BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 2012-1
(Inquiry No. )
Attorney advertising using testimonials, superlatives, and statements regarding success and prominence.
Attorney advertisements using superlative language and testimonials are permitted so long as they are not misleading, include the required disclaimer, and otherwise comply with the requirements for attorney advertisements.
Rules 5.4 (b), 5.8, 7.1 (a), 7.1 (a), 7.1 (c), 7.1 (d), 7.1 (e), 7.1 (e) (2), 7.1(e) (4), 7.1 (f)
1. Several separate inquiries were presented concerning the propriety of different attorney advertisements. These advertisements collectively use superlative language, advertisement puffery, and testimonials.
2. May an attorney promote his or her practice utilizing any of the following advertisements:
3. The first set of inquiries pertains to a series of glossy print advertisements which appear aimed toward businesses. These advertisements utilize superlatives about the firm (e.g., the firm’s goal is to provide the “most expert” legal counsel), and that the firm in question is successful and “one of the leading” firms in a particular area of law. Finally, one of the print advertisements notes that the firm may be a “reliable business partner” with its clients in advising them in their affairs.
4. A second set of inquiries regards radio advertisements incorporating testimonials from would-be clients of the firm. It is unclear from the inquiry whether these are real clients of the firm, actors playing the part of actual clients, or merely fictional testimonials. Apparently aimed at victims of poor economic times, the ads have these clients stating the following exemplars:
a. I was ten months behind on my mortgage payments and was in real danger of losing my home. The lender didn’t care. I had nowhere to turn. That’s when I found attorney _________. He not only saved my house but helped me get my mortgage payments reduced. Suddenly my home was in jeopardy. I tried to work things out with the bank but it was if I were talking to a brick wall. I would have lost everything. My life would have been ruined if I had not
found attorney ____________. He was truly a godsend.
b. If you’re in need of help, turn to the law offices of ______________, which has helped hundreds of homeowners reduce their mortgage payments to lenders and stay in their homes. Our office will review your situation and help you decide what strategy is right for you.
5. The New York Rules of Professional Conduct, as amended effective April 15, 2011, address attorney advertisements, primarily in Rule 7.1.
6. Rule 7.1(c) provides that an advertisement shall not: (1) include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefor; (2) include the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case;(3) use actors to portray a judge, the lawyer, members of the law firm, or clients, or utilize depictions of fictionalized events or scenes, without disclosure of same; (4) be made to resemble legal documents.
7. Rule 7.1 (d) states that advertisements that comply with paragraph (e) may contain the following: (1) Statements reasonably likely to create an expectation about the results a lawyer may achieve; (2) Statements comparing the lawyer’s services with those of other attorneys; … (4) Statements describing or characterizing the quality of the lawyer’s or law firm’s services.
8. Rule 7.1(e) then provides that an advertisement containing items from paragraph (d) is permissible provided that: (1) it does not violate paragraph (a) [which, among other things, prohibits advertising that “contains statements that are false, deceptive or misleading;”] (2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and (3) it is accompanied by the following disclaimer: “Prior results do not guarantee a similar outcome.”
9. As Comment 4 makes clear, attorney advertising must achieve the delicate balance of attracting the attention of the public, and, of utmost importance, must not mislead the public. Finally, Rule 7.1(f) provides that every attorney advertisement (other than those appearing in a radio, television, or billboard advertisement, or in a directory, newspaper, magazine, or other periodical) must clearly be labeled as “Attorney Advertising.”
10. Although attorney advertising may be unseemly to some in the profession, and may cross personal tastes, the Committee cannot rely upon subjective personal tastes or subjective judgment as to what is proper conduct. To the contrary, the Rules of Professional Conduct do not focus upon “good taste” but rather on not misleading the public, on specified disclaimers, and on the availability of factual support for the claims in the advertising. The inquiries posed, therefore, must be weighed against the requirements in the Rules, not subjective predilections.
11. The print advertisements in the first inquiry run afoul of some of the most basic requirements: The ads must clearly state “attorney advertising,” see Rule 7.1(f), and attorneys may not refer to themselves as business partners with their clients insofar as it would be misleading (especially in light of Rule 5.8, which addresses a continuous systematic relationship with non-legal professionals, and Rule 5.4(b), which generally prohibits partnerships between lawyers and non-lawyers if any of the activities of the partnership consist of the practice of law).
12. Further, the first inquiry’s print ads must also refrain from using the superlatives employed there because they will mislead at least some members of the public. Specifically, calling oneself the “most expert” counsel should not be employed. Words such as the “best” or the “most” are not supportable by factual backing and, therefore, may not be used in attorney advertising. Rule 7.1(e)(2) and Comment 12. Further still, an attorney is not permitted to advertise oneself as an “expert” in any field unless he or she holds a certificate certifying him or her as an expert in that field.
13. Nor may the advertisements refer to the firm as “one of the leading” firms in a particular area of legal practice, since that claim is ambiguous, subjective, and not factually supportable by the firm. The claim to be “one of the leading” firms would therefore not be in compliance with Rules 7.1 (a) and 7.1(e)(2).
14. To the extent the advertisements make permissible claims under Rule 7.1(d), they must go on to state that “Prior results do not guarantee a similar outcome,” in exactly those words. See N.Y. State 834 (2009). That disclaimer would be required if an advertisement refers to the success of the firm as trial attorneys.
15. By comparison, the proposed radio testimonial advertisements use acceptable “puffery” to promote the attorneys by stating that the client was desperate and seemingly was being ignored by creditors, and then was rescued by this particular attorney, who was a “godsend.” Although attorney advertisements cannot be misleading, the Committee does not believe that the public at large would be misled by this particular allegation of the Divine origins of the attorneys’ prowess. Similarly, if the testimonials are emblematic of how a client had no other options and was “rescued” by his attorney’s advice, or that the attorney has helped hundreds of others, this too is permitted as long as it is proper in all other respects (e.g., it can be factually supported at the time the claim is made and it includes the precise disclaimer of results). Further, to the extent the testimonials are by current clients of the firm, the testimonials must be factually correct, not misleading, and preceded by written
consent by the client. Rule 7.1(e)(4)). If on the other hand, the testimonial being provided is fictitious and done by an actor, then this too must be disclosed, pursuant to Rule 7.1(c).
16. General advertisement, promoting an attorney or firm is permissible, and even superlatives are permitted so long as they are accurate. It is not the role of this Committee to account for taste in advertising. Hence, attorneys are permitted to advertise so long as the advertisements do not mislead the public at large or otherwise violate of the New York Rules of Professional Conduct.
17. An attorney advertisement, however, may not refer to the attorney as a business partner of non-lawyer, clients. Nor may the advertisement utilize false or misleading statements, such as one being the “best” or the “most expert” attorney.
18. Without being certified as such, an attorney may not advertise as an “expert” in any field of practice. Advertisements depicting attorneys as “godsends” or a source of “rescue,” on the other hand, are permitted insofar as the public is informed that past results are not guaranteed.
19. Finally, to the extent testimonials are by actual clients of the firm, their prior consent must be obtained, and to the extent the so-called testimonials are fictitious, this too must be disclosed and they may not mislead the public.
Approved by Committee 4/11/12