In a medical malpractice case, can I run a newspaper ad asking the defendant physician's other patients to contact me about whether they filled out a patient-history questionnaire, without complying with the lawyer-advertising rules?
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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorney represented a client in a pending lawsuit alleging injuries sustained during surgery due to a physician's negligence, where a disputed issue was whether the surgery was necessary. The physician's medical records for the client showed specific complaints that would justify the surgery, but the client denied filling out a patient-history questionnaire that recorded those complaints, and the physician denied the client had filled one out at all; expert opinion suggested that without those symptoms, the surgery was not indicated. Because medical records for the physician's other patients are confidential, the attorney could not otherwise learn how the physician's practice used patient-history questionnaires, and proposed placing a newspaper advertisement asking other patients of the physician to contact the attorney about their experiences with the questionnaires. No proposed advertisement text was submitted to the panel.
The panel explained that the Rules of Professional Conduct's restrictions on solicitation govern a lawyer's solicitation of professional employment (Rule 7.3, direct and written contact with prospective clients) and communications about or advertising of a lawyer's professional services (Rule 7.1, Rule 7.2). The panel found the attorney's proposal was neither: it was not a solicitation for professional employment nor an advertisement of the attorney's services, but a newspaper advertisement aimed at obtaining factual information the attorney deemed necessary to prosecute the client's case. On that basis, the panel concluded the attorney may place the advertisement and that the filing and disclosure requirements of Rules 7.2 and 7.3 do not apply to it. The panel added that if individuals respond to the advertisement, the attorney must comply with Rule 4.3 (dealing with unrepresented persons).
In practice
The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a newspaper advertisement whose purpose is to gather factual information relevant to a pending case, rather than to solicit professional employment or advertise the lawyer's services, falls outside Rules 7.2 and 7.3 and their filing and disclosure requirements. The opinion also holds that Rule 4.3 governs the attorney's subsequent dealings with any unrepresented individuals who respond to such an advertisement.
Common questions
Q: Do the lawyer-advertising rules apply to an ad seeking fact witnesses rather than clients?
A: No, according to this opinion. The panel found the proposed advertisement was neither a solicitation of professional employment under Rule 7.3 nor advertising of the lawyer's services under Rules 7.1 and 7.2, because its purpose was to gather factual information for the pending case.
Q: Do I still need to follow any rule once people respond to this kind of ad?
A: Yes. The opinion states that the attorney must abide by Rule 4.3 (dealing with unrepresented persons) with respect to any individuals who respond to the advertisement.
Q: Does it matter that the panel wasn't shown the actual text of the proposed ad?
A: The opinion notes the proposed advertisement was not submitted to the panel; the panel's conclusion is based on the described purpose (gathering factual information about questionnaire practices), not on review of specific ad language.
Background and rules framework
The opinion distinguishes Rule 7.3 (solicitation of professional employment through direct or written contact with prospective clients) and Rules 7.1 and 7.2 (communications about, and advertising of, a lawyer's professional services) from a communication whose purpose is fact-gathering for a pending matter rather than securing clients or promoting the lawyer. It also applies Rule 4.3 (dealing with unrepresented persons) to any responses the advertisement generates.
Citations and references
Rules of Professional Conduct:
- MR 7.1 (communications concerning a lawyer's services)
- MR 7.2 (advertising)
- MR 7.3 (solicitation of clients; direct and written contact with prospective clients)
- MR 4.3 (dealing with unrepresented persons)
Statutes:
- None cited.
Cases:
- None cited.
Other opinions cited:
- None cited.
See also
No sibling opinions yet indexed.
Source
- Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
- Original PDF: https://www.courts.ri.gov/Opinions/EAP%202009-04.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Final
Rhode Island Supreme Court Ethics Advisory Panel
Opinion No. 2009-04 Request No. No. 962
Issued August 6, 2009
FACTS:
The inquiring attorney represents a client in a pending lawsuit in which the client
has alleged that he/she sustained injuries during surgery as a result of a physician's
negligence. An issue in dispute is whether the surgery was necessary or otherwise
indicated. The physician's medical records for the client indicate that the client made
specific complaints. Such complaints justify the surgery. The client has claimed that
he/she filled out a patient-history questionnaire at the initial office visit, and has denied
that he/she included in the questionnaire the symptoms and complaints that appear in the
physician's medical record. The physician has denied that the client filled out a patient-
history questionnaire. The client has further denied having the symptoms that the
medical records indicate he/she had. There is expert opinion to suggest that without the
symptoms, the surgery was not indicated.
The inquiring attorney wants to investigate the use of patient-history
questionnaires in the physician's practice, but due to the confidential nature of medical
records, the inquiring attorney is unable to obtain information about the use of patient-
history questionnaires for other patients. The inquiring attorney proposes to place an
advertisement in the newspaper asking other patients of the physician to contact the
inquiring attorney concerning the use of patient-history questionnaires. A proposed
advertisement was not submitted to the Panel.
ISSUE PRESENTED:
The inquiring attorney asks whether he/she may place an advertisement in the
newspaper asking patients of the physician to contact the inquiring attorney about their
experiences relating to the use of patient-history questionnaires.
OPINION:
The inquiring attorney may place an advertisement in the newspaper asking
patients of the physician to contact the inquiring attorney about their experiences relating
to the use of patient-history questionnaires. The filing and disclosure requirements of
Rules 7.2 and 7.3 of the Rules of Professional Conduct do not apply to the proposed
advertisement.
Final Op. 2009-04
Page 2 of 2
REASONING:
The various restrictions on solicitation imposed by the Rules of Professional
Conduct relate to a lawyer's solicitation of professional employment. See Rule 7.3
(direct contact and written contact with prospective clients). Similarly, Rule 7.1
(communications about a lawyer services) and Rule 7.2 (advertising) address
communications about and advertising of a lawyer's professional services. In the instant
inquiry, the inquiring attorney's proposal does not appear to be either a solicitation for
professional employment or an advertisement of his/her professional services. Rather,
the inquiring attorney proposes to place a newspaper advertisement for the purpose of
obtaining factual information that he/she deems necessary for the prosecution of his/her
client's case.
Based on the facts as presented, the Panel concludes that the inquiring attorney
may place an advertisement in the newspaper asking other patients of the physician to
contact him/her regarding their experiences relating to the use of patient-history
questionnaires. The Panel also concludes that the filing and disclosure requirements of
Rules 7.2 and 7.3 of the Rules of Professional Conduct do not apply to the proposed
advertisement. The Panel further advises the inquiring attorney that if individuals
respond to the advertisement, the inquiring attorney must abide by Rule 4.3 (dealing with
unrepresented persons).
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