Link to original WordPerfect Document
133 N.J.L.J. 652
March 1, 1993
2 N.J.L. 353
March 8, 1993
COMMITTEE ON ATTORNEY ADVERTISING
Appointed by the New Jersey Supreme Court
SUPPLEMENT TO OPINION 13
Attorney Participation in Commercial
Cooperative Advertising Programs
Immediately following the publication of Opinion 13, 132
N.J.L.J. 267 (October 5, 1992), 1 N.J.L. 1588 (October 12, 1992),
the Committee received inquiries submitted on behalf of two
separate commercial cooperative advertising programs. The
inquiries were accompanied by videocassettes containing the
programs' proposed television advertisements. The Committee
analyzed the techniques employed in these proposals. After careful
review, the Committee determined that more clarification is
necessary to ensure that "the dividing line between acceptable
advertising ('public communication') and a prohibited referral
service," Id., is apparent in a television broadcast.
The first program's advertisements show a spokesperson noting
that injured people may have a right to recover for their injuries
and that they should call the program at its toll-free number in
order to be put in touch with a lawyer near them. The spokesperson
then mentions the telephone number while it appears graphically on
the screen. During the course of a 30-second advertisement, the
telephone number is repeated verbally two to three times and twice
graphically.
Additionally, during the first 20 seconds of the
advertisement, the names, addresses and telephone numbers of the
participating attorneys appear on the bottom half of the television
screen. The letters and numbers are large enough to be easily
read, and each name is on screen for approximately 10 seconds.
During the last eight seconds of the advertisement, the image
of the spokesperson is reduced in size and moved to the upper left-
hand corner of the screen. The toll-free number appears once again
atop the balance of the screen. The statement "To select a lawyer
yourself call for a complete list of the participating attorneys"
and an alternate toll-free telephone number appear directly
underneath the primary toll-free number. The alternate telephone
number is printed in numerals approximately three-quarters the size
of the primary toll-free number. The statement introducing the
alternate number is printed in slightly smaller letters.
In the 60-second version of the advertisement, the primary
toll-free number appears virtually alone for the first 30 seconds.
During the last 30 seconds, the names, addresses and telephone
numbers of the participating attorneys are on the screen for 24
seconds, and the two toll-free numbers are on the screen together
for approximately six seconds. The size of the letters and
numerals is the same as in the 30-second advertisements. All of
the advertisements contain a disclosure that the advertising is
paid for by the participating attorneys.
The second program's advertisement contains what it refers to
as a "generic message" alerting the viewer of the need to call an
attorney if an injury has been suffered in an automobile or
motorcycle accident. At the beginning of the advertisement, the
following statement is printed in relatively small letters at the
bottom of the screen: "Advertising paid for by sponsoring
attorneys. Not a lawyer referral service." Near the end of the
generic message, the following statement, together with a toll-free
telephone number, appears on the screen:
Call the 800 number to be placed in touch with the
independent law firm responding to calls from your
geographical area. Geographical areas serviced
listed under the firm's address.
The names and addresses of six of the participating law firms,
along with their mutually exclusive reserved geographical areas,
are printed below the text. The names remain on screen for
approximately seven seconds and are followed by the names and
addresses of the remaining seven participating firms, which are
also on screen for seven seconds.
Unlike the first program, which uses automated call-switching
technology, viewers calling this program's toll-free number are
asked to give their name, telephone number and zip code. The zip
code is matched to each law firm's exclusive geographical area, and
the appropriate law firm is given the name and telephone number of
the caller. The law firm returns the viewer's call.
As we indicated in Opinion 13, there are three basic factors
which distinguish referral services from acceptable advertising.
Our discussion of them bears repeating, and follows:
1. Limited access to information. Unlike an
advertising medium such as the Yellow Pages,
consumers interacting with referral services do not
have access on their own to the entire list of
participating attorneys. Rather, this access is
controlled by the referral source. Scrolling of
names on a television screen at a pace far too
rapid to allow retention or even recognition is a
current illustration of this limited access.
2. Directive conduct. Explicitly or implicitly,
referral services guide consumers to specific
attorneys. Unlike Yellow Pages or even public
media advertising, there is a directing
intermediary, not just an encounter between the
consumer and the passive information made available
by the attorney. This directive conduct tends to
invite from the consumer a sense of reliance.
3. Public purpose. The historical regulation of
referral services has invested the existing bar-
related services with an aura of public purpose.
While there is undeniably a business intent on the
part of the participating lawyers, the bar
association and non-profit (in the ABA Model Rules)
trappings connote an overriding public purpose of
putting people in touch with lawyers, rather than
making money for the referral service. While a
profit-making referral service may not be
inherently flawed (if it is a way to finance the
provision of more information to consumers), the
temptation to make the greatest possible profit
from the fee to lawyers for entry onto the referral
list cuts sharply against a public purpose of
providing the greatest possible amount of
information about the largest possible number of
lawyers. Concern about this primary commercial
purpose of a profit-making referral scheme may be
assumed to undergird RPC 7.3's limitation of
impermissible referral activities to those
affiliated with bar associations. We recognize
that non-profit referral services not affiliated
with bar associations might well serve a similar
public purpose.
1. We are satisfied that the two advertising programs
described above do not impermissibly limit a consumer's access to
the entire list of participating attorneys. Although they differ
in the size of lettering employed and amount of time information
remains on screen, both programs present the names and addresses
(and in the case of the first program, telephone numbers) of the
participating attorneys in a manner that permits recognition and
retention. Scrolling is not employed.
2. There is no question that each program contains an element
of directive conduct that "guides" a consumer to a specific
participating attorney. In fact, both engage in such conduct
explicitly. For example, the second program's advertisement
includes the following written statement:
Participating independent law firms and attorneys.
Call the 800 number to be placed in touch with the
independent law firm responding to calls from your
geographical area. Geographical areas serviced
listed under the firm's address.
Disclosures such as this go a long way toward placing
consumers on notice that calls to the toll-free number will connect
them with a participating attorney, not necessarily the "right"
attorney. However, given the nature of the television medium, they
do not go quite far enough. Reinforcement is necessary.
Consequently, upon displaying, and having the narrator recite, the
toll-free telephone number for the first time, the narrator will
henceforth be required to make the following preliminary statement:
"To be connected with a participating lawyer or law firm near you,
call... ." Requiring the preliminary statement to be made orally
as well as graphically will help eliminate any confusion consumers
may have concerning the parties they are actually calling.
3. Compared to lawyer referral services, commercial
cooperative advertising programs are of relatively recent origin.
Given the public's familiarity with referral services, it is easy
to see how confusion might arise.
As we stated earlier, the historical regulation of referral
services has invested the existing bar-related services with an
aura of public purpose. Consumers have come to expect that upon
calling such services they will be given the name of an attorney
"approved by the bar association" they can trust. Therefore, it is
imperative that steps be taken to dispel any notion on the part of
consumers that they will be "referred" by a bar-sponsored and
approved service.
In Opinion 13, we held that all advertisements published or
broadcast by a cooperative or commercial advertising program must
be accompanied by the phrase "ATTORNEY ADVERTISEMENT, NOT A LAWYER
REFERRAL SERVICE," prominently and effectively displayed in capital
letters. After reviewing the two instant inquiries, however, we
believe greater clarity is required concerning the entity engaged
in cooperative advertising, so as to more plainly distinguish it
from any implication that it is a lawyer referral service.
Additionally, given the nature of the television medium, we do not
believe that a graphic display of the statement, without more,
would have placed consumers on notice that the program was not a
referral service.
Consequently, the disclaimer should now read as follows:
"Attorney Advertisement. [Name of Program] is not a law firm or
lawyer referral service." As previously required, this disclaimer
must be prominently and effectively displayed. In order to
reinforce this message, the disclaimer must also be recited by the
narrator at least once prior to the conclusion of a television
advertisement.
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