89-F-120 - May Lawyer advertise in one area when office is in another area

FORMAL ETHICS OPINION 89-F-120


Inquiry is made whether a lawyer may advertise in an area,
using a local telephone number and/or address, when the
lawyer's actual office is in another area.


A local bar association asks whether a lawyer, who maintains an office in one city,
such as Knoxville, and advertises in a city a considerable distance away, such as
Chattanooga, without stating in the advertisement the lack of a physical presence in the
city advertised in, is violating DR 2-101 of the Code of Professional Responsibility.
DR 2-101(A)(1) states:
A lawyer shall not, on behalf of himself,
his partner, associate or any other lawyer affiliated with him
or his firm, use or participate in the use of, any form of
public communication containing a false, fraudulent,
misleading, or deceptive statement or claim. A statement
or claim is false, fraudulent, misleading or deceptive if it:
Contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement, considered as a whole, not materially
misleading;
Under the facts of the inquiry, DR 2-101 is violated because the advertisement
could, by omission of a necessary fact, namely that the advertising lawyer is not a local
lawyer, mislead potential clients who may prefer to engage local counsel and who could
assume any lawyer who advertises in a local newspaper or telephone directory maintains
a full or part-time office in that locality. Prospective clients could divulge confidences
and retain a lawyer without first being told the location of the lawyer. Prospective clients
could retain lawyers with whom their ease of contact could be hindered. Their ability to
investigate the lawyer's reputation and qualifications would be more difficult if the lawyer
is not from that area.
If the non-resident attorney maintains an office to which he or she attends at least
once weekly on a regular weekly basis, then the potential problems listed above are
diminished. And there is no ethical problem if the non-resident attorney practices in a
contiguous county because the disadvantages and inconvenience of such an arrangement
are minor and are commonly accepted by consumers.
89-F-120 Page 2
In Bates v. State Bar of Arizona, 433 U.S. 350 (1977) the U. S. Supreme Court
said a state may require lawyers to provide "limited supplementation" in any
advertisement "so as to assure that the consumer is not misled." In Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 1 Lawyer's Manual
Professional Conduct 795 (1985) the court upheld a rule requiring disclosure of "purely
factual and uncontroversial information" that is "reasonably related to the State's interest
in preventing deception of consumers."
An attorney without an office in the county he or she advertises in or with an
office but without attendance on a regular weekly basis may not advertise in a noncontiguous
county without imparting that information to the consumer. By this disclosure
requirement the public's interest is protected with minimal burden on the attorney.
This 8th day of September , 1989.
ETHICS COMMITTEE:
Cornelia A. Clark
Cecil D. Branstetter
Jerry C. Colley
APPROVED AND ADOPTED BY THE BOARD