Can a New Hampshire lawyer advertise that they are a "Million Dollar Advocate" or a member of the "Million Dollar Advocates Forum"?

Plain-English summary

A New Hampshire lawyer asked whether he could state on his website that he is a "Million Dollar Advocate," a designation limited to lawyers who have obtained a million-dollar or multi-million-dollar verdict or settlement. The Committee had addressed the same labels in a 1997 practical ethics article and concluded then that the advertising was impermissible, applying the commercial-speech analysis of Central Hudson Gas & Electric Corp. v. Public Service Commission and New Hampshire Rule 7.1, which bars false or misleading communications about a lawyer's services, including claims likely to create unjustified expectations about results.

In this opinion the Committee revisits the question because the 1997 analysis never considered whether a disclaimer would cure the problem. It concludes that advertising the designation is permissible if accompanied by an appropriate disclaimer. The Committee rests on two grounds. First, under the fourth step of the Central Hudson test (whether a restriction is narrowly drawn), and following Bates v. State Bar of Arizona and the New Hampshire Supreme Court's decision in Appeal of Sutfin, it concludes a flat ban would be difficult to sustain against a free-speech challenge when a disclaimer is a less restrictive alternative. Second, the ABA's comment to Rule 7.1 recognizes that an appropriate disclaimer or qualifying language may preclude a finding that a statement is misleading. The Committee reaffirms its 1997 view only to the extent that, without an appropriate disclaimer, the advertising would violate Rule 7.1(b) and (c).

In practice

The opinion concludes that, under New Hampshire Rule 7.1, the "Million Dollar Advocate" and "Million Dollar Advocates Forum" labels may be used in advertising when paired with an appropriate disclaimer, and are prohibited without one. It treats the claim as one that, standing alone, is likely to create unjustified expectations about results the lawyer can achieve and to make an unsubstantiated comparison, but it holds that a disclaimer can cure that defect, drawing on commercial-speech doctrine that favors disclosure over outright suppression. The opinion does not prescribe the exact disclaimer language.

Common questions

Q: Is it permissible for a New Hampshire lawyer to call themselves a "Million Dollar Advocate" in advertising?

A: Yes, with a disclaimer. The opinion concludes the designation may be advertised only if accompanied by an appropriate disclaimer; without one it violates Rule 7.1(b) and (c).

Q: Why is the bare claim a problem under Rule 7.1?

A: The opinion explains that, even if true, the claim is likely to create unjustified expectations about the results the lawyer can achieve and makes a comparison with other lawyers that is not factually substantiated, implicating Rule 7.1(b) and (c).

Q: Did this opinion change the Committee's earlier position?

A: In part. The opinion explains the 1997 practical ethics article treated the advertising as impermissible without analyzing a disclaimer; this opinion concludes a disclaimer can make the advertising permissible, while reaffirming that without one it would violate Rule 7.1.

Q: What does free-speech law have to do with it?

A: The opinion applies the Central Hudson commercial-speech test and, citing Bates and Appeal of Sutfin, reasons that a flat ban would be hard to justify when a narrower disclaimer requirement would serve the state's interest.

Background and rules framework

The opinion interprets New Hampshire Rule 7.1 (communications concerning a lawyer's services), which prohibits false or misleading communications, including statements likely to create unjustified expectations about results (7.1(b)) and unsubstantiated comparisons with other lawyers (7.1(c)). It analyzes the rule against the First Amendment commercial-speech framework of Central Hudson, Bates v. State Bar of Arizona, Peel v. Attorney Registration and Disciplinary Commission, and the New Hampshire Supreme Court's Appeal of Sutfin, and relies on the ABA comment recognizing that a disclaimer can cure a potentially misleading statement.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NH Rule 7.1 (communications concerning a lawyer's services; 7.1(b) and (c))

Cases:

• Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), commercial-speech test
• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising and disclaimers
• Peel v. Attorney Registration & Disciplinary Commission of Illinois, 496 U.S. 91 (1990), truthful certification claims
• Appeal of Sutfin, 141 N.H. 732 (1997), preference for disclosure over suppression
• Texans Against Censorship v. State Bar of Texas, 888 F. Supp. 1328 (E.D. Tex. 1995), aff'd 100 F.3d 953 (5th Cir. 1996)

Other opinions cited:

• NHBA 1997 Ethics Committee Practical Ethics Article, "Million Dollar Advocate"

See also

• Alabama Bar Op. 1993-08: Brochure Should Not Include Damage Award or Verdict Record
• Arizona Bar Op. 12-02: Advertising and False or Misleading Communication
• Arizona Bar Op. 05-03: Advertising "Best Lawyers in America"

Source

• Landing page: https://www.nhbar.org/ethics/opinion-2011-12-03
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2020/01/14111510/2011-12-03-REFORMATTED-Million-Dollar-Advocate.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. NEW HAMPSHIRE BAR ASSOCIATION Limitations on “Million Dollar Advocate” and “Million Dollar Advocates Forum” Advertising Ethics Committee Advisory Opinion #2011-12/03 ABSTRACT:
Advertising that a lawyer is a “million dollar advocate” or is a member of the “Million Dollar Advocates Forum” is permissible only if the advertisement includes an appropriate disclaimer. ANNOTATIONS: A lawyer may not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is misleading if it is likely to create an unjustified expectation about results the lawyer can achieve.
OPINION
ISSUE PRESENTED:
May a lawyer advertise that she or he is a “Million Dollar Advocate” or a member of the “Million Dollar Advocates Forum”? Factual Background: The Million-Dollar Advocates Forum was established in 1993 and is limited to only those lawyers who obtained a million dollar or multi-million dollar verdict or settlement. A New Hampshire lawyer asked whether he could post on his website that he is a million dollar advocate. ANALYSIS: In November 1997, the Ethics Committee issued a practical ethics article that concluded it was impermissible for a New Hampshire lawyer to advertise that he or she is a “million-dollar advocate” or a member of the “Million-Dollar Advocates Forum.” In reaching that conclusion, the Committee applied the “four-step analysis” set forth in Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566 (1980), a test that the Supreme Court applies to commercial speech. The Central Hudson test assumes, as a starting point, that the speech at issue concern a “lawful activity” and is not “more likely to deceive the public than inform it.” 447 U.S. at 563. Second, the government “must assert a substantial interest to be achieved by restrictions on commercial speech.” Id. at 564. Third, the restriction “must directly advance the state interest involved.” Id. Finally, the restriction may not “completely suppress information when narrower restrictions on expression would serve the interest as well.” Id. at 565. The 1997 Committee then turned to New Hampshire Rule of Professional Conduct Rule 7.1 which provided: A lawyer shall not make 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 in light of all of the circumstances, 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; or c. compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.
The Committee noted that “ABA Model Code Comment to Rule 7.1(b) stated that the rule precludes advertisements that include statements referring to the amount of a damage award, the lawyer’s record in obtaining favorable verdicts, or client endorsements because statements regarding past performance ‘may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.'” Continuing, the Committee pointed out that Rule 7.1(c) “prohibits comparisons of the lawyer’s services with those of other lawyers, unless such comparisons can be factually substantiated. This rule has been held to prohibit the use of the subjective terms in lawyer advertising such as ‘experienced,’ ‘qualified,’ or the ‘leading’ firm.'” The Committee concluded that a statement that a lawyer is a “million dollar advocate” or a member of the “Million Dollar Advocates Forum,” even if true, implicated Rules 7.1(b) and 7.1(c) because it “is misleading, and is likely to create unjustified expectations about the results that the lawyer can achieve, regardless of whether that lawyer had achieved one or more million dollar verdicts.” In a concluding footnote, the Committee stated it “has neither been asked nor had it considered whether any disclaimer would be sufficient to defeat the unjustified expectations that may be created by the phrases.” The Committee has received an inquiry asking about million dollar advocate advertising on a law firm’s website. Perhaps unaware of the Committee’s 1997 practical ethics article, the inquiring lawyer asked the Committee whether such advertising is permissible. The Committee concludes that advertising a lawyer is a “million dollar advocate” or member of the “Million Dollar Advocates Forum” is permissible but only if it includes an appropriate disclaimer. The Committee rests its opinion on two grounds. First, even though the 1997 Committee analyzed the issue under Central Hudson, it did not consider the effect of a disclaimer and, thus, did not focus on the fourth step of the Central Hudson test. That step asks whether the restriction is “narrowly drawn.” In discussing the fourth step in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the United States Supreme Court stated it “did not ‘foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required’ in promotional material.” 447 U.S. at 565 (emphasis added). In Appeal of Sutfin, 141 N.H. 732 (1997), the New Hampshire Supreme Court reversed a decision by the state dental board that a dentist’s advertisement of a patented dental device was false and misleading. Referring to Central Hudson and Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91(1990), our court stated: “The Supreme Court’s decisions in this area reflect a preference for regulations that impose lesser burdens on speech, such as disclosure requirements, as opposed to outright suppression. (Citing Texans Against Censorship v. State Bar of Texas, 888 Fed. Supp. 1328, 1347 (E.D. Tex. 1995) (collecting cases), aff’d 100 Fed. 3d. 953 (5th Cir. 1996) and Bates v. State Bar of Arizona, 433 U.S. 350, 375 (1977)). Appeal of Sutfin and Central Hudson make clear that the government bears the burden of demonstrating that a restriction on commercial speech not only is necessary to, and directly does, advance a “substantial” governmental interest,” but that it is “narrowly drawn” and suppresses no more speech than necessary. For this reason, it is difficult to conceive how prohibiting a lawyer from advertising he or she is a million-dollar advocate or a member of the “Million-Dollar Advocates Forum,” accompanied by an appropriate disclaimer, could survive a free speech challenge. Second, the ABA Model Rule Comments to Rule 7.1 states, in part: “The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client” (emphasis added). At the very least, this comment indicates that the ABA recognizes the problem of an outright ban of certain types of advertising. In conclusion, the Committee reaffirms the opinion it reached in 1997: without an appropriate disclaimer, advertising that a lawyer is a “million-dollar advocate” or a member of the “Million- Dollar Advocates Forum” would violate Rule 7.1(b) and (c).

NH RULES OF PROFESSIONAL CONDUCT:
Rule 7.1

NH ETHICS COMMITTEE OPINIONS AND ARTICLES:
Committee opinion on same topic: 1997 Ethics Committee – Practical Ethics Article “Million Dollar Advocate”

SUBJECTS:
Lawyer Advertising
Disclaimer
• By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its January 17, 2013 meeting.