Can lawyers advertise to find plaintiffs for a class action or other lawsuit?

Plain-English summary

Opinion E-83-1 addressed whether attorneys may advertise for clients in a class action suit or in any other lawsuit. The committee answered yes.

The committee identified the relevant Supreme Court Rules: SCR 20.07(1), which barred public communications containing professionally self-laudatory statements calculated to attract lay clients, and SCR 20.08(7), which permitted a lawyer to advertise the ability to provide legal services except where false, misleading, deceptive, or unfair, and suspended any conflicting provision of Chapter 20. It directed attention to the official comment to SCR 20.08(7). The committee noted that the Wisconsin Supreme Court had recently addressed whether particular newspaper advertisements were false, misleading, or deceptive in In re Disciplinary Proceedings Against Marcus and Tepper. Relying heavily on the U.S. Supreme Court's decision in In re R.M.J., the court held that the party seeking discipline (the Board of Attorneys Professional Responsibility) bears the burden of proving by clear and satisfactory evidence that advertisements violate the rule, and that the particular advertisements were not inherently false, misleading, or deceptive (citing also In re Discipline of Appert). In light of those rules and decisions, the committee answered the question in the affirmative.

Currency note

This opinion was issued in 1983, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's advertising provisions (SCR 20.07, 20.08). Lawyer advertising and communications are now governed by SCR 20:7.1 and 20:7.2 / Model Rules 7.1 and 7.2. Subsequent rule amendments, court decisions, and 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 Treat this page as historical context, not current guidance.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: Could Wisconsin lawyers advertise to recruit plaintiffs for a class action?

A: Yes, under E-83-1, provided the advertising was not false, misleading, deceptive, or unfair under SCR 20.08(7).

Q: Who bore the burden if an advertisement was challenged as misleading?

A: Per the court decision the committee relied on (Marcus and Tepper), the party seeking discipline bore the burden of proving by clear and satisfactory evidence that the advertisements violated the rule.

Background and rules framework

The opinion interpreted the former Code's advertising rules, SCR 20.07(1) (self-laudatory statements) and SCR 20.08(7) (advertising availability to provide legal services), against the Wisconsin Supreme Court's application of U.S. Supreme Court commercial-speech doctrine in Marcus and Tepper and R.M.J. Advertising is now governed by SCR 20:7.1 and 20:7.2 / Model Rules 7.1 and 7.2.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.07(1), 20.08(7) / Model Rules 7.1, 7.2 (advertising availability to provide legal services) (former Code provisions)

Cases:

• In re Disciplinary Proceedings Against Marcus and Tepper, 107 Wis. 2d 560, 320 N.W.2d 806 (1982), burden of proof in advertising discipline
• In re R.M.J., 455 U.S. 191 (1982), commercial-speech protection of lawyer advertising
• In re Discipline of Appert, 315 N.W.2d 204 (1981), lawyer advertising discipline

See also

• WI Ethics Op. E-83-16: Follow-Up Calls After Mailed Advertising
• WI Ethics Op. E-84-13: Direct Mail Advertising
• WI Ethics Op. E-83-10: Nonparty Funding of Class Action Expenses

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-83-1.pdf