Does a New York lawyer's advertisement that includes a client testimonial or endorsement have to carry the 'Prior results do not guarantee a similar outcome' disclaimer?

Plain-English summary

The opinion answers a single question: must an advertisement containing a client testimonial or endorsement also carry the disclaimer "Prior results do not guarantee a similar outcome"? The committee answers yes.

The committee reads Rule 7.1(d)(3) and Rule 7.1(e)(3) together. Rule 7.1(d)(3) allows an advertisement that complies with Rule 7.1(e) to contain "testimonials or endorsements of clients ... and of former clients." Rule 7.1(e)(3) then requires that such advertisements include the disclaimer "Prior results do not guarantee a similar outcome." The committee concludes that the disclaimer is mandatory for any testimonial-bearing advertisement.

The opinion distinguishes its earlier N.Y. State 771 (2003). At the time of that opinion the old Code of Professional Responsibility had no Disciplinary Rule specific to client testimonials, so the committee analyzed testimonials under DR 2-101(A)'s general bar on "false, deceptive or misleading" advertising, and whether a disclaimer was required turned on the nature of the testimonial. The committee notes that new Rule 7.1(a)(1) keeps the prohibition on false, deceptive, or misleading testimonials, but Rule 7.1(e)(3) now always requires the prescribed disclaimer.

In practice

The opinion holds that, under the New York rule as it stood at the time, an advertisement that includes a client or former-client testimonial or endorsement is required to carry the exact Rule 7.1(e)(3) disclaimer, "Prior results do not guarantee a similar outcome." The committee frames this as a flat requirement that does not depend on whether the particular testimonial is itself misleading.

The opinion also notes (in a footnote) that Rule 7.1(c)(1)'s separate restriction on testimonials from clients in still-pending matters had been enjoined as unconstitutional in Alexander v. Cahill, with an appeal then pending, but that this did not affect the disclaimer analysis because Rule 7.1(c) governs which testimonials are permitted, not whether they require a disclaimer.

Common questions

Q: Does every lawyer advertisement with a client testimonial need the "Prior results" disclaimer in New York?

A: Yes. The opinion concludes that Rule 7.1(e)(3) requires the disclaimer "Prior results do not guarantee a similar outcome" in any advertisement containing a client or former-client testimonial or endorsement.

Q: Does it matter whether the testimonial is truthful or not misleading?

A: No. The opinion explains that while Rule 7.1(a)(1) separately bars false, deceptive, or misleading testimonials, Rule 7.1(e)(3) "always requires" the disclaimer; truthfulness does not excuse it.

Q: How does this differ from the committee's earlier opinion N.Y. State 771?

A: At the time of N.Y. State 771 the old Code had no specific rule on testimonials, so the committee analyzed them under the general false-or-misleading standard and whether a disclaimer was needed depended on the testimonial. The opinion explains that Rule 7.1(e)(3) now makes the disclaimer mandatory in all cases.

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 7.1 (the analogue of ABA Model Rule 7.1 on communications concerning a lawyer's services). It applies Rule 7.1(a)(1) (no false, deceptive, or misleading advertising), Rule 7.1(d)(3) (permitting client and former-client testimonials in compliant advertisements), and Rule 7.1(e)(3) (requiring the "Prior results do not guarantee a similar outcome" disclaimer). The committee notes the disclaimer language is based verbatim on amendments to the old Code's advertising Disciplinary Rules that took effect February 1, 2007.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services)
• NY RPC 7.1(a)(1), 7.1(d)(3), 7.1(e)(3); reference to 7.1(c)(1)

Cases:

• Alexander v. Cahill, 634 F. Supp. 2d 239 (N.D.N.Y. 2007), enjoining enforcement of Rule 7.1(c)(1)'s ban on testimonials about pending matters (appeal then pending)

Other opinions cited:

• N.Y. State 771 (2003): testimonials analyzed under the old Code's false-or-misleading standard

See also

• NY State Bar Op. 848: Newsletters as advertisements and required disclaimers
• NY State Bar Op. 839: Group radio advertising
• NY State Bar Op. 1005: Misleading superlatives in lawyer advertising
• NY State Bar Op. 1129: Law firm newsletters as advertising

Source

• Landing page: https://nysba.org/ethics-opinion-834/