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2014-05-28-01

The Supreme Court of South Carolina

In re: Proposed Revision to Rule 7.1 of the Rules of Professional Conduct, Rule 407, SCACR.

Appellate Case No. 2014-000107


ORDER


The Commission on Lawyer Conduct has proposed a revision to Rule 7.1 of the Rules of Professional Conduct, Rule 407, SCACR, regarding the prominence of disclaimers used in lawyer advertisements.  Specifically, the Commission recommends adding the following language as section (f) of the rule:

(f) Disclaimers.  In addition to any specific requirements under these rules, any disclosures or disclaimers required by these rules to appear in an advertisement or unsolicited written communication must be of sufficient size to be clearly legible and prominently placed so as to be conspicuous to the viewer.  If the disclosure or disclaimer is televised or broadcast in an electronic or video medium, it shall be displayed for a sufficient time to enable the viewer to see and read the disclosure or disclaimer.  If the disclosure or disclaimer is spoken aloud, it shall be plainly audible to the listener.  If the statement is made on a website, online profile, Internet advertisement, or other electronic communication, the required words or statements shall appear on the same page as the statement requiring the disclosure or disclaimer.

We find the proposed language appropriate, but that it should be added to Rule 7.2 of the Rules of Professional Conduct.  Pursuant to Article V, § 4, of the South Carolina Constitution, we hereby amend Rule 7.2 to include the language proposed by the Commission as section (i).

This amendment shall become effective July 1, 2014.  A copy of the amended rule is attached.

s/Jean H. Toal                                  C.J.

s/Costa M. Pleicones                          J.

s/Donald W. Beatty                             J.

s/John W. Kittredge                             J.

s/Kaye G. Hearn                                  J.

Columbia, South Carolina
May 28, 2014

cc:    
Deborah Stroud McKeown, Esquire
Alice F. Paylor, Esquire
Robert S. Wells


RULE 7.2: ADVERTISING

(a) Subject to the requirements of this Rule and Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.  All advertisements shall be predominately informational such that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of a lawyer predominates and the communication includes only a minimal amount of content designed to attract attention to and create interest in the communication.

(b) A lawyer is responsible for the content of any advertisement or solicitation placed or disseminated by the lawyer and has a duty to review the advertisement or solicitation prior to its dissemination to reasonably ensure its compliance with the Rules of Professional Conduct. The lawyer shall keep a copy or recording of every advertisement or communication for two (2) years after its last dissemination along with a record of when and where it was disseminated.

(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service, which is itself not acting in violation of any Rule of Professional Conduct; and

(3) pay for a law practice in accordance with Rule 1.17.

(d) Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer responsible for its content.

(e) No lawyer shall, directly or indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the same firm unless the advertisement discloses the name and address of the nonadvertising lawyer, the relationship between the advertising lawyer and the nonadvertising lawyer, and whether the advertising lawyer may refer any case received through the advertisement to the nonadvertising lawyer.

(f) Every advertisement that contains information about the lawyer's fee shall disclose whether the client will be liable for any expenses in addition to the fee and, if the fee will be a percentage of the recovery, whether the percentage will be computed before deducting the expenses.

(g) A lawyer who advertises a specific fee or range of fees for a particular service shall honor the advertised fee or fee range for at least ninety (90) days following dissemination of the advertisement, unless the advertisement specifies a shorter period; provided that a fee advertised in a publication which is issued not more than annually, shall be honored for one (1) year following publication.

(h) All advertisements shall disclose the geographic location, by city or town, of the office in which the lawyer or lawyers who will actually perform the services advertised principally practice law.  If the office location is outside a city or town, the county in which the office is located must be disclosed.  A lawyer referral service shall disclose the geographic area in which the lawyer practices when a referral is made.

(i) In addition to any specific requirements under these rules, any disclosures or disclaimers required by these rules to appear in an advertisement or unsolicited written communication must be of sufficient size to be clearly legible and prominently placed so as to be conspicuous to the viewer.  If the disclosure or disclaimer is televised or broadcast in an electronic or video medium, it shall be displayed for a sufficient time to enable the viewer to see and read the disclosure or disclaimer.  If the disclosure or disclaimer is spoken aloud, it shall be plainly audible to the listener.  If the statement is made on a website, online profile, Internet advertisement, or other electronic communication, the required words or statements shall appear on the same page as the statement requiring the disclosure or disclaimer.