Can a New York lawyer advertise that they will 'stop your foreclosure'?

Plain-English summary

A lawyer wanting to market to homeowners facing foreclosure asked whether the ad "We will stop your foreclosure" is permitted. The lawyer's justification was that, under the Fair Debt Collection Practices Act, a motion could halt the proceeding until the debt is verified, after which other motions could create leverage to negotiate a loan modification (paragraphs 1, 4).

The committee applied Rule 7.1(a), which bars advertisements that are false, deceptive, or misleading, and Comment [3], which treats a truthful statement as misleading if it omits a fact needed to keep the communication from being materially misleading, or if it would lead a reasonable person to a specific conclusion about results for which there is no reasonable factual foundation (paragraphs 2, 3). Drawing an analogy to N.Y. State 487 (1978), the committee said an experienced lawyer might read "stop" as merely delaying the action, but a layperson, especially one unsophisticated in such matters, would likely believe "stop" means the foreclosure will simply cease and terminate (paragraphs 5, 6).

That reasonable but inaccurate inference is the kind of "false hope" the committee has long treated as deceptive (paragraph 7, citing N.Y. State 614). To be permissible, the ad would have to be reworded so it is no longer ambiguous and gives enough information about the services and their role in foreclosure litigation to avoid creating false hopes. And to the extent the reworded ad is reasonably likely to create an expectation about results, it must carry the exact Rule 7.1(e)(3) disclaimer, "Prior results do not guarantee a similar outcome" (paragraph 8). The committee noted it was not opining on any underlying litigation tactics, only on the advertising (footnote 1).

In practice

Under this opinion, an unqualified "we will stop your foreclosure" claim violates Rule 7.1 because a reasonable layperson would read it as a guaranteed termination of the proceeding, a result the lawyer cannot guarantee. The committee holds that a compliant ad must (1) be reworded to remove the ambiguity and explain the actual role of the services in foreclosure litigation, and (2) where it creates an expectation about results, include the verbatim "Prior results do not guarantee a similar outcome" disclaimer required by Rule 7.1(e)(3).

Common questions

Q: Can I advertise that I will "stop" a client's foreclosure?

A: Not without qualification. The committee held that an unqualified "stop your foreclosure" claim is false, deceptive, and misleading under Rule 7.1(a) because a reasonable layperson would read it as a guaranteed end to the foreclosure (paragraphs 6, 9).

Q: I really can delay a foreclosure with a motion. Does that make the ad accurate?

A: The committee accepted that a motion might delay the proceeding, but it found the word "stop" misleading because a layperson would understand it to mean the foreclosure will cease and terminate, not merely pause. The ad would have to be reworded to convey the actual, more limited effect (paragraphs 4, 6, 8).

Q: If I reword the ad to be accurate, is anything else required?

A: Yes. To the extent the reworded ad is reasonably likely to create an expectation about the results the lawyer can achieve, it must carry the exact Rule 7.1(e)(3) disclaimer "Prior results do not guarantee a similar outcome," in that language (paragraph 8).

Background and rules framework

The opinion interprets New York Rule 7.1 (lawyer advertising), corresponding to ABA Model Rule 7.1. The analysis rests on Rule 7.1(a)(1)'s bar on false, deceptive, or misleading advertisements as elaborated by Comment [3], and on the mandatory results disclaimer in Rule 7.1(d)(1) and (e)(3). New York's Rule 7.1 is considerably more detailed than the Model Rule, including the specific disclaimer language the committee applies here.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NY Rule 7.1(a)(1): false, deceptive, or misleading advertising
• NY Rule 7.1(d)(1), (e)(3): mandatory "prior results" disclaimer

Other opinions cited:

• N.Y. State 487 (1978): ambiguous advertising claim required modification to cure
• N.Y. State 614 (1990): client endorsements creating "false hopes" are misleading
• N.Y. State 848 (2010): required disclaimer must use the exact rule language

See also

• NY State Bar Ethics Op. 1005: Misleading Superlatives in Lawyer Advertising
• NY State Bar Ethics Op. 932: Lawyers' Business Cards
• NY State Bar Ethics Op. 918: Solicitation; Advertising; Public Education

Source

• Landing page: https://nysba.org/ethics-opinion-921/