Ethics Opinions

ETHICS OPINION NO. 163
OF THE MISSISSIPPI BAR

RENDERED Friday, June 23, 1989

ADVERTISING -- COMMUNICATIONS CONCERNING A LAWYER'S SERVICES -In advertising her services, a lawyer shall not state, "No fee will be charged until your case is won" or "No recovery -- No Fee," or other words to that effect, when the lawyer intends some or all of her clients to pay, or reimburse her, for out-of-pocket expenses or costs regardless of the outcome of the matter, and when in the context used, such language would be misleading.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the following hypothetical facts, submitted by a member of the Mississippi State Bar:

Lawyer A desires to advertise his services in both the printed and television media. In his advertisements, Lawyer A desires to state that "No fee will be charged until your case is won," or "No recovery -- No fee:" or other words to that effect. The proposed advertisement does not mention expenses. The lawyer intends for some or all of his clients to pay, or reimburse the lawyer, for out-of-pocket expenses and costs regardless of the outcome of the matter.

This request poses two questions. First, does the failure to mention the proposed charge for "expenses" or "costs" make the proposed communication false, deceptive, or misleading? Second, is the reference to "until your case is won" likely to create unjustified expectations about results the lawyer can achieve?

The Mississippi State Bar has recognized that there are limits to the restrictions that can or should be made upon a lawyer's communications designed to apprise the public of available legal service. However, there are restrictions that may be and have been imposed. For example, M.R.P.C. Rule 7.1 prohibits advertising that constitutes "a false, deceptive or misleading communication about the lawyer or the lawyer's services. A communication is false, deceptive or misleading 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..." The Mississippi State Bar also has imposed restrictions on advertising concerning the fee that a lawyer will charge for a particular legal service. M.R.P.C. Rule 7.2, relating to advertising, specifies that if a lawyer quotes a fixed fee to be charged for legal service, the communication containing that information must contain the following statement immediately after

the quoted fee: "The rules of professional conduct of the Mississippi State Bar require that the above services be performed by this lawyer (or firm) for not more than the advertised fee." There are even specifications as to the size of type that may be used. M.R.P.C. Rule 7.2(e)

Finally, if a lawyer in Mississippi wishes to refer to an area or areas of law in which he or she performs or wishes to perform professional services (except those areas covered by Rules 7.4(b)), the publication or communication must contain the specific qualification that the mention of that area does not indicate any certification of expertise. M.R.P.C. Rule 7.2(f)

In short, the Mississippi State Bar has adopted strong policies that lawyer advertising or other communications to the public, particularly those involving fees or services, should not contain statements that possibly could deceive or mislead the public or create unjustified expectations about what the lawyer can achieve.

The proposed advertisement is actually or potentially misleading in two respects. First, the "no fee" and "no recovery -- no fee" statements are likely to give the potential client the mistaken impression that he or she will be charged nothing if the case is not won. The public is not likely to distinguish between "fee" on the one hand, and "expenses" or "costs" on the other. Indeed, the legal profession itself at sometimes uses the words interchangeably or assumes them to have overlapping meanings. For example, there are instances in which the recovery of "costs" may include the recovery of "attorney's fees." Even the Mississippi Rules of Professional Conduct do not always indicate whether a reference to a "fee" is meant to include a reference to "costs" or "expenses." M.R.P.C. Rule 7.2(e)

Finally, the proposed statement, "No fee will be charged until your case is won," also may prompt an unjustified expectation that the lawyer is exceptionally successful in winning his or her cases. This statement, standing alone or in conjunction with the "no fee" statement, violates M.R.P.C. Rule 7.1(b).