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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 9
April 27, 1992
The Committee is in receipt of a complaint regarding the advertising of a local law firm. The advertising states, inter alia, that their “areas of specialty include personal injury, real estate, wills, estates and matrimonial.
Disciplinary Rule 2—105(B) provides:
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“A lawyer who is certified as a specialist in a particular area of law or law practice by the authority having jurisdiction under the laws of this state over the subject of specialization by lawyers may hold himself or herself out as a specialist, but only in accordance with the rules prescribed by that authority.
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No certification system exists in New York, so that it is improper for a New York lawyer to list himself or herself as a “specialist,” and reference to “specialities” should be avoided. (N.Y. State Op. #559; 487; Nassau County Op. 85—1).
The law firm in question also advertises in the form of coupons, in a “clip and save” format. One states “Simple Wills $75.00 w/coupon.” Another states “$100 off all residential real estate closing w/coupon.” A third advertises “Free Consultation plus $100 off fee (if retained by client) in Family Court or divorce cases.”
Although nothing in the Disciplinary Rules addresses this type of advertising directly, advertisements cannot be false, misleading, or deceptive (D.R. 2-101(A)) and there is always a concern that offering a discount from customary fees may be misleading. (N.Y. State Op. #563).
Opinion #563 set forth various situations in which the offer of a discount would be deceptive and therefore impermissible. It is deceptive to advertise a discount from ‘‘customary fees and to apply the discount to a fee he or she does not regularly charge. For example, if the discount offers a simple will for $75.00, and the attorney in fact charges many clients only $75.00 without the coupon, such an offer would be misleading.
Another problem noted in this opinion is the situation in which fees are based in part on results achieved or time spent. The problem is in establishing what, if any, those “customary fees” may be. It is not per se improper to offer a discount, but
the customary fees to which the discount applies must be readily ascertainable. The New York State Bar Association s Committee on professional Ethics suggests that the customary fee is the fee charged by the lawyer for most of his or her engagements involving similar work. It is substantially more than a majority of similar cases handled.
The Committee also suggests that if a discounted fee is advertised, the full customary fee which is being discounted must also be stated so that the offer will be intelligible and not misleading.
The information provided to this Committee does not reveal the customary fees of the advertising law firm, so an opinion as to whether it is misleading on that basis cannot be rendered. However, the full customary fees are not set forth in the ad, so that under Opinion #563, it must be considered misleading in its present form.
Pursuant to Article VI, Section 19 of the R.C.B.A. By-Laws, please be advised that the statements contained herein express the opinion of the committee alone, and have not been passed upon by the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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