Link to original WordPerfect Document

                                        133 N.J.L.J. 652
                                        March 1, 1993

                                        2 N.J.L. 353
                                        March 8, 1993


Appointed by the New Jersey Supreme Court


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.

* * *

This archive is a service of Rutgers University School of Law - Camden