Can a New York lawyer use actual client testimonials in radio or television advertising?

Plain-English summary

A lawyer proposed to advertise on radio and television using testimonials from actual clients whose cases had concluded, in which the clients would state objective facts about their case and express satisfaction with the firm and the result. DR 2-101(C)(2) already permitted listing names of clients regularly represented with prior written consent; the question was whether the lawyer could go further and include client endorsements in the advertisement itself. The committee acknowledged the format could mislead an unsophisticated potential client, but, against the backdrop of Bates and later First Amendment advertising cases, declined to adopt a per se prohibition, noting that some states had banned testimonials outright while the committee preferred a narrower rule reaching only the deceptive potential.

The committee held improper those client endorsements describing prior results that fail to contain enough information for an informed decision, create unjustified expectations or false hopes, or offer overblown assurances of client satisfaction, because such statements would be false, deceptive, or misleading under DR 2-101(A) and would run afoul of DR 2-101(B)'s bar on claims about the quality of services or claims that cannot be measured or verified. Drawing on the Supreme Court's approval of disclosure requirements in Zauderer, the committee required that a disclaimer accompany any client endorsement describing prior results, to the effect that the endorsement does not guarantee or predict a similar outcome in a future matter. The committee pointed back to N.Y. State 539 for the related point that an advertisement reporting case outcomes, which ignores the factual and legal nuances that make each case unique, can suggest to a layperson that a similar recovery is available in every such case.

Currency note

This opinion was issued in 1990, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009, and before the courts and bar substantially revised the lawyer-advertising rules. 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 Treat this page as historical context, not current guidance.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 New York lawyer use client testimonials in advertising?

A: Yes. The committee declined to adopt a per se ban and held that a lawyer may advertise using client testimonials, provided the advertisement otherwise complies with the disciplinary rules.

Q: What does a results-based testimonial have to include?

A: A disclaimer that prior results do not guarantee or predict a similar outcome in any future matter. The committee said such a disclaimer should be joined with any client endorsement describing prior results to avoid unjustified expectations.

Q: When is a testimonial improper?

A: When it fails to contain enough information for an informed decision, creates unjustified expectations or false hopes, or offers overblown assurances of client satisfaction, because the statement would then be false, deceptive, or misleading under DR 2-101(A) and (B).

Background and rules framework

The opinion interpreted DR 2-101(A) (no false, deceptive, or misleading public communication), DR 2-101(B) (no puffery, self-laudation, quality claims, or unverifiable claims), and DR 2-101(C)(2) (use of names of clients regularly represented, with prior written consent), with EC 2-10. The committee also looked, for guidance only, to ABA Model Rule 7.1. The closest Model Rule analogues are Rule 7.1 (communications concerning a lawyer's services) and Rule 7.2 (advertising).

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services)
• MR 7.2 (advertising)
• NY DR 2-101(A); DR 2-101(B); DR 2-101(C)(2); EC 2-10

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977): attorney advertising is protected commercial speech, subject to limits on false or misleading claims
• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985): disclosure requirements are a permissible, narrower alternative to flat bans
• Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988); In re R.M.J., 455 U.S. 191 (1982): limits on restricting lawyer advertising

Other opinions cited:

• N.Y. State 539 (1982): advertising case outcomes and the risk of misleading the public

See also

• NY State Bar Op. 624: Mailing newspaper articles about the lawyer to potential clients
• NY State Bar Op. 625: Recorded legal messages and advertising on a 900 number
• NY State Bar Op. 1005: Misleading superlatives in lawyer advertising

Source

• Landing page: https://nysba.org/opinion-614/