Can a lawyer advertise the dollar amounts recovered for clients using client testimonials?

Plain-English summary

The Committee was asked whether a personal injury lawyer may run an advertising campaign featuring client testimonials about the amounts the lawyer recovered for those clients. It concludes that testimonials disclosing recovery amounts are consistent with the Alaska Rules of Professional Conduct only if the clients provide informed consent.

The opinion treats the amount recovered as confidential. Rule 1.6(a) bars a lawyer from revealing a current client's confidence or secret without informed consent, and the rule defines a "secret" to include information that, if disclosed, would be reasonably foreseeable to embarrass or harm the client. Rule 1.9(c) extends the same protection to former clients, and Rule 1.8(b) prohibits using a client's confidences or secrets to benefit the lawyer or a third person without consent.

The opinion stresses that a recovery amount can be confidential even when it appears in a public record such as a final judgment. The Committee reasons that a judgment amount may not be widely disseminated, and pairing the client's name with the recovery could expose the client to fraud, theft, or unwelcome requests for loans or gifts, with the risk growing as the amount grows. Citing Rule 9.1(g), the opinion describes the disclosure the lawyer must make to obtain valid informed consent, and it observes that, while not expressly required by Rule 1.6, the most prudent course the opinion identifies is to confirm the client's consent in writing under Rule 9.1(t).

In practice

Under this opinion, advertising that uses a client's testimonial together with the amount the lawyer recovered is permitted only where the lawyer has first obtained the client's informed consent, as it stood under the Alaska rule at the time of the opinion. The opinion assumes the advertising is not otherwise misleading and complies with Rules 7.1, 7.2, and 7.3; it addresses only the confidentiality dimension. The opinion characterizes confirming that consent in writing as the most prudent course, while noting Rule 1.6 does not expressly require it.

Common questions

Q: Can a lawyer advertise how much money they recovered for a client in Alaska?

A: Yes, but only with the client's informed consent. The opinion concludes that recovery amounts are confidential under Rule 1.6, so a testimonial disclosing them requires the client's informed consent first.

Q: Does it matter that the recovery is in a public court judgment?

A: No. The opinion concludes a recovery amount can remain a protected "secret" even when a final judgment is public, because the amount may not be widely known and linking it to the client's name could foreseeably harm the client.

Q: Does the consent have to be in writing?

A: The opinion states that writing is not expressly required by Rule 1.6, but it identifies confirming consent in writing under Rule 9.1(t) as the most prudent course.

Q: Does this apply to former clients too?

A: Yes. The opinion applies Rule 1.9(c), under which a former client's confidences and secrets remain protected and cannot be disclosed without consent.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 1.6 (confidentiality of information, the analog of Model Rule 1.6), together with Rule 1.8(b) (use of client information to the client's disadvantage) and Rule 1.9(c) (duties to former clients). It uses Rule 9.1(g) and the Rule 9.1 commentary to define "informed consent" and Rule 9.1(t) on written confirmation. The opinion assumes compliance with the advertising rules (7.1, 7.2, 7.3) and does not independently analyze them.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.6(a) (confidentiality; definitions of "confidence" and "secret")
• Alaska RPC 1.8(b) (use of client confidences and secrets)
• Alaska RPC 1.9(c) (duties to former clients)
• Alaska RPC 9.1(g), 9.1(t) (informed consent; confirmed in writing)
• Alaska RPC 7.1, 7.2, 7.3 (advertising; assumed satisfied)

Other authorities cited:

• Former ABA Model Code of Professional Responsibility, DR 4-101, EC 4-5 (1980)
• Restatement (Third) of the Law Governing Lawyers § 59 (2000)

See also

• CA COPRAC Op. 2012-186: Social Media Advertising
• AL Bar Op. 2003-01: Advertising Issues

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2020-2.pdf

Original opinion text

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

ALASKA BAR ETHICS OPINION 2020-02
WHAT ARE COUNSEL’S ETHICAL DUTIES REGARDING
PUBLICIZING CLIENT RECOVERIES?
QUESTION
The Committee has been asked whether a personal injury lawyer may conduct
an advertising campaign featuring client testimonials about the amounts the lawyer
has recovered on the clients’ behalf.
SUMMARY
Testimonials disclosing amounts of recoveries are consistent with the Alaska
Rules of Professional Conduct only if the clients provide informed consent.1
DISCUSSION
Rule 1.6(a) of the Alaska Rules of Professional Conduct prohibits a lawyer
from revealing a current client’s confidence or secret unless the client gives informed
consent. Rule 1.6(a) further states:
For purposes of this rule, “confidence” means information protected by
the attorney-client privilege under applicable law, and “secret” means
other information gained in the professional relationship if the client
has requested it be held confidential or if it is reasonably foreseeable
that disclosure of the information would be embarrassing or detrimental
to the client. In determining whether information relating to
representation of a client is protected from disclosure under this rule,
the lawyer shall resolve any uncertainty about whether such
information can be revealed against revealing the information.
Similarly, under Rule 1.9(c), a former client’s confidences and secrets are protected
and cannot be disclosed absent consent: a “lawyer who has formerly represented a
client in a matter … shall not thereafter … (2) reveal confidences and secrets except
as these Rules would permit or require with respect to a client.” It is axiomatic that
a lawyer “should not use information acquired in the course of the representation of
This opinion assumes that the content of the lawyer’s advertising and the client
testimonials are not misleading and otherwise fully meet the requirements of Rules
7.1, 7.2 and 7.3.

1

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a client to the disadvantage of the client and a lawyer should not use, except with the
consent of his client after full disclosure, such information for his own purposes.”2
And under Rule 1.8(b), “[u]se of [a client’s] confidences and secrets to benefit either
the lawyer or a third person” is prohibited absent client consent.3
Disclosure of confidential settlement amounts could have adverse effects to
the client. Even where the amount recovered is a matter of public record, e.g., when
a final judgment is entered after trial, it is reasonably foreseeable that dissemination
of the recovery could be detrimental to the client. The definition of a “secret”
includes “information that becomes known by others, so long as the information
does not become generally known.”4 The Comment to Rule 1.6 adds, “This
prohibition also applies to disclosures by a lawyer that do not in themselves reveal
protected information but could reasonably lead to the discovery of such information
by a third person.” A final judgment may be public information, but the judgment
amount may not be widely disseminated, and use of the client’s name together with
the recovery amount could expose the client to attempts at fraud, thievery or
unwelcome requests for loans or gifts. The greater the amount, the greater is the
potential risk of client harm.
Rule 9.1(g), Alaska Rules of Professional Conduct, defines “informed
consent” as the agreement by a person to a proposed course of conduct after the
lawyer has adequately explained the material risks of, and the reasonably available
alternatives to, the proposed course of conduct. The Rule 9.1 Commentary further
clarifies the necessary steps associated with obtaining a client’s “informed consent”:
The communication necessary to obtain such consent will vary
according to the Rule involved and the circumstances giving rise to the
2

Former ABA Model Code of Professional Responsibility, DR 4-101, EC 4-5 (1980)
(emphasis added),
https://www.americanbar.org/content/dam/aba/administrative/professional_respons
ibility/mrpc_migrated/mcpr.pdf The Alaska Comment to Rule 1.6 states that “The
terms ‘confidence’ and ‘secret’ are defined in the amended rule in substantively the
same way as those terms were defined in DR 4-101(A) of the ABA Model Code of
Professional Responsibility.”
3

Rule 1.8, cmt. (“Use of Information Related to Representation”).

4

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 59 (AM.
LAW INST. 2000).
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need to obtain informed consent. The lawyer must make reasonable
efforts to ensure that the client or other person possesses information
reasonably adequate to make an informed decision. Ordinarily, this will
require communication that includes a disclosure of the facts and
circumstances giving rise to the situation, any explanation reasonably
necessary to inform the client or other person of the material advantages
and disadvantages of the proposed course of conduct and a discussion
of the client’s or other person’s options and alternatives. (emphasis
added). In some circumstances it may be appropriate for a lawyer to
advise a client or other person to seek the advice of other counsel. A
lawyer need not inform a client or other person of facts or implications
already known to the client or other person; nevertheless, a lawyer who
does not personally inform the client or other person assumes the risk
that the client or other person is inadequately informed and the consent
is invalid. In determining whether the information and explanation
provided are reasonably adequate, relevant factors include whether the
client or other person is experienced in legal matters generally and in
making decisions of the type involved, and whether the client or other
person is independently represented by other counsel in giving the
consent. Normally, such persons need less information and explanation
than others, and generally a client or other person who is independently
represented by other counsel in giving the consent should be assumed
to have given informed consent.
Obtaining informed consent will usually require an affirmative
response by the client or other person. In general, a lawyer may not
assume consent from a client’s or other person’s silence. Consent may
be inferred, however, from the conduct of a client or other person who
has reasonably adequate information about the matter.
While not expressly required by Rule 1.6, before using a client testimonial or
disclosing amounts recovered for the client, the most prudent course of conduct is
for the lawyer to confirm the client’s consent in writing, i.e., a tangible or electronic
record of a communication or representation. See Rule 9.1(t), Alaska Rules of
Professional Conduct. On this issue, the Commentary to Rule 9.1 states:
If it is not feasible to obtain or transmit a written confirmation at the
time the client gives informed consent, then the lawyer must obtain or
transmit it within a reasonable time thereafter. If a lawyer has obtained
a client’s informed consent, the lawyer may act in reliance on that
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consent so long as it is confirmed in writing within a reasonable time
thereafter.
In sum, the Committee concludes that use of client testimonials and amounts
recovered for clients in a lawyer’s advertising is allowable provided informed
consent is first obtained by the lawyer.

Approved by the Alaska Bar Association Ethics Committee on August 18, 2020.
Adopted by the Board of Governors on October 26, 2020.

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