Can a lawyer's firm brochure list past damage awards or the lawyer's record of favorable verdicts to show experience?

Plain-English summary

A firm wanted to use a brochure to communicate the range of services it provides and, in particular, to refer to four civil matters one of its lawyers handled to illustrate that clients need not go out of town for a large or complex matter. The firm had added case citations to those four matters to show they were not "puffing" but were summaries of litigated or settled matters on file in public records, and offered to keep the citations, delete them, or delete the party names. It asked whether the brochure could be approved.

The Disciplinary Commission answered that Rule 7.1(b) does not allow the listing of damage awards in the firm brochure. The opinion set out Rule 7.1, which bars false or misleading communications about a lawyer's services, including, under (b), communications likely to create an unjustified expectation about results. It quoted the Comment, which states that the prohibition on "unjustified expectations" would ordinarily preclude advertisements about results obtained for a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements. The opinion noted that Alabama's Rule 7.1 and its Comment are taken verbatim from the ABA Model Rules and quoted Hazard and Hodes that Rule 7.1(b) virtually precludes any use of a lawyer's track record as a selling point, since many factors besides skill contribute to a result.

The Commission concluded it does not matter whether the brochure's references to past awards include case citations; the question is not whether the facts are true but whether their inclusion could create an unjustifiable expectation in the lay reader. Because cases settle for many reasons and the size of an award may have nothing to do with the lawyer's skill, telling the public that a client recovered a certain award in another case tells a prospective client nothing about his own chance of a like recovery. The opinion concluded that what the firm proposed, regardless of motive, is essentially a textbook violation of Rule 7.1(b) as interpreted.

Currency note

This opinion was issued in 1993, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm brochure list the amount of past damage awards the lawyer obtained?

A: No. The opinion concluded Rule 7.1(b) does not allow listing damage awards, because it is likely to create unjustified expectations about results.

Q: Does adding case citations to the awards make it permissible?

A: No. The opinion concluded it does not matter whether the references include citations; the question is whether their inclusion could create an unjustifiable expectation in the lay reader.

Q: Can a lawyer advertise his record of favorable verdicts?

A: No. The opinion, quoting the Comment to Rule 7.1, concluded that advertising the lawyer's record in obtaining favorable verdicts is ordinarily precluded as creating unjustified expectations.

Background and rules framework

The opinion interprets Rule 7.1 of the Alabama Rules of Professional Conduct (Model Rule 7.1, communications concerning a lawyer's services), in particular Rule 7.1(b)'s bar on communications likely to create an unjustified expectation about results, applied to a firm brochure listing past damage awards and verdicts. The opinion notes Alabama's Rule 7.1 and Comment are taken verbatim from the ABA Model Rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / Ala. R. Prof. C. 7.1(b) (communications likely to create an unjustified expectation about results)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (limiting approved advertising to price and availability of routine services; quality advertising may be inherently misleading)

See also

• AL Ethics Op. 1993-15: union-endorsed firm ads
• AL Ethics Op. 1996-05: direct-mail advertising
• RI EAP Op. 2015-03: Rule 7.1 Permits a Rhyming "Win with [Name]" Advertising Slogan Because It Will Not Create an Unjustified Expectation of Results

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1993-08/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-93-08.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION

RO-93-08

Lawyer's brochure should not include amount of a damage award or lawyer's record in obtaining favorable verdicts

QUESTION:

"Being as close to Atlanta and Birmingham as we are, the Anytown legal services marketplace has undergone a tremendous change in recent years. Our firm has decided that we need a firm brochure to use as a tool to communicate to our friends and clients clearly and effectively the broad nature of the services we are capable of providing. Lawyer A, of our office, has worked with the Alabama State Bar, to finalize our brochure, with one exception. The one exception is that we want to refer to four civil matters which I handled in order to illustrate that a client does not have to go out of town to get a lawyer to handle a large, substantial or complex matter.

Enclosed you will find a proof of the current draft version of our brochure. We originally did not have case citations to the four civil matters we wanted to mention, but we added them in an effort to demonstrate to the Bar, as well as to the reader, that these four cases are not puffing, but are short summaries of litigated or settled matters that are on file in public documents. We would be happy to have the brochure approved in its current form, or in the alternative, we would be happy to delete the citations as a whole, or to delete the names of the parties from the citations of the cases. We do not desire for our brochure to offend or annoy any of the parties to those cases. On the other hand, if the Bar feels that the names of the parties need to be present, that is fine with us."

ANSWER:

Rule 7.1(b), Rules of Professional Conduct, does not allow for the listing of damage awards in your firm brochure.

DISCUSSION:

Rule 7.1 of the Rules of Professional Conduct directly addresses this issue and states as follows:

"Rule 7.1 Communications Concerning a Lawyer's Services

A lawyer shall not make or cause to be made a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;
(c) Compares the quality of the lawyer's services with the quality of other lawyer's services, except as provided in Rule 7.4; or
(d) Communicates the certification of the lawyer by a certifying organization, except as provided in Rule 7.4."

The Comment to Rule 7.1 states:

"[t]he prohibition in paragraph (b) of statements that may create 'unjustified expectations' would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements." (emphasis added)

Comments to the Rules of Professional Conduct are designed to "explain and illustrate" the meaning and purpose of the Rules according to the Preamble to the Rules.

Alabama's Rule 7.1 and the Comment thereto are taken verbatim from the ABA Model Rules of Professional Conduct. In The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, the authors draw the following conclusion:

"Rule 7.1(b) virtually precludes any use of a lawyer's track record as a selling point. Many other factors other than a lawyer's skill contribute to the result in any case, so claims based upon results are especially likely to be misleading. In Bates, the Supreme Court carefully limits approval of advertising to matters of price and availability of routine services, and intimated that advertisements as to quality might be inherently misleading." Hazard & Hodes, The Law of Lawyering, 863 (2d ed 1990).

It does not matter whether the references in your brochure to past damage awards include case citations or not. The question is not whether the facts are true, but whether their inclusion could create an unjustifiable expectation in the lay reader seeking legal representation.

Cases are settled for numerous reasons and on their own distinctive facts. Similarly, the size of a damage award may have nothing to do with the skill of the lawyer representing the plaintiff. Jury verdicts can contain the same vagaries. Telling the public that a lawyer's client recovered a certain award in another case, at another time and place, really tells the prospective client nothing about his own opportunity for a like recovery.

What your firm wants to do, regardless of your motive for doing so, is essentially a textbook violation of Rule 7.1(b), as it has been interpreted.

MLM/vf

3/25/93