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                                         110 N.J.L.J. 365
                                        September 23, 1982


Appointed by the New Jersey Supreme Court


Attorney Advertising Specialization in
Legal Problems of the Elderly and Providing
Services at a Reduced Fee in Certain Cases

    The basic question is whether an attorney may advertise that he specializes in legal problems of the elderly (such as Social Security Supplemental Security Income, Medicare, Medicaid, Senior Health Insurance, problems brought about by the death of a spouse and offers his services at a reduced fee (or at no fee to indigent seniors).
    He says that attorneys are now permitted to advertise fields of expertise and states it is lawful to advertise the amount of fees for specific legal matters.
    He asks, "Why should he not be permitted to advertise reduced fees for seniors who can afford them or no fees for those who cannot afford to pay?"
    Bates v. State Bar of Arizona, 433 U.S. 350 (1977), held that lawyers must be permitted to advertise the fees they charge for certain "routine" legal services.
    The Court concluded that this sort of price advertising was not "inherently" misleading and therefore could not be prohibited on that basis.
    The Supreme Court of the United States in In re R.M.J., U.S. , 102 S.Ct. 929, 71 L.Ed.2d 64 (1982) has also said,
        But the decision in Bates nevertheless was a narrow one. The Court emphasized that advertising by lawyers still could be regulated. False, deceptive, or misleading advertising remains subject to restraint and the Court recognized that advertising by the professions poses special risks of deception. Because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising. (footnote omitted) Id. at 935-36, 71 L.Ed.2d at 72-3.

    The Court suggested that claims as to quality or in-person solicitation might be so likely to mislead as to warrant restriction.
    The New Jersey Supreme Court, after the Bates decision, amended DR 2-101, "Publicity and Advertising", and provided the following qualification:
        (A)    A lawyer shall not knowingly make any representation about his ability, background, or experience, or that of the lawyer's partner or associate, or about the fee or any other aspect of a proposed professional engagement, that is false, fraudulent, misleading, or deceptive, and that might reasonably be expected to induce reliance by a member of the public.

        (B)    Without limitation a false, fraudulent, misleading or deceptive statement or claim includes statement or claim which: ...

        (3)    It is intended or is likely to create an unjustified expectation;

Subparagraph (5) in the above "relates to legal fees other than..." (It lists several paragraphs, (a) through (f), setting forth the parameters dealing with legal fees.)
    It is clear that the inquirer has given little thought to the language of the Bates case, the R.M.J. case, or DR 2-101, paragraphs (A), (B) (3), (5) and (6), which deals with false, fraudulent, misleading, or deceptive statements, or contain a representation or implication that is likely to cause an ordinarily prudent person to misunderstand or be deceived and is likely to fail to contain reasonable warnings or disclaimers necessary to make a representation or implication not deceptive.
    We are not dealing with any intention to deceive on the part of the lawyer. We are concerned that the proposed legal advertising is inappropriate for the so-called prudent, but in the terms of the U. S. Supreme Court, "unsophisticated" person who is likely to be misled and have an unjustified expectation of the fees and services.
    When the advertisement sets forth no definite fee:
    A. For initial consultation;
    B. For fixed or contingent charges;
    C. For range of fees for specific legal services;
    D. For specified hourly rates;
    E. For availability of credit arrangements; it is improper advertising. The advertising in question is misleading and deceptive; it might reasonably be expected to induce reliance by a member of the public who has his own concept of the right to a reduced fee or no fee because of his particular financial circumstances. He does not know what is a proper fee, let alone a proper reduced fee, but he may have expectations far and beyond anything the inquirer could anticipate. In our opinion the proposed advertising does not meet the requirements of DR 2-101 and is therefore improper.
    One other comment must also be made. Inquirer's statement that he is a specialist in the indicated fields is disapproved.
Such advertising is not permitted. See DR 2-105(A)(2)

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