OHBPC 1989-08-18

Can a lawyer use client testimonials in advertising?

Short answer: The Board concluded that advertisements containing client testimonials were not permitted under the Code, reasoning that a testimonial creates an unjustified expectation that similar results can be achieved and is a subjective, self-laudatory claim that cannot be objectively verified under DR 2-101(A) and (C). The opinion interprets the former Ohio Code of Professional Responsibility, since superseded, and has been withdrawn; later authority limits its force.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Ohio BPC Opinion 89-024: Client Testimonials in Attorney Advertising

Short answer: The Board concluded that advertisements containing client testimonials were not permitted under the Code, because a testimonial creates an unjustified expectation of similar results and is a subjective, self-laudatory claim that cannot be objectively verified.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Currency note

The Board withdrew this opinion on October 7, 2016 in Opinion 2016-08. It issued in 1989 under the former Ohio Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007); a January 24, 2005 order of the Supreme Court of Ohio made DR 2-101(A)(3) not enforceable, and DR 2-101 was amended effective January 1, 1993 and August 16, 1993. The conclusion here, that testimonials are categorically barred, no longer reflects Ohio's rules. Treat this page as historical context, not current guidance, and verify against the current Ohio Rules of Professional Conduct on advertising.

Plain-English summary

The request asked the Board's position on client testimonials in attorney advertising. The Board treated testimonials, like all lawyer advertising, as subject to DR 2-101(A), which prohibits false, fraudulent, misleading, or deceptive statements, and quoted DR 2-101(C), which defines a communication as false or misleading if it materially misrepresents or omits a fact, is likely to create an unjustified expectation about results, or is subjectively self-laudatory or compares lawyers' services without factual substantiation.

The Board reasoned that a client's testimonial misleads the public into believing similar results can be achieved, creating an unjustified expectation, and is a subjective statement of quality that cannot be verified by objective professional standards. It added that a lawyer cannot evade the ban on self-laudatory statements by having a client make them, and that under DR 2-103(C) a lawyer cannot request a person to recommend the lawyer's services or give anything of value for a recommendation. Noting that eight states then prohibited testimonials while two permitted them with compensation disclosure, and that the U.S. Supreme Court had denied certiorari in Grey v. State Bar of California, the Board concluded that client-testimonial advertisements were not permitted under the Code.

Common questions

Q: Did the Code allow client testimonials in ads?

A: Under this opinion, no. The Board concluded testimonial advertisements were not permitted, as they create an unjustified expectation of similar results and are unverifiable self-laudatory claims.

Q: Could a lawyer get around the self-laudatory ban by using a client's words?

A: No. The Board concluded a lawyer cannot effectively avoid the ban on self-laudatory statements by having a client make them, and cited DR 2-103(C)'s limits on soliciting recommendations.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility, DR 2-101(A) and (C) (advertising standards and the definition of false or misleading communications) and DR 2-103(C) (soliciting recommendations). Later orders and rule changes, noted above, limit its current force.

Citations and references

Rules of Professional Responsibility (Ohio):

Former Code of Professional Responsibility, DR 2-101(A) and (C), advertising standards
Former Code of Professional Responsibility, DR 2-103(C), soliciting recommendations

Cases:

Grey v. State Bar of California, cert. denied, 55 U.S.L.W. 3473 (1987)

Other authorities cited:

Moss, Law Practice Marketing, 61 Notre Dame L. Rev. 619 (1986)

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_89-024.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 89-24
Issued August 18, 1989

[Withdrawn- by Opinion 2016-8 on October 7, 2016]

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
[Pursuant to a January 24, 2005 order of the Supreme Court of Ohio, DR 2-101(A)(3) not enforceable.]
[Not current-subsequent rule amendments to DR 2-101, eff. Jan. 1, 1993 and Aug. 16, 1993.]

SYLLABUS: Advertisements containing client testimonials are not permitted under the Code of Professional Responsibility.

OPINION: We have before us your request for an advisory opinion on the Board's position regarding the use of client testimonials in attorney advertising.

Client testimonials, like all other forms of advertising by attorneys, are subject to DR 2-101 (A) which prohibits any false, fraudulent, misleading or deceptive statements or claims. DR 2-101 (C) further states that:

[a] communication is false or misleading if it: (1) contains a material misrepresentation of a fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (2) is likely to create the unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Code of Professional Responsibility or other law; or (3) is subjectively self-laudatory, or compares a lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

In our view, a client's testimonial regarding his or her lawyer misleads the public into believing that similar results can be achieved if they hire that lawyer, thereby creating an unjustified expectation. In addition, testimonials are subjective statements regarding the quality of a lawyer's services which cannot be verified by reference to objective standards established by the profession. Such statements of quality are generally banned because they are not capable of objective verification and mislead the public. See, Moss, Law Practice Marketing, 61 Notre Dame L. Rev. 619 (1986).

We believe that a lawyer cannot effectively avoid the ban on self-laudatory statements by having a client make such statements. In addition, under DR 2-103 (C), a lawyer cannot request a person or organization to recommend or promote the lawyer's services (exceptions not applicable). An attorney is also forbidden from giving anything of value to someone in return for recommending the attorney for employment. These restrictions are intended to protect members of the public from lawyers who may use misleading advertising or engage in conduct that is likely to impair public confidence in the legal system.

Currently, eight states prohibit the use of testimonials and endorsements while two jurisdictions permit testimonials as long as specific information regarding compensation for the endorsement is included in the advertisement. The United States Supreme Court recently refused to review a California case in which a lawyer was disciplined for including testimonials of former clients. Grey v. State Bar of California, 55 L.W. 3473, cert. denied (1987).

In conclusion, it is our opinion, and you are so advised, that client testimonial advertisements are not permitted under the Code of Professional Responsibility. These advertisements tend to create an unjustified expectation that similar results can be obtained for others, regardless of any specific facts or legal circumstances.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.