factually substantiated; failing to include the name of at least one lawyer responsible for ad content; making statements that characterized the quality of his firm's legal services; failing to disclose how expenses were to be paid in contingency cases; and, using the words 'expertise' and 'specialize' without certification. The Court noted Lawyer's cooperation and remorse. Public reprimand, plus costs, $1000 fine, LEAPP Advertising School and Ethics School. (Op.# 26969, May 9, 2011)

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(12) In the Matter of Anonymous Member of the South Carolina Bar II. Two charges were filed against a real estate Lawyer for his marketing practices. In the first, ODC alleged that Lawyer's practice of asking lenders, realtors, and brokers to deliver his discount coupon to prospective clients was improper in-person solicitation of people known to be in need of legal services. The Court disagreed and held that lawyers could use nonlawyers for solicitation purposes under these circumstances so long as they are not paid or otherwise under the control of the lawyer, the materials are "distributed randomly," and the lawyer is not present. That charge was dismissed. Lawyer was also charged with improper use of forms of the words 'expert' and 'specialist' on his website when neither he nor his two associates were certified. The Court held that this conduct was improper and issued a letter of caution. (Op.#26752, December 21, 2009) (13) In the Matter of Anonymous Member of the South Carolina Bar I. Lawyer aired a television commercial in which he said that he "will work to protect" his workers' compensation clients' jobs. Disciplinary Counsel alleged that the advertisement was misleading in that it gave prospective clients the false impression that if Lawyer represented them they would not be fired. The Court disagreed. Charges Dismissed. (Op.#26732, October 12, 2009) (14) Matter of Schmidt. Lawyer was licensed in SC and LA. His office was located in New Orleans. Immediately after the train wreck in Graniteville, SC, he opened a law office there for the purpose of representing residents and victims. Lawyer was sanctioned for a number of rule violations, including: failing to disclose the location of his principal office in newspaper advertisements; using a form of the word 'specialist' on a billboard advertisement; using a form of the word 'expert' in solicitation letters; referring to himself as a “neighborhood attorney” in his solicitation letters; using language comparing his services to that of other lawyers in a way that could not be factually substantiated; and failing to file his solicitation letters and lists of recipients with the Commission on Lawyer Conduct. Lawyer was also cited for misrepresentations about the number of cases that he had related to the train wreck in a letter sent to clients. Public Reprimand, by Agreement. (Op. #26356, July 9, 2007) (15) In re Mitchell. Lawyer practiced under the firm name "Theo Mitchell & Associates" and the tag line "attorneys and counselors at law" even though he was a sole practitioner with no partners or associates. Lawyer had previously been cautioned by the Commission on Lawyer Conduct that these references were false, yet he continued to use them. Public Reprimand, by Agreement. (Op. #25993, June 6, 2005)

(16) In re Gibbs. Lawyer was disciplined, in part, for contacting a prospective client over the telephone in order to solicit her business in connection with an eviction matter when he had no prior professional relationship with her. Disbarred. (Op.# 25452, April 22, 2002) (17) In re Creson. Lawyer was licensed in Georgia and South Carolina. Lawyer was subsequently suspended, then disbarred in Georgia. Following his suspension and disbarment in Georgia, Lawyer continued to include a statement that he was admitted to practice in Georgia on the letterhead he used in South Carolina. Public Reprimand. (Op.# 25042, January 10, 2000) (18) Matter of Pavilack. Lawyer produced two television commercials for his personal injury practice that were deemed to be misleading. In one, an actor portrayed a police officer at the scene

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of a car wreck using his radio to call Lawyer to determine who was at fault. In the other, Lawyer is depicted at the scene of a wreck telling the police officer how to conduct his investigation. In this case, the Court rejected the constitutional argument that disciplining a lawyer for advertising was a violation of his First Amendment rights, holding that the state may freely regulate commercial speech that is misleading. Public Reprimand. (Op.# 24633, June 9, 1997) (19) Matter of Hodges. Bankruptcy Lawyer's newspaper advertisement stating, "If you are being harassed by your creditors and you need help to get out of debt: *Stop creditor's harassing calls *Stop foreclosure of home or property *Stop interest/finance charges from building up *If you are employed and need help to get out of debt, our law firm can help you by enrolling you in a wage earners plan." Majority agreed that the advertisement was misleading with no analysis or further explanation. Public Reprimand (dissent found the ad not misleading and would have dismissed the charges). (Op.#21916, May 4, 1983) (20) Matter of Burgess. Lawyer placed advertisements promising relief from financial difficulty without disclosing the nature of the services offered (bankruptcy). Court held that the "showy and undignified" ads did not "further the legitimate aim of attorney advertising, which is to educate the public and facilitate intelligent selection of counsel, and not merely to attract clients." It is important to note that the Lawyer was discipline not just for the improper advertisements, but also for the impact those ads had on his practice. The Court found that Lawyer's marketing campaign generated so much business that he was not equipped to handle the volume, resulting in neglect of client matters. Disbarment (due in large part to Lawyer's significant disciplinary history). (Op.# 21890, March 28, 1983) (21) Matter of Zimmerman. Lawyer was admitted in New York and in South Carolina. Lawyer was disciplined in New York for taking out an ad in a New York phone book holding himself out as practicing in areas of law in which he had no experience. The New York opinion explains that the phone book contained a special directory listing attorneys by practice area. Lawyer listed himself under twenty-five of those areas, although he had only been a lawyer for three years and "had no experience at all" in several of the listed areas. The New York court also noted that Lawyer elected to list his name by first name (Aaron), rather than last name (Zimmerman) in the alphabetical listings. Lawyer was found to have engaged in misleading advertising by suggesting that he was experienced in certain practice areas when, in fact, he was not. Our Court imposed reciprocal discipline. Public Reprimand. (Op.#21635, January 26, 1982) (22) Matter of Beattie. Lawyer sent his investigator to hospital rooms to solicit clients who had not sought his advice or presence. Public Reprimand. (Op. #21299, September 11, 1980) (23) Matter of Craven. Lawyer's handyman approached the widow of an accident victim on her way to the morgue representing to her that he was investigating the death. The employee told the woman that he would be able to recover cash that was allegedly stolen from her husband's body. He took her to Lawyer's home, then his office, where she signed a retainer agreement. Lawyer's employee solicited another client by visiting her at the emergency room and at her home without any request from her to do so. In a third case, the employee visited the family of a boy who had been killed in a hit-and-run accident in order to solicit their business for Lawyer. Public Reprimand. (Op.# 20237, June 10, 1976)

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(24) Matter of Bloom. Criminal defense Lawyer paid $100.00 and $50.00 each to two police officers for referring cases to him. The Lawyer and the Commission considered the common "practice of giving gifts [that had] occurred in the South Carolina Bar and particularly in the Charleston area" as mitigating the misconduct. The Court cautioned the Bar that the "former practice of gift making will not be considered as a mitigating circumstance." Public Reprimand. (Op.#20070, July 22, 1975) (25) In re Crosby. Lawyer entered into an arrangement with the owner of a towing/car repair company to solicit accident cases. The police radio would be monitored and a wrecker sent to the scene immediately. Lawyer would then solicit business at the repair shop. Public Reprimand (but dissent agreed with Commission's recommendation to impose an indefinite suspension). (Op.# 19247, June 23, 1971) Part V - Summaries of South Carolina Bar Ethics Advisory Committee Opinions

Involving Lawyer Advertising (1996 – 2018)

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EDITOR’S NOTE: Ethics Advisory Opinions (EAOs) are issued by a committee of the South Carolina Bar. They are not approved by the Commission on Lawyer Conduct or the Supreme Court of South Carolina and have no binding effect. Practitioners are advised to read the full text of EAOs to ensure applicability and to consult with experienced ethics counsel or the SC Bar before proceeding with a questionable course of conduct. The advertising and solicitation provisions of the Rules of Professional Conduct have been amended in a number of substantial ways in the last twenty-five years. Keep in mind that an EAO might have been issued under a different version of the Rules. Always consult with the current version of the Rules before relying on an EAO. (1) Pay for Placement. Lawyer would like to pay a bail bondsman a fee to allow the lawyer to place either business cards or a brochure about the lawyer at the bondsman's office. The lawyer will enter into a written agreement with the bondsman so that he understands that the lawyer is not seeking his recommendation, but rather, is paying for the opportunity to advertise the lawyer's services at the bondsman's place of business. A lawyer is ethically prohibited from paying a bail bondsman a fee for placing business cards or a brochure in a bail bondsman's office. (Op.# 96-08) (2) Advertising Specific Practice Areas. An advertisement for general legal services, including family law, which fails to disclose that the advertising attorney cannot appear in the actual conduct or trial of a state court case is a false and misleading communication prohibited by Rule 7.1. Furthermore, an advertisement for bankruptcy services which fails to disclose that the attorney cannot represent a client in Bankruptcy Court is a false and misleading communication prohibited by Rule 7.1. (Op.# 98-11) (3) Pay-Per-Click. South Carolina Rule of Professional Conduct 7.2(c) prohibits lawyers from giving “anything of value to a person for recommending the lawyer's services” but includes an exception for the “reasonable cost of advertisements.” A lawyer may ethically make payments to an Internet service for advertising the lawyer’s services based either on a set monthly or yearly fee or based on the number of hits or referrals from the service to the lawyer. Lawyers could not ethically pay the service any portion of the fees received from clients obtained through the service. See S.C. Rule Prof. Cond. 5.4(a). This opinion deals only with services that are open to attorneys generally. Services that restrict or screen attorney participation may violate Rule 7.2(c). (Op.# 01-03) (4) Descriptive Web Addresses. Unless the URL is false or misleading, it is permissible for a law firm to use a descriptive Web address. (Op.# 04-06) (5) Advertising Affiliation with Non-Lawyers. Lawyer may indicate his affiliation with Title Insurance Agency and Title Insurer on Law Firm’s website and in Law Firm’s brochures, business cards, and letterhead, assuming the advertisements comply with the Rules of Professional Conduct. (Op.# 05-10) (6) Joint Advertising with Out-of-State Law Firm. A South Carolina attorney may prepare a joint marketing package with an out-of-state law firm wherein all legal services will be provided by the South Carolina attorney, provided that the rules on lawyer advertising are complied with. The South Carolina attorney must indeed provide all legal advice. The out-of-state firm may do initial interviewing and fact gathering, but such must always be under the ultimate control of the South Carolina attorney, and the South Carolina attorney is at all times responsible for these activities, including counseling or at least questioning the client as to why the client wants to incorporate or whether there are any other more

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beneficial alternatives. The attorney also should be cautious of not violating Rule 5.5(b) with respect to assisting the unauthorized practice of law. The out-of-state law firm would not be considered a legal referral service because the advertising that it is doing is being performed as a joint venture with the South Carolina attorney. All forms, including ancillary forms, must have the South Carolina lawyer’s name on it, as well as that of the out-of-state law firm. The out-of-state law firm must disclose in all advertising that it is not licensed to practice law in South Carolina. (Op.# 05-12) (7) Profile Listing on Internet Directory. A lawyer may “claim” a website listing, but all information contained therein (including peer endorsements, client ratings, and Company X ratings) are subject to the rules governing communication and advertising once the lawyer claims the listing. A lawyer may invite peers to rate the lawyer and may invite and allow the posting of peer and client comments, but all such comments are governed by the Rules of Professional Conduct, and the lawyer is responsible for their content. (Op.#09-10) (8) Solicitation Letters of General Availability. Letters advertising the Lawyer’s general availability to provide certain legal services which are sent to persons in a restricted geographic region, such as a retirement community or selected zip code, do not constitute solicitations to persons known to be in need of legal services under Rule 7.3(d). Nor do such letters appear to be prompted by a specific occurrence under Rule 7.3(g). However, the letters do seek employment from specific prospective clients under Rule 7.3(h). (Op.# 09-14)

(9) Participating in Legal Information Websites. Lawyer's proposal to participate in www.justanswer.com as a legal expert was determined by the Committee to violate the Rules of Professional Conduct for a variety of reasons. The Committee stated, however, that a lawyer may participate in a legal information website in which the lawyer answers legal questions posted by users as long as the website complies with the Rules of Professional Conduct, including rules regarding fee-sharing, communications, and advertising. The Committee specifically cautions against inadvertently forming an attorney-client relationship by offering more than basic information of general applicability. (Op.#12-03)

(10) Referring to Law Practice as a Partnership. Lawyers proposed an arrangement in which they would practice under the name "XYZ Law Firm" and register as a limited liability partnership. The lawyers would share office space, a receptionist, office expenses, signage, telephone listings, and malpractice insurance. However, the lawyers will each employ their own staff, maintain their own trust and operating accounts, and handle their own clients. The lawyers will not share in profits. The Committee determined that these lawyers may not operate under the name XYZ Law Firm or register as an LLP because this implies that they are practicing in a partnership, when in fact, they are not. The Committee stated that a lawyer's trade name "must reflect the reality of his law practice, not the status of his office lease or insurance arrangements." (Op.#12-12) (11) Group Television Advertisement for Rotating Referrals. Lawyer may enter into a co-operative style, TV-based advertising contract with a for profit, non-lawyer, out-of-state third party advertising company provided the advertisements and relationship with the company are carefully structured to comply with Rules 7.1, 7.2, 7.4 and 7.5. Other attorneys licensed in South Carolina and its neighboring states will also join and participate in the advertising campaign, a rotation-based system where the attorney at the top of the rotation receives the next call from advertiser’s call center, then moves to the bottom of the rotation. Costs of advertising for each participating member are based on a pro-rata share

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for each participating attorney of the total advertising costs of production of ads, television air time costs, administration expenses and a reasonable profit for the company, paid monthly or yearly by each attorney, regardless of call volume, or the number of calls made to any participating member which are accepted by attorneys as new cases. The non-lawyer call center operators exercise no discretion in the handing of calls as to the merits of any particular case, but functions only to identify those that involve a claim for personal injury or death. The call center operator connects the caller to the office of the attorney at the top of the rotation, at which time that attorney moves to the bottom of the rotation. Lawyer will only receive calls originating from SC. The ads contain the names of all participating attorneys and their geographic location, and the television signal reaches into portions of the two states contiguous to SC. Lawyer reviews the ads before airing to ensure compliance with the S.C. Rules of Professional Conduct. Advertisements must include the name and office address of a responsible South Carolina attorney and, in order to avoid misleading the public, should state that the advertising company is not acting as a referral service and not performing any screening function, but merely serving as an agent of the advertising lawyers. The advertisement must also avoid misleading the public with labels such as “Legal Helpline” or “Injury Hotline” that, combined with a toll-free number, might imply a bar or other governmental or charity affiliation. Finally, the advertisement may not falsely imply a practice affiliation among the advertising lawyers. (Op.#13-05) (12) Referral Relationships with Nonlawyer Groups. Lawyer may not pay for Preferred Closing Attorney status, where such status entails being listed as a Preferred Closing Attorney, the right to place advertising materials in the Real Estate Agency’s office, and the right to participate in Real Estate Agency meetings and training sessions. Rule 7.2(c) of the SCRPC forbids a lawyer to “give anything of value to a person for recommending the lawyer’s services. . . .” The core purpose of the rule is to prevent lawyers from competing for business by paying for referrals. It is permissible for lawyers to enter into transactions with third parties that are intended to result in referrals, provided such transactions are on “commercially reasonable” terms – terms that would justify such transactions irrespective of the referrals. Here, all the advantages the lawyer would enjoy as part of Preferred Closing Attorney status – placement on the Preferred Closing Attorney list, the right to place advertising in the Agency office, access to Agency employees at meetings and training functions – are designed to generate referrals. There is no distinct non-referral consideration flowing from the Real Estate Agency to the lawyer. Although Rule 7.2(c)(1) permits a lawyer to “pay the reasonable costs of advertisements,” the proposed Preferred Closing Attorney status is not a matter of advertising but of the Agency’s endorsement and willingness to provide privileged access to a referral source. (Op.#13-09) (13) Payment of Per-Case "Marketing Fee" to Online Referral Service. In the proposed arrangement, the lawyer enters into an agreement with the referral service to charge fixed fees set by the service. Prospective clients are referred by the service to the lawyer. If the lawyer takes the case, the client pays the fee to the service. The service holds the fee until case is concluded, then pays it to the lawyer. In turn, the lawyer pays the service a "marketing fee" to the service, which amounts to about 20% of the total fixed fee paid by the client. The lawyer only pays the service for referrals of paying clients. Ethics Advisory Committee determined that this type of arrangement violates SCRPC 5.4, which prohibits sharing legal fees with a nonlawyer. The Committee also found that the arrangement would violate SCRPC 7.2(c), [NOTE this would be 7.2(b) of the Model Rules] which prohibits lawyers from giving anything of value to a person for recommending the lawyer's services. Although that rule contains exceptions for paying the reasonable cost of advertising and paying the usual charges for a not-for-profit lawyer referral service, the arrangement in question does not fall under either of those exceptions. (Op.#16-06)

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(14) Using Post Office Box as Address for Mandatory Disclosure. A post office address qualifies as an “office address" for purposes of Rule 7.2(d) provided the post office address is on file as the lawyer’s current mailing address in the lawyer’s listing in the AIS. (Op.#17-01) (Editor’s Note: If the city or town of the post office address is different from the city or town where the lawyer performing the services principally practices law, then the latter must also be included in all communications subject to Rule 7.2(h).)

(15) Accolades and Awards. A lawyer may accept and advertise a designation or accolade such as “Super Lawyers” or “Best Lawyers in America” and utilize any “badges,” symbols, or other marks authorized by the designating entity in situations when: (1) the entity or publication has strict, objective standards for inclusion in the listing that are verifiable and would be recognized by a reasonable lawyer as establishing a legitimate basis for determining whether the lawyer has the knowledge, skill, experience, or expertise indicated by the listing; (2) the standards for inclusion are explained in the advertisement or information on how to obtain the standards is provided in the advertisement (referral to the publication’s website is adequate if the standards are published therein); (3) the date of any such designation or accolade is included; (4) an advertisement makes it clear that the designation or accolade is made by a specific publication or entity through use of distinctive typeface or italics; (5) no payment of any kind for any purpose, including, but not limited to, advertising or purchase of commemorative items, is required of the lawyer, or the lawyer’s firm, for receiving the designation, accolade, or inclusion in the listing; and, (6) the organization charges the lawyer only reasonable advertising fees to the extent it not only confers such a designation or accolade but also provides a medium for promoting or advertising the designation or accolade to the public. (Op.#17-02) (16) Nonlawyer May Pay for Lawyer’s Marketing in Exchange for Referrals to the Nonlawyer. The Ethics Advisory Committee found that a lawyer may accept financial assistance from a chiropractor to facilitate the dissemination of advertisements on behalf of the lawyer (paying for the law firm’s website), with an expectation of client referrals to the chiropractor for treatment, provided adequate disclosures are made. In addition to disclosing the relationship, the lawyer should obtain informed consent, confirmed in writing, regarding the substantial risk that the existence of the relationship might materially limit Lawyer’s ability to represent clients who obtain treatment with the chiropractor. (Op.#18-02)