May an attorney offer a free one-half hour consultation in a "coupon book" which is sold to the general public by an advertising firm, where the attorney's regular fee schedule is an hourly billing?
This inquiry requires consideration of the regulations and guidelines promulgated to govern attorney communications.
Disciplinary Rule ("DR") 2-103(A) of the Texas Code of Professional Responsibility prohibits an attorney from recommending employment of himself to a potential client who has not sought his advice, except in limited circumstances. DR 2-103(A)(1) permits such communication where accomplished by an advertisement in the public media which conforms to the requirements of DR 2-101. DR 2-101 permits a lawyer to advertise in the public media within certain proscribed limits. Furthermore, DR 2-103(C) prohibits an attorney from paying a fee to anyone to recommend or secure his employment by a client, except as payment for advertising within the limits of DR 2-101.
At issue in the present question is whether the free-offer coupon would constitute an advertisement in the public media, and if so, whether it would come within the scope of permissible advertising under DR 2-101. Ethical Consideration ("EC") 2-10 of the Texas Code of Professional Responsibility offers guidance as to what constitutes advertising. It permits acceptable advertising in any advertising media, including printed media, radio and television. Printed media is explained to mean "mail; newspapers; magazines; classified telephone directories; city, county, and suburban directories; legal directories and law lists." In the opinion of this committee, the list is merely illustrative, and the more expansive phrase, "any advertising media" is to be interpreted broadly. Thus, we have previously found nonlisted forms of communication to be advertising materials involving public media (See Opinion 427 holding plastic telephone book covers to be public media). Likewise, we believe printed coupon books distributed to the public are advertising materials in the public media, which are permissible under the Texas Code of Professional Responsibility if they meet the requirements of DR 2-101.
DR 2-101(A) prohibits an attorney from making "any false or misleading communication" about himself or his services. Relevant to this question, a communication is false or misleading if it "(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." Similarly, DR 1-102 prohibits an attorney from engaging in any conduct "involving dishonesty, fraud, deceit, or misrepresentation." While the Code of Professional Responsibility does not define what constitutes false, deceptive or misleading communication, the Texas courts have addressed the matter in actions brought under the Texas Deceptive Trade Practices Act [whose provisions have been held applicable to the services of an attorney]. A false, misleading or deceptive act includes any conduct which is either false or has the capacity or tendency "to deceive the ignorant, the unthinking, and the credulous who do not stop to analyze but are governed by appearances and general impressions." Nagy v. First Nat. Gun Bankque Corp., 684 S.W.2d 114, 116 (Tex. App. - Dallas 1984, writ ref'd n.r.e.) also see Spradling v. Williams, 566 S.W.2d 561, 563 (Tex. 1978); Chrysler-Plymouth City, Inc. v. Guerrero, 620 S.W.2d 700, 705 (Tex. Civ. App.-San Antonio 1981, no writ).
In analyzing the free-offer coupon for its capacity to deceive or mislead, we consider both the context of the communication and the method of dissemination as they would impact on an ignorant, unthinking or credulous recipient. Communications, whether advertisements or solicitations, are to be examined for both content and method. See Bates v. State Bar of Arizona, 433 U.S. 350 (1977). The coupon at issue would be included with one from numerous other businesses all urging consumers to come into their auto shops, health spas, restaurants, or other establishments to purchase goods or services. The implication in the coupon, as well as in the coupon book as a whole, is that the potential client will receive a bargain.
The purchasers of coupon books could include the unsophisticated, unthinking, credulous person who, while he knows the relative bargain to be had in the coupons for pizza and hair styling, has no concept of the hourly rate for an attorney or the amount of time that can be consumed in resolving a legal matter. The coupon itself and the coupon books as a whole have the capacity to mislead the potential client into believing he can solve his legal matter cheaply, which may be far from the truth.
This concern is compounded by the fact that purchasers of the coupon book would have already paid some value for the coupon and thus could feel some compulsion to utilize the offer. Additionally, the coupon offer would likely carry an expiration date, thus pressuring the recipients to make a decision to seek legal services within a specified time frame. This pressure to reach a decision to hire an attorney distinguishes a discount or free offer coupon from the methods of communication which have received court approval. Protected communication methods have been ones where the potential clients are under no pressure to decide whether or not to employ the attorney. See Bates, 433 U.S. 350, and In re Primus, 436 U.S. 412 (1978). However, while the fact that the coupon books are purchased is an objectionable factor, it is not dispositive. Coupon books or packets that are distributed to the public at no charge may have the same capacity or tendency to mislead.
In the committee's opinion, a coupon is misleading if it states merely that the first half hour is discounted or free, without further disclosing the regular rate from which the discount or free one-half hour applies and that additional time may be required to resolve the particular matter for the client, which time will be billed at the hourly rate. Furthermore, an advertisement stating the hourly rate must also state that the client is entitled without obligation to an estimate of the fee likely in his case [EC 2-10].
Since the coupon book advertising at issue would not qualify as permissible advertising under DR 2-101, such advertising violates DR 2-103(A) and (C). It involves a recommendation of employment not requested by a potential client, and the payment of a fee to an agency to secure the employment. Moreover, such unprotected advertising also violates DR 2-103(E), which provides that "a lawyer shall not knowingly assist a person or organization that recommends, furnishes, or pays for legal services to promote the use of his services or those of his partners or associates." While DR 2-103(E) does permit a lawyer's dignified cooperation with legal service activities of certain specified organizations, an advertising agency does not qualify as one of the specified organizations.
A free one-half hour consultation coupon in a coupon book sold by an advertising firm constitutes a form of advertising and is subject to the restrictions of DR 2-101 of the Texas Code of Professional Responsibility. A discount or free-offer coupon without the further disclosure discussed earlier fails to come within the scope of advertising permissible under DR 2-101 because it has the capacity to mislead. Accordingly, advertising by means of a free-offer or discount coupon in a coupon book sold by an advertising firm violates DR 2-103(A), (C) and (E). It involves a recommendation of employment not requested by a potential client, and the payment of a fee to an agency to promote an attorney's services. Therefore, without the disclosures discussed earlier, advertising by means of a free one-half hour consultation coupon in a coupon book distributed to the general public by an advertising firm is not permitted under the Texas Code of Professional Responsibility.