Opinion #46. Advertising for Personal Injury Cases

Issued by the Professional Ethics Commission

Date Issued: May 10, 1984

Question

Is it permissible under the Maine Bar Rules for a lawyer to publish the following advertisement in a local newspaper:

INJURED? Who’s on your side when the insurance company decides how much to pay you for your injury?

We can work for you and help you get as much money as you should.

You can come in for a free consultation. You may have a good case and not know it.

WE WILL FIGHT FOR YOU

Name of Law Firm Attorneys at Law Address Telephone Number

Opinion

The question presented is answered in the affirmative. Under the Maine Bar Rules it is permissible for a lawyer to publish the advertisement in a local newspaper.

As the Reporter’s Notes to Rule 3.9(a) indicate, Rule 3.9 “recognizes the right to advertise in general and forbids only those practices that would be regarded as improper in any context.” Consistent with that approach, Rule 3.9(a) prohibits a lawyer from knowingly using any form of public communication containing “a false, fraudulent, misleading, or deceptive statement or claim.” Rule 3.9(b) defines “a false, fraudulent, misleading, or deceptive statement or claim” as including, without limitation, a statement or claim that:

  1. Contains a material misrepresentation of fact or law;

  2. Omits to state any material fact necessary to make the statement, in the light of all circumstances, not misleading;

  3. Is intended or is likely to create an unjustified expectation;

  4. States or implies that a lawyer is a specialist other than as permitted by Rule 3.8;

  5. Is intended, or is likely, to convey the impression that the lawyer is in a position to influence improperly any court, tribunal, or other public body or official; or

  6. Contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived thereby, or fails to contain reasonable warnings or disclaimers necessary to make the representation or implication not deceptive.

It is the opinion of the Commission that the advertisement at issue does not constitute false advertising under Rule 3.9(a) or (b). Specifically, the advertisement does not contain a material misrepresentation of fact or law or omit to state any material fact (subsections (b)(1) and (2)). Nor can it be said that the advertisement read as a whole is intended or likely to create an unjustified expectation (subsection (b)(3)). In that regard, it is noted that the advertisement states that “you may have a good case . . .” The advertisement neither states nor implies that the law firm specializes in personal injury matters (subsection (b)(4)). In that regard, it is noted that the advertisement does not represent that the law firm’s practice is limited to personal injury matters, a representation, which if made, might improperly imply specialization. Finally, the advertisement does not convey the impression that the law firm is in a position to wield “improper influence” (subsection (b)(5)) or contain a representation or implication that is likely to cause a reasonable person to misunderstand or be deceived thereby (subsection (b)(6)).

The Commission is further of the opinion that the advertisement at issue does not constitute “other improper public communication” under Rule 3.9(c). That provision prohibits a lawyer from using any form of public communication that:

  1. Is intended or is likely to result in a legal action being taken, or a legal position being asserted, merely to harass or maliciously injure another; or

  2. Appeals primarily to fear, greed, desire for revenge, or similar emotion.

    The Reporter’s Notes to Rule 3.9(c) state that “Rule 3.9(c) is intended to prohibit public communications that, although not a violation of Rule 3.9(a), are maliciously motivated or designed to appeal to the baser human emotions.” While the advertisement no doubt is intended to have some emotional impact, the Commission does not believe that the advertisement is violative of the letter or purpose of Rule 3.9(c).

In sum, it is the opinion of the Commission that the advertisement is permissible under the Maine Bar Rules.


Enduring Ethics Opinion

Enduring Ethics Opinion #46 [April 2013]