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OBA Ethics Counsel

Ethics Opinion No. 310

Adopted March 27, 1998

TOPIC: ADVERTISING; SOLICITATION BY LAWYERS

ABSTRACT: Over the last two decades, laws governing lawyer advertising and solicitation have become liberalized. Legal ethics advisory opinions, which predate significant changes in those laws, may be, in whole or in part, outdated, and should therefore not be relied upon, to the extent they are inconsistent with current law.

INQUIRY: What is the effect, if any, of legal ethics advisory opinions which predate significant changes in the law governing lawyer advertising and solicitation?

OPINION

The liberalization of the law regarding state's regulation of lawyer advertising and solicitation saw its beginning with Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Following Bates, the United States Supreme Court decided a series of cases which announced further guidelines for lawyers. See In Re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978); In Re RMJ, 455 U.S. 191 (1982); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988); Florida Bar v. Went For It, Inc., 115 S.Ct. 2371 (1995).

Courts across the country, including the Supreme Court of Oklahoma, contributed to this changing body of law.1 In State ex rel. Oklahoma Bar Association v. Schaffer, 698 P.2d 355 (Okla. 1982), the court recognized that states retain the authority to regulate advertising which is shown to be inherently misleading or has proven to be misleading in practice. Carefully drawn restrictions no more sweeping than reasonably necessary may be imposed to further substantiate state interests.

States responded with amendments to their rules governing lawyer advertising. Oklahoma's response is codified in its Rules of Professional Conduct, 7.1, 7.2, 7.3, 7.4 and 7.5. Title 5, Oklahoma Statutes, Chapter 1, Appendix 3-A (effective July 1, 1988, amended December 11, 1995).

Issues involving lawyer advertising and solicitation require consideration of the current Oklahoma Rules and their judicial interpretation as the law continues to evolve. Legal ethics advisory opinions which predate significant changes in the law governing lawyer advertising or solicitation may be, in whole or in part, outdated, and should therefore not be relied upon, to the extent they are inconsistent with current law.

1 For a discussion of the evolution of the law governing lawyer advertising and solicitation, see Robert Battey, Loosening the Glue: Lawyering, Advertising, Solicitation and Commercialism in 1995, 9 Geo. J. Legal Ethics 287 (Fall, 1995).