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.
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.
Cornelia A. Clark
Cecil D. Branstetter
Jerry C. Colley
APPROVED AND ADOPTED BY THE BOARD