ADVERTISING-- After winning or settling a personal injury lawsuit, a lawyer may not submit to the newspaper a captioned personal photograph or story concerning the verdict or settlement.
The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the following hypothetical facts:
Lawyer A is involved in a personal injury lawsuit which concludes with a settlement or concludes with a jury award for the Plaintiff. Subsequent to the conclusion of the lawsuit, Lawyer A takes a picture of the Plaintiff and himself to the local newspaper, along with a caption to go under the photo, describing the lawsuit and the manner of conclusion, along with the results. No accompanying story attends the picture.
Is it ethical in either scenario, being either a settlement or a jury verdict, for Lawyer A to take such a photo to a newspaper and request that it be printed?
Rule 7.1 of the Rules of Professional Conduct provides that a lawyer may not make a deceptive or misleading communication about the lawyer or the lawyer's services, including any statement that "is likely to create an unjustified expectation about the results the lawyer can achieve." Rule 7.2 provides that public communications by a lawyer, including publications in newspapers, which refer to a particular area(s) of law in which a lawyer practices must contain the qualification: "Listing of these previously mentioned area(s) of practice does not indicate any certification of expertise therein."
The hypothetical practice violates the Rules of Professional Conduct. The submissions to the newspaper are direct attempts to promote an expectation that the lawyer will be successful again (if indeed the verdict or settlement represented an unqualified success) in handling similar matters for other clients, and to suggest the lawyer has expertise in handling matters in that area of the law. While the latter of these problems might be addressed by running the Rule 7.2 disclaimer in the caption to the photograph, the creation of an unjustified expectation about the results the lawyer can achieve -- the lawyer is not offering to publicize his or her losses as well -- renders the communication misleading, a defect that even disclaimer will not correct.