BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1995-14

(Inquiry No. )

Topics:
Advertising Minimal Fees and Fee Ranges.
Digest:
An attorney who advertises a minimal fee, or a range of fees, must clearly state in an obvious fashion that the lowest fee stated is a minimal fee, and may not separate this Qualifying language from the fee by asterisk or other artifice. Any minimal fee must reflect the usual or customary fee charged by the attorney most frequently for similar services. An attorney need not include in the ad the fact that a written statement of the scope of the advertised service is available to the public.
Code Provisions:
DR 2-101(A)
DR 2-101(B)
DR 2-101(C)
EC 2-9
EC 2-10
Facts Presented: –
Inquiry:
May an attorney advertise fees for legal services by advertising only a particular minimum fee and then placing a footnote next to that fee stating that the advertised fee is “from”? Additionally, the inquirer asks if the advertisement must contain a statement that there is available to the public, free of charge, a written statement clearly describing the scope of the advertised service as required by DR 2-101(C)(4)?
Determination:
An attorney may advertise a range of fees or a minimum fee, based upon the certain specific conditions set forth in this opinion. The advertisement need not set forth that a statement of services for the advertised price is available to the public free of charge.
Analysis:

The initial question posed must first be measured against prevailing constitutional standards. Under Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which was the first attorney fee case determined by the Supreme Court of the United States, and its progeny, states may not prohibit advertisements of legal fees unless they are false, deceptive or misleading. This portion of the decision in Bates is codified in the Lawyer’s Code of Professional Responsibility as DR 2-101(A):

DR 2-101[1200.6] Publicity and Advertising,

A.- A lawyer on behalf of himself or herself or partners or associates, shall not use or disseminate or participate in the preparation or dissemination of any public communication containing statements or claims that are false, deceptive, misleading or cast reflection on the legal profession as a whole.

Therefore, any advertisement which advertises a minimum fee may do so as long as it is not false, deceptive or misleading.

The inquiring attorney, however, has asked if advertising “from” a specific minimum fee is permissible. By analogy, this is most closely controlled by DR 2-101(C) (4) which specifically permits that a range of fees may be advertised.

DR 2-101 (1200.6] Publicity and Advertising.

C. It is proper to include information, provided its dissemination does not violate the provisions of subdivisions (A) and (B) of this section, as to:

4.- legal fees for initial consultation; contingent fee rates in civil matters when accompanied by a statement disclosing the information required by subdivision L of this section; range of fees for services, provided that there be available to the public free of charge a written statement clearly describing the scope of each advertised service; hourly rates; and fixed fees for specified legal services. (emphasis added)

Thus, any advertisement which sets forth a range of fees, or by analogy a starting or minimum fee, that is not false, deceptive or misleading, is permissible.

The questions which remain, however, are not so simple. When does advertising a range of fees become misleading; must the statement “from” be explained, or may it be connected to the fee only by asterisk; and, as posed by the inquiring attorney as his second question, must the advertisement advise the potential client that a written explanation of charges is available to the general public free of charge.

When is a Minimum Fee Misleading?

A minimum fee or a lowest fee in a range of fees is misleading when it is not reasonably related to the actual price charged for the advertised service by the advertising attorney.

The Bates requirement that advertised prices not be misleading demands that the average reader understand at a glance that the minimum fee, or the lowest fee of a range of fees, is at least one that is regularly charged by the attorney to perform the advertised service in full.

EC 2-10 states in pertinent part that “a lawyer should strive to communicate such information without undue emphasis upon style and advertising stratagems which serve to hinder rather than to facilitate intelligent selection of counsel.” Moreover, EC 2-9 states that “[t]he attorney/client relationship is personal and unique and should not be established as the result of pressures and deception.”

DR 2-101(A), as informed by EC 2-9 and 2-10, clearly would prohibit any advertising of a minimum fee or lowest fee of a range of fees that is not rationally related to the average or customary fee charged by the attorney for the advertised service.

The question then, is when is an advertised minimum fee, or lowest fee in a range of fees, reasonably related to the average price charged by the attorney. This cannot be answered with numerical certainty. What is required is that the advertised minimum fee or lowest fee in a range of fees not be a “low-ball” or “loss-leader” figure. Helpful to the analysis is N.Y. State Bar Opinion 563 (1984) addressing “discounted” fee advertising, which defines a customary fee as “the fee charged by the lawyer for most of his engagements involving similar work.”

The ideal examination would require that the! minimum fee advertised reflect the actual fee charged by the lawyer most frequently for the same or similar engagement, and must include all customary client services.

May a Minimum Fee Be Advertised By Stating “From” the Fee Advertised?

The use of the word “from” to indicate a starting fee is a common stratagem in consumer targeted advertising. A reader of average experience and intellect would know through frequent exposure to this tactic that the word “from”, appearing directly in front of an advertised fee, indicates that this is a starting or lowest fee.

Due to consumer familiarity with the above described stratagem, the Committee believes the use of the word “from” conspicuously and with the same prominence as the advertised fee is appropriate to indicate a minimum fee.

May an Advertisement of a Minimum Fee Utilize an Asterisk Linking the Advertised Fee to Conditioning Language Advertising that the Stated Fee is a minimum Fee?

As set forth above EC 2-10, in informing DR 2-101(A), states that an attorney may not engage in artifice or stratagems that are geared towards misleading the reader.

The use of an asterisk to position the fact that the advertised fee is only a minimal fee or the lowest fee in a range of fees in an inconspicuous place is inappropriate. Such usage is an intentional device aimed at causing the reader at first glance to believe that he or she can attain legal Services at an unrealistic low price. In fact, the use of an asterisk to avoid directly advising the reader that the stated fee is only a minimum fee or is the lowest fee in a range of fees is consistent with the false, misleading and deceitful advertising expressly prohibited by Bates and DR 2-101 (A).

The advertising attorney must clearly and immediately indicate that a fee is a minimum fee or the lowest fee in a range of fees. They should not attempt to deceive the reader by the use of an asterisk with the requisite qualitative language disingenuously placed at the bottom of the advertisement or in the “fine print”.

DR 2-101(C) states in pertinent part that “It is proper to include information, provided its dissemination does not violate the provisions of subdivisions (A) and (B) of this section, as to: . . range of fees for services, provided that there be available to the public free of charge a written statement clearly describing the scope of each advertised service…”

Nothing in the above language requires that the availability of the free written statement must be contained in the advertisement. The language seems to indicate only that the intent of the rule was that each lawyer who advertises a range of fees have available to the public free of charge the requisite written statement.

However, what the rule does indicate is that the burden and responsibility of disseminating or providing the written statement is on the attorney. Thus, any attorney who advertises a range of fees or a minimum fee must, prior to retention or discussion of terms of employment, give each inquiring potential client a copy of that written statement.

(Approved by Executive Committee on 10/3/95; Approved by Full Committee on 10/25/95)