Can a lawyer advertise a 'Workers Compensation Legal Clinic' offering free assistance, and is that misleading?

Plain-English summary

A lawyer wished to run an advertisement headed "WORKERS COMPENSATION LEGAL CLINIC" offering "Free Assistance in obtaining" medical treatment and lost pay, with a phone number. The committee was asked whether this used a trade name under Rules 7.2 and 7.5, and whether it was misleading under Rule 7.1(a).

On the trade name question, the committee said use of the phrase "Workers Compensation Legal Clinic" constitutes use of a trade name in violation of Rules 7.2 and 7.5. Rule 7.5(a) allows a trade name in private practice only if it does not imply a connection with a government agency, and the phrase implies the clinic is sponsored by the Workers' Compensation Commission; the committee also noted Rule 7.2(d) requires any advertisement to include the name of at least one lawyer responsible for its content, which this ad lacked.

On the misleading question, the committee said the advertisement is not misleading because no reasonable person could assume that receipt of medical treatment or lost pay is automatic in every case; the lawyer is simply noting there is no charge for these services. It explained that under the Workers' Compensation Commission rules an attorney may charge a fee for contested lost-wage and medical-cost recoveries, so an attorney who represents that he will not charge for those services is engaging in legitimate advertising disclosing a fee reduction. The committee added that the offer of free assistance must be for genuinely free assistance: the lawyer may charge for other services but cannot condition the free assistance on the client paying a fee in a related or unrelated matter.

Currency note

This opinion was issued in 1991, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Is "Workers Compensation Legal Clinic" a permissible name for a lawyer's ad?

A: The committee said no; it is an improper trade name under Rules 7.2 and 7.5 because it implies a connection with the Workers' Compensation Commission, and the ad also failed to name a responsible lawyer as Rule 7.2(d) requires.

Q: Is advertising "free assistance" misleading?

A: The committee said no; no reasonable person would read it as guaranteeing recovery in every case, and it is legitimate to disclose that the lawyer will not charge for those services.

Q: Can the lawyer charge a fee in connection with the "free" assistance?

A: The committee said the free assistance must be genuinely free; the lawyer may charge for other services but cannot condition the free assistance on the client paying a fee in a related or unrelated matter.

Background and rules framework

The opinion interprets Rule 7.1 (false or misleading communications), Rule 7.2 (advertising, including 7.2(d)'s naming requirement), and Rule 7.5 (firm names and trade names, including 7.5(a)'s bar on implying a government connection), corresponding to Model Rules 7.1, 7.2, and 7.5. The committee also referenced the Workers' Compensation Commission fee rules (Rule 67-1205) in finding the "free" claim legitimate.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.5(a) / Model Rule 7.5: a trade name may be used only if it does not imply a connection with a government agency.
• South Carolina RPC 7.2(d) / Model Rule 7.2: an advertisement must include the name of at least one responsible lawyer.
• South Carolina RPC 7.1(a) / Model Rule 7.1: a lawyer shall not make a false or misleading communication.

Statutes:

• Workers' Compensation Commission Rule 67-1205(c): attorney fees for contested lost-wage and medical-cost recoveries.

See also

• SC Bar Ethics Op. 92-03: Lawyer as Title Insurance Agent
• SC Bar Ethics Op. 91-21: Law Firm as a Title Insurance Agency

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-27/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 91-27

The inquirer desires to run the following legal advertisement: WORKERS COMPENSATION LEGAL CLINIC Free Assistance in obtaining:

Medical Treatment Lost Pay CALL: (phone number)

Question:
A. Does this advertisement constitute use of a trade name under Rule 7.2 and 7.5?
B. Is this advertisement misleading under Rule 7.1 (a)?

Summary:
A. Use of the phrase "Workers Compensation Legal Clinic" constitutes use of a trade name in violation of Rules 7.2 and 7.5, because it implies that the clinic is sponsored by the Worker's Compensation Commission, and the lawyer responsible for the advertisement is not named.
B. This advertisement is not misleading because no reasonable person could assume that receipt of medical treatment or lost pay is automatic in every case. Instead, the inquirer is simply noting that there is no charge for these services.

However, the offer of free assistance must be for genuinely free assistance. The lawyer may obtain a fee for other services but cannot condition the free assistance on the requirement that the client pay a fee on a related or unrelated matter.

Opinion:
A. Rule 7.5(a) states that "A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency..." Rule 7.2 (d) requires that any advertisement "shall include the name of at least one lawyer responsible for its content." B. Under Rule 67-1205(c)(2) of the South Carolina Workers' Compensation Commission, it is proper for an attorney to charge a fee up to 1/3 of past due lost wages if the employer disputed the entitlement of the employee to the lost wages. Similarly, under the introductory paragraph of Rule 67-1205(c), in certain situations an attorney is entitled to a fee for recovery of medical costs in contested liability cases. Therefore, an attorney who is representing that under no circumstances will he charge a fee for lost wages or medical treatment is engaging in legitimate advertising in disclosing to the public that he is willing to reduce his fees significantly. The reference to free assistance is thus proper.

One could argue that the words "in obtaining" constitute a guarantee that all cases will result in recovery. However, this is simply not the common meaning of such words. The words technically states that the attorney's assistance will be free, not that the "obtaining" will occur in every case.

However, the offer of free assistance must be for genuinely free assistance. The lawyer may obtain a fee for other services but cannot condition the free assistance on the requirement that the client pay a fee on a related or unrelated matter.