Does a North Carolina lawyer have to add a dramatization disclaimer when using stock photographs in legal advertising?

Plain-English summary

The inquiry asks whether a dramatization disclaimer is required when a lawyer uses stock photographs in a print or video advertisement for legal services. The opinion answers no.

Rule 7.1 sets the essential requirements for lawyer advertising. Rule 7.1(a) prohibits false or misleading communications about the lawyer or the lawyer's services. Rule 7.1(b) provides that a communication containing a dramatization depicting a fictional situation is misleading unless it carries a conspicuous statement, at the beginning and end, explaining that the communication contains a dramatization and does not depict actual events or real persons. The opinion notes (citing RPC 164) that fictional video dramatizations ("commercial dramatizations") are potentially misleading and so require the disclaimer.

The opinion distinguishes stock photographs, which it defines as professional photographs of common places, events, or people that can be used and reused for advertising. Like commercial dramatizations, stock photographs do not depict actual events or actual clients. Unlike dramatizations, however, stock photographs are static and therefore do not have the same tendency to mislead a consumer of legal services. The opinion concludes that, unless the stock photograph creates a material misrepresentation of fact in the context of the advertisement or marketing document, it may be included without a dramatization disclaimer (Rule 7.1(a)(1)).

In practice

Under the North Carolina rule as it stood at the time of the opinion, a lawyer may include a static stock photograph in a print or video advertisement without the dramatization disclaimer Rule 7.1(b) requires for fictional video dramatizations. Per the opinion, the dividing line is whether the image, in context, creates a material misrepresentation of fact under Rule 7.1(a)(1); if it does, the advertisement is misleading.

Common questions

Q: Do I need a dramatization disclaimer to use a stock photo in a legal ad?

A: No. The opinion concludes that static stock photographs do not have the same tendency to mislead as video dramatizations, so no dramatization disclaimer is required unless the photograph creates a material misrepresentation of fact.

Q: Why do video dramatizations need a disclaimer but stock photos do not?

A: Per the opinion (citing RPC 164), fictional video dramatizations are potentially misleading and require the disclaimer under Rule 7.1(b), while stock photographs are static and lack that same tendency to mislead.

Q: Is there any situation where a stock photo would be improper?

A: Yes. The opinion concludes that if, in the context of the advertisement, the stock photograph creates a material misrepresentation of fact, it would violate Rule 7.1(a)(1).

Background and rules framework

The opinion applies North Carolina Rule 7.1 (communications concerning a lawyer's services), the analogue of Model Rule 7.1. Rule 7.1(a) bars false or misleading communications, Rule 7.1(a)(1) addresses material misrepresentations of fact, and Rule 7.1(b) requires a conspicuous disclaimer for communications containing a dramatization of a fictional situation.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NC Rule 7.1, Rule 7.1(a), Rule 7.1(a)(1), Rule 7.1(b) (false or misleading communications; material misrepresentation; dramatization disclaimer)

Other opinions cited:

• NC RPC 164: fictional dramatizations in video advertisements are potentially misleading and require a dramatization disclaimer.

See also

• NC State Bar 2003 FEO 3: Advocates Forum Ads
• NC State Bar 2009 FEO 16: Website Case Results
• ABA Formal Op. 10-457: Lawyer Websites

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2010-formal-ethics-opinion-9/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Are dramatization disclaimers required when using stock photographs in a print or video advertisement for legal services?

Opinion:

No. Rule 7.1, Communications Concerning a Lawyer's Services, sets forth the essential requirements for all advertising by lawyers. Rule 7.1(a) states that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. Rule 7.1(b) provides that a communication by a lawyer that contains a dramatization depicting a fictional situation is misleading unless it contains a conspicuous statement at the beginning and end of the communication "explaining that the communication contains a dramatization and does not depict actual events or real persons."

Dramatizations of fictional cases in video advertisements ("commercial dramatizations") are potentially misleading. See RPC 164. Therefore, such advertisements require the dramatization disclaimer. See Rule 7.1(b). "Stock photographs" are professional photographs of common places, events, or people that can be used and reused for advertising. Like commercial dramatizations, stock photographs do not depict actual events or actual clients. However, unlike commercial dramatizations, stock photographs, because they are static, do not have the same tendency to mislead a consumer of legal services. Unless in the context of the advertisement or marketing document, the stock photograph creates a material misrepresentation of fact, a stock photograph may be included in legal advertisement without a dramatization disclaimer. See Rule 7.1(a)(1).