North Carolina State Bar v. Culbertson
627 S.E.2d 644, 177 N.C. App. 89 (2006)
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Rule of Law:
An attorney's communication is inherently misleading and violates the Rules of Professional Conduct if it is likely to deceive a member of the public, even without extrinsic evidence of actual deception. Claiming to be "published" in a case reporter when one was merely listed as counsel of record is inherently misleading because it implies authorship of a judicial opinion.
Facts:
- K.E. Krispen Culbertson, a licensed attorney, placed an asterisk next to his name on his law office letterhead.
- A corresponding note on the letterhead stated, "Published in Federal Reports, 3d Series."
- Culbertson's law firm website described him as "one of the elite percentage of attorneys to be published in Federal Law Reports."
- The website also falsely claimed that the Federal Reports "contain the controlling caselaw [sic] of the United States."
- Culbertson was not the author of any judicial opinions; he had served as counsel of record for a party in two cases where the court's opinions were published in the Federal Reports.
- In those published opinions, Culbertson's name was listed as an attorney for one of the parties, but he was not credited or cited by the court.
Procedural Posture:
- The North Carolina State Bar filed a complaint against K.E. Krispen Culbertson with the Disciplinary Hearing Committee (DHC) of the State Bar.
- The DHC conducted a hearing and concluded that Culbertson's letterhead and website violated the North Carolina Revised Rules of Professional Conduct.
- The DHC issued an order and admonition, a written form of discipline for a minor violation.
- Culbertson (appellant) appealed the DHC's final order to the North Carolina Court of Appeals.
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Issue:
Does an attorney's statement on his letterhead and website claiming he was "Published in Federal Reports" and is part of an "elite percentage of attorneys" to be published, when he was only listed as counsel of record in reported cases, constitute a false or misleading communication in violation of the Rules of Professional Conduct?
Opinions:
Majority - Tyson, Judge
Yes. An attorney's communication that he is "published" in a case reporter when he merely served as counsel of record is an inherently misleading communication that violates professional conduct rules. The First Amendment does not protect misleading commercial speech, and states may prohibit it entirely. A statement is considered "inherently misleading" when it is likely to deceive, and in such cases, the disciplinary body does not need to present extrinsic evidence, like consumer surveys, to prove actual public deception. Here, the term "publish" implies authorship, leading a reasonable member of the public to believe Culbertson authored a judicial opinion, a significant and prestigious accomplishment he did not achieve. Furthermore, the website's claim that he is part of an "elite percentage" is misleading because admission to practice in federal appellate courts is open to any licensed attorney in good standing, not a select few. The statement that Federal Reports contain the "controlling caselaw of the United States" is also factually incorrect, as only U.S. Supreme Court precedent is controlling nationwide.
Analysis:
This case clarifies the boundary between permissible attorney advertising and sanctionable misconduct under the "false or misleading" standard. It establishes that technically true but contextually ambiguous statements that create a misleading impression of an attorney's qualifications or accomplishments are prohibited. The court's holding reinforces that disciplinary bodies have broad authority to regulate such speech without needing to prove actual consumer harm, as long as the communication is "inherently likely to deceive." This precedent serves as a strong caution to attorneys to avoid puffery or claims that could be misinterpreted by a layperson, particularly those that imply a level of achievement, like authorship, that is not accurate.
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