Could a Tennessee lawyer advertise using a phone number or address in a distant city without disclosing that the lawyer had no local office there?

Plain-English summary

A local bar association asked whether a lawyer who maintained an office in one city, such as Knoxville, and advertised in a distant city, such as Chattanooga, without stating the lack of a physical presence there, violated DR 2-101 of the Code of Professional Responsibility. DR 2-101(A)(1) barred a lawyer from using public communications containing a false, fraudulent, misleading, or deceptive statement or claim, including a statement that omitted a fact necessary to keep the statement, considered as a whole, from being materially misleading.

The opinion found that an advertisement of this kind was misleading by omission, because it could lead potential clients to assume the advertising lawyer maintained a full- or part-time office locally when the lawyer did not, with consequences for clients' ability to investigate the lawyer's reputation and qualifications, their ease of contacting the lawyer, and their willingness to divulge confidences before learning the lawyer's actual location. The opinion drew on Bates v. State Bar of Arizona for the principle that a state may require "limited supplementation" in attorney advertising to keep consumers from being misled, and on Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio for the principle that a state may require disclosure of purely factual, uncontroversial information reasonably related to preventing consumer deception.

The opinion drew two lines limiting the disclosure duty. If a nonresident attorney maintained an office attended at least once weekly on a regular basis, the potential for consumer confusion was diminished. And there was no ethical problem with a nonresident attorney practicing in a contiguous county at all, because the opinion treated the inconvenience of that arrangement as minor and commonly accepted by consumers. Outside those circumstances, an attorney without a local office, or with an office not attended weekly, could not advertise in a noncontiguous county without disclosing that fact to the consumer.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 89-F-120 on December 10, 2021, "due to changes in the laws or rules." The opinion was also issued in 1989, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. A vacated opinion has no continuing force and is not the Board's current guidance. It is reproduced and summarized here only as a historical research record. Do not rely on it as current; the current advertising rules are at Tennessee RPC 7.1 through 7.3. Verify the current rules before acting.

Common questions

Q: Did a Tennessee lawyer have to disclose the lack of a local office when advertising in a distant city?

A: As originally issued, yes. The opinion found that omitting this fact could mislead consumers under DR 2-101(A)(1), since potential clients could assume an advertising lawyer maintained a local presence.

Q: Were there exceptions to the disclosure requirement?

A: Yes. The opinion found no disclosure was needed if the nonresident attorney attended a second office in that area at least once a week on a regular basis, or if the attorney practiced in a county contiguous to the attorney's home county.

Q: Is this opinion still in force?

A: No. The Board vacated Formal Ethics Opinion 89-F-120 on December 10, 2021. It is preserved here only as a historical research record.

Background and rules framework

The opinion interpreted former DR 2-101(A)(1), which barred a lawyer from using public communications containing a false, fraudulent, misleading, or deceptive statement, including one that omitted a fact necessary to keep the statement from being materially misleading. The modern analog is Model Rule 7.1 / Tennessee RPC 7.1 (communications concerning a lawyer's services must not be false or misleading).

Citations and references

Rules of Professional Conduct (former Code):

• DR 2-101(A)(1) (barring misleading public communications, including by omission of a necessary fact). Modern analog: Model Rule 7.1 / Tennessee RPC 7.1

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), a state may require "limited supplementation" in attorney advertising "so as to assure that the consumer is not misled"
• Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), upholding a rule requiring disclosure of "purely factual and uncontroversial information" reasonably related to preventing deception of consumers

See also

• NY State Bar Op. 756: Street Address Required in Legal Advertising
• NJ ACPE/CAA Joint Op. 718: Bona Fide Office and Listing of Offices

Source

• Landing page: https://www.tbpr.org/ethic_opinions/89-F-120

Original opinion text

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

89-F-120 - Vacated*

*Vacated by the Board of Professional Responsibility on December 10, 2021 due to changes in the laws or rules.

FORMAL ETHICS OPINION 89-F-120

Inquiry is made whether a lawyer may advertise in an area, using a local telephone number and/or address, when the lawyer's actual office is in another area.

A local bar association asks whether a lawyer, who maintains an office in one city, such as Knoxville, and advertises in a city a considerable distance away, such as Chattanooga, without stating in the advertisement the lack of a physical presence in the city advertised in, is violating DR 2-101 of the Code of Professional Responsibility.

DR 2-101(A)(1) states:

A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use or participate in the use of, any form of public communication containing a false, fraudulent, misleading, or deceptive statement or claim. A statement or claim is false, fraudulent, misleading or deceptive if it:

Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement, considered as a whole, not materially misleading;

Under the facts of the inquiry, DR 2-101 is violated because the advertisement could, by omission of a necessary fact, namely that the advertising lawyer is not a local lawyer, mislead potential clients who may prefer to engage local counsel and who could assume any lawyer who advertises in a local newspaper or telephone directory maintains a full or part-time office in that locality. Prospective clients could divulge confidences and retain a lawyer without first being told the location of the lawyer. Prospective clients could retain lawyers with whom their ease of contact could be hindered. Their ability to investigate the lawyer's reputation and qualifications would be more difficult if the lawyer is not from that area.

If the non-resident attorney maintains an office to which he or she attends at least once weekly on a regular weekly basis, then the potential problems listed above are diminished. And there is no ethical problem if the non-resident attorney practices in a contiguous county because the disadvantages and inconvenience of such an arrangement are minor and are commonly accepted by consumers.

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977) the U. S. Supreme Court said a state may require lawyers to provide "limited supplementation" in any advertisement "so as to assure that the consumer is not misled." In Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 1 Lawyer's Manual Professional Conduct 795 (1985) the court upheld a rule requiring disclosure of "purely factual and uncontroversial information" that is "reasonably related to the State's interest in preventing deception of consumers."

An attorney without an office in the county he or she advertises in or with an office but without attendance on a regular weekly basis may not advertise in a noncontiguous county without imparting that information to the consumer. By this disclosure requirement the public's interest is protected with minimal burden on the attorney.

This 8th day of September, 1989.

ETHICS COMMITTEE:

Cornelia A. Clark

Cecil D. Branstetter

Jerry C. Colley

APPROVED AND ADOPTED BY THE BOARD