Can a lawyer pay for recorded advertising announcements attached to a commercial telephone legal-information service?

Plain-English summary

The inquiry described Audio Services, a for-profit company offering free telephone information, including recorded legal information approved by attorneys. Lawyers could pay a fee to attach a 10-second announcement before, and a 15-second announcement after, the recorded legal information; after the last announcement a caller could dial one number to be connected directly to the advertising firm, or another number to request a free pamphlet. The inquiry asked whether a North Carolina attorney's participation violated the Rules of Professional Conduct.

The opinion concluded that participation did not violate the Rules, assuming the advertising was not false or misleading under Rule 2.1. It reasoned that Rule 2.2(a) permits advertising through public media and that, although recorded telephone announcements are not specifically listed, the rule's "such as" language and its inclusion of printed, audio, and audio/visual forms make recorded telephone announcements acceptable. The opinion noted the announcements remained subject to Rule 2.2(b)'s two-year retention requirement and Rule 2.2(e)'s requirement that they name a responsible lawyer or firm.

On solicitation, the opinion held that because there was no in-person or live telephone contact until the caller separately elected to dial the firm, the recorded announcements did not violate Rule 2.4(a); but because callers must be presumed to be in need of legal services, Rule 2.4(c) required the recorded messages to include the statement "This is an advertisement for legal services" at their beginning and ending. On unauthorized practice, the opinion concluded that the general recorded legal information was not "a legal service for any person, firm or corporation" under G.S. 84-2.1, and that Audio Services did not hold itself out as a lawyer, so participating attorneys would not be aiding the unauthorized practice of law under Rule 3.1.

Currency note

This opinion was issued in 1991, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The advertising and solicitation rules it construes (Rules 2.1, 2.2, 2.4, and 3.1) have since been renumbered and revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Are recorded telephone announcements an acceptable advertising medium?

A: Yes. The opinion concluded that, although Rule 2.2(a) does not list recorded telephone announcements, the "such as" language and the rule's inclusion of printed, audio, and audio/visual forms make them an acceptable medium.

Q: Did the recorded ads count as prohibited solicitation?

A: No. The opinion held that, because there was no in-person or live telephone contact until the caller separately dialed the firm, the announcements did not violate Rule 2.4(a). They did, however, have to carry the Rule 2.4(c) "This is an advertisement for legal services" statement.

Q: Did participating lawyers aid the unauthorized practice of law?

A: No. The opinion concluded that the general recorded legal information was not a legal service for a particular person under G.S. 84-2.1 and that Audio Services did not hold itself out as a lawyer, so participation did not aid unauthorized practice under Rule 3.1.

Background and rules framework

The opinion applied a cluster of the then-current North Carolina advertising and solicitation rules: Rule 2.1 (false or misleading communications, corresponding to Model Rule 7.1), Rule 2.2 (advertising through public media and its recordkeeping and identification requirements, corresponding to Model Rule 7.2), and Rule 2.4 (in-person and live-telephone solicitation and the required advertisement disclosure, corresponding to Model Rule 7.3). It also applied Rule 3.1 (aiding the unauthorized practice of law, corresponding to Model Rule 5.5) together with the statutory definition of the practice of law in G.S. 84-2.1.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 2.1 (false or misleading communications)
• North Carolina Rule 2.2 (advertising through public media; retention and identification)
• North Carolina Rule 2.4 (in-person and live-telephone solicitation; advertisement disclosure)
• North Carolina Rule 3.1 (aiding the unauthorized practice of law)
• MR 7.1 (communications concerning a lawyer's services); MR 7.2 (advertising); MR 7.3 (solicitation); MR 5.5 (unauthorized practice)

Statutes:

• N.C. Gen. Stat. 84-2.1 (definition of the practice of law)

Cases:

• State v. Bryan, 98 N.C. 644, 4 S.E. 522 (1887), what it means to hold oneself out as practicing law

See also

• NC Ethics Op. RPC 135: advertising a lawyer as the "best"
• NC Ethics Op. RPC 161: television commercials for legal services
• NC Ethics Op. RPC 164: television advertising of legal services

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-115/

Original opinion text

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

Inquiry:

Audio Services, Inc. ("Audio Services") provides by telephone free information ranging from health to news and weather to the general public. It is a for-profit organization which does business in fifteen states and in Canada. The service includes certain free legal information, the content of which has been written and/or approved by attorneys in the state in which the information is made available. The legal information is provided through a recorded message which can be heard by dialing a free local number. Attorneys who want to participate in the Audio Services program pay a fee in exchange for recorded advertising announcements in the telephone portion of the service. These advertisements consist of a 10-second announcement prior to the recorded legal information and a 15-second announcement following the information. After the last recorded announcement, the caller has the option to dial a single number on the telephone in order to be directly connected with the law firm making the advertisement or to dial a different number to receive a free pamphlet on the subject of his inquiry. The printed portion of the service in the telephone directory does not include any advertisement by the participating attorneys.

Does participation by a North Carolina attorney in the Audio Services program violate the North Carolina Rules of Professional Conduct?

Opinion:

No, assuming that the advertising material in question is not false or misleading as defined in Rule 2.1 of the Rules of Professional Conduct.

Rule 2.2(a) allows a lawyer to advertise through public media. Public media includes media such as "telephone directories, legal directories, newspapers or other periodicals, outdoor advertising, radio or television or written communications not involving solicitation" as defined in Rule 2.4. Although recorded telephone announcements are not included in the listing of accepted advertising media, the use of the words "such as" indicates that other types of media not listed within the rule are acceptable. Since the listing of acceptable advertising media includes printed, audio and audio/visual forms, recorded telephone announcements should also be acceptable. The recorded announcements are subject to Rule 2.2(b) which requires that a recording of the advertisements must be kept for two years after their last dissemination along with a record of when and where they were used, and to Rule 2.2(e) which requires that the recorded announcements must include the name of at least one lawyer or law firm responsible for their content.

Rule 2.4(a) states that, "[a] lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain." Since there is not in-person or live telephone contact between the person in need of legal services and the lawyer until such person elects to dial another number after the recorded messages, the recorded advertisements do not violate Rule 2.4(a).

Rule 2.4(c) requires that the words, "This is an advertisement for legal services" be included at the beginning and ending of any "recorded communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter and with whom the lawyer has no family or prior professional relationship." Since a caller must be presumed to be in need of legal services, the recorded messages must include the statement described in Rule 2.4(c).

Rule 3.1 prohibits an attorney from aiding "a person not licensed to practice law in North Carolina in the unauthorized practice of law." GS. §84-2.1 defines, in relevant part, the practice of law as: "performing any legal service for any other person, firm or corporation, with or without compensation." In addition, it is necessary that the person charged shall have customarily or habitually held himself out to the public as a lawyer, or that he has demanded compensation for his services as such. State v. Bryan, 98 N.C. 644, 4 S.E. 522 (1887). Since the recorded legal information contains legal information describing the law in general, it is not "a legal service for any person, firm or corporation." Neither does Audio Services hold itself out as an attorney or law firm. Therefore, the attorneys who participate in the Audio Services program would not be aiding the unauthorized practice of law.