THE OKLAHOMA BAR JOURNAL 88 | APRIL 2024 Ethics & Professional Responsibility Advertising: The Basics By Richard Stevens LAWYERS OFTEN ASK ABOUT the rules governing advertising. The rules that govern lawyer advertising in Oklahoma are found at 7.1-7.5 of the Oklahoma Rules of Professional Conduct. The rules are in a section of the ORPC titled “Information About Legal Services.” ORPC 7.1 COMMUNICATION A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the communication considered as a whole not materially misleading. ORPC 7.1 requires that advertising and any other communications about a lawyer’s services be truthful and not misleading. The prohibition of false or misleading statements includes both explicit falsehoods and falsehoods implicit in other claims. Lawyers have been disciplined for misleading statements regarding qualifications, the number of lawyers in a firm, the legal experience of lawyers in a firm and the outcomes of cases handled by the lawyer or law firm. The rule also prohibits lawyers from making statements that are literally true but misleading. A lawyer omitting important information, such as information about not being admitted to a particular jurisdiction may violate this rule. A lawyer who provides information in a manner that would cause a reasonable person to reach an unwarranted conclusion about the lawyer or the lawyer’s services may also violate this rule. Omissions about fees, such as advertisements that no fee will be charged, may violate the rule unless it also states that clients are responsible for costs and expenses of litigation. A literally true statement of past results in a particular case or cases may violate the rule if it creates an unjustified expectation that the lawyer can obtain the same results without reference to specific facts and circumstances of each client’s case. In other jurisdictions, statements of past results have been found to be misleading if not accompanied by a disclaimer that each case is different, and the client’s results may vary. ORPC 7.2 ADVERTISING ORPC 7.2 allows lawyers to “advertise services through written, recorded or electronic communication, including public media,” but prohibits lawyers from paying a person to recommend the lawyer’s services. The rule also excludes from that prohibition the payment of reasonable costs of advertising or communications allowed by the rules. The lawyer may also pay the usual charges of a legal service plan or a qualified lawyer referral service. Lawyers may refer clients to another lawyer or a non-lawyer professional, pursuant to an agreement not prohibited by the rules, which provides for the referral of clients to the lawyer. The referral agreement may not be exclusive, and the client must be informed of the existence and nature of the agreement. In other jurisdictions, statements of past results have been found to be misleading if not accompanied by a disclaimer that each case is different, and the client’s results may vary.
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