A practitioner has sent us draft advertising copy for the “yellow
pages directory” and asks: “I would appreciate receiving a written
opinion from the Ethics committee regarding the advertisement.”
The inquirer does not draw our attention to any
particular portion of or statement in the advertisement. The ad appears
designed to fill half a page. It features a stylized Statue of Liberty
in the lower left corner and a picture of the practitioner in the upper
right. At the top of the ad, in display type, the ad states: “Nationally
known IMMIGRATION attorney Can Help YOU Too!” The ad continues in
A visa application once denied, may be denied forever! You need
an expert in immigration law. [The practitioner] knows the system and the people,
so he can help you when others can’t. In 28 years of practice, he and
his associates have solved more than 2,150 immigration problems.
[The practitioner] has made his reputation at
the I.N.S.! And has learned how to cut through red tape to speed your application.
Simple cases and tough ones to . . . he knows where to turn.
economical solutions to all types of immigration problems…
Under the practitioner’s picture there
is a statement “Call me now, I’ll discuss your case with you by phone
for FREE!” The ad states at the bottom “SE HABLA ESPANOL”
and repeats this sentiment in the language and alphabets of three other
countries. The ad also indicates that the practitioner has been “LICENSED
SINCE 1963” and formerly was a government trial attorney.
The portion of the District of Columbia Rules of Professional Conduct
applicable to this inquiry is Rule 7.1(a), which provides:
(a) A lawyer shall not make a false or misleading communication about
the lawyer or the lawyer’s services. A communication is false or misleading
(1) contains a material misrepresentation of fact or law, or omits
a fact necessary to make the statement considered as a whole not
materially misleading; or
(2) contains an assertion about the lawyer or the lawyer’s services
that cannot be substantiated.
Relevant commentary to this Rule states:
 It is especially important that statements about a lawyer
or the lawyer’s services be accurate, since many members of the public
lack detailed knowledge of legal matters. Certain advertisements such
as those that describe the amount of a damage award, the lawyer’s record
in obtaining favorable verdicts, or those containing client endorsements,
unless suitably qualified, have a capacity to mislead by creating an unjustified
expectation that similar results can be obtained for others. Advertisements
comparing the lawyer’s services with those of other lawyers are false
or misleading if the claims made cannot be substantiated.
In determining whether the advertisement
in question violates Rule 7.1(a), the primary test, therefore, is whether
the advertisement, or any portion of it, is misleading.
The thrust of the instant ad is that the practitioner
has become expert through experience in dealing with immigration law problems
and that his expertise in dealing with the Immigration and Naturalization
Service allows him to be “fast, efficient [and] economical.”
While such claims of special expertise are prohibited in some jurisdictions,
the District of Columbia does not prohibit such statements. Indeed, the
Court of Appeals, at the recommendation of the Bar, expressly rejected
Rule 7.4 of the ABA Model Rules of Professional Conduct, which had attempted
to regulate claims of specialization. Moreover, nothing in the commentary
to Rule 7.1 suggests that the Court of Appeals intended to prevent statements
claiming specialization or expertise in a particular area of the law.
Accordingly, we conclude that statements of expertise in immigration law
in the advertisement before us are not to be deemed inherently misleading
even though such statements are to some extent incapable of substantiation.
The specific claim of expertise made in the ad
does not appear to be misleading in fact. The basis of the claim of experience
is disclosed in the ad, namely that the practitioner and his associates
have handled 2,150 representations in I.N.S. matters over 28 years. As
required by Rule 7.1(a)(2), this claim is capable of substantiation and,
we assume, that the practitioner will, as he must, be able to substantiate
this claim with documentation upon request by a client.1
Therefore, in the absence of a factual record suggesting that this practitioner’s
claims of expertise are false or will be understood by the public to go
beyond “what reasonably may be inferred from an evaluation”
of this practitioner’s stated years of practice and the number of INS
cases he has handled, Peel v. Attorney Registration and Disciplinary Comm’n,
110 S. Ct. 2281, 2288 (1990), we have no reason to believe that this particular
ad is inherently or potentially misleading in its claim of expertise.
We have more concern with two other matters.
First, the statement that the practitioner “can help you when others
can’t” is precisely the sort of comparative claim that is prohibited
by Comment 2 and Rule
7.1(a)(2), since it is incapable of substantiation. Second, practitioner’s
claim that he “can help YOU” is also misleading, since there
is no way that such a claim can be accurate in the abstract and the practitioner
cannot know whether or not he can help any client until some facts are
known about the client’s case.3
Whether the proposed advertisement is misleading
in any other way, this Committee has no way of knowing. Here, we have
no facts—hypothetical or real—concerning consumers’ reactions
to claims made in the ad, and we have no process by which we can ascertain
whether the statements made in the advertisement are accurate or whether
the public to which this advertisement is directed will be mislead in
any material manner by the advertisement,4
In the absence of specific proof that consumers would be mislead by the
advertisement, it would be folly for this Committee to venture further
guidance. Cf., e.g., Ibanez v. Florida Department of Business and Professional
Regulation, ___ U.S. ___, No. 93-639, slip op. at (June 13, 1994) (to
regulate commercial speech, state must demonstrate that its concerns about
such speech are “real and that its restriction will in fact alleviate
them to a material degree,” quoting Edenfield v. Fane, 507 U.S. ___,
slip op. at 9).
Inquiry No. 90-9-38
Adopted: July 19, 1994
- , we assume that the practitioner’s
claim to be “nationally known” can be documented.
- “ comparing the lawyer’s
services with those of other lawyers are false or misleading if the
claims made cannot be substantiated.”
- reaching the conclusion that this
advertisement violates Rule 7.1(a)(2) and is therefore prohibited, the
Committee takes no position on whether Rule 7.1(a)(2) is itself constitutional
as so applied.
- this Committee’s charter from
the Bar, we are to decide cases on hypothetical facts and, accordingly,
this Committee has no factfinding authority or procedures. See Rule
E-4 of the Rules of the Legal Ethics Committee of the District of Columbia