Can an Ohio lawyer use client testimonials and online reviews in advertising, and do they need disclaimers?
Ohio BPC Ethics Opinion 2016-008: Client Testimonials in Advertising and Online Reviews
Short answer: A lawyer may use client testimonials in advertising if they are not false, misleading, or nonverifiable, with a clear disclaimer for general-results testimonials, but testimonials stating a settlement or verdict dollar amount are inherently misleading even with a disclaimer.
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.
Plain-English summary
The Board addressed whether a lawyer may use client testimonials in advertising. Starting from the lawyer's First Amendment right to communicate truthful, non-misleading information about services (Bates v. State Bar), it held that testimonials, like any communication under Prof. Cond. R. 7.1 and 7.2, cannot be false, misleading, or nonverifiable. A testimonial must be the truthful remarks of an actual client. Subjective comments like "I was pleased with the representation" are permissible, while statements characterizing the lawyer's skill, reputation, or record ("the best criminal defense lawyer in Columbus") are nonverifiable and not permitted.
The Board drew a sharp line at dollar figures. A testimonial that communicates the amount of a settlement or verdict is, in the Board's view, materially misleading under Rule 7.1 because it conveys only the client's subjective sense of the case and omits factors that affect awards (insurance coverage, injury severity, total damages). The Board concluded a disclaimer cannot cure those unjustified expectations, so such testimonials are inherently misleading even with a disclaimer. By contrast, a testimonial describing general favorable results ("I was able to return to work after my workplace injury") may be acceptable with a clear, conspicuous disclaimer that prior results do not guarantee a similar outcome; the disclaimer should match the testimonial's font size in print, or run at the start or end at an understandable volume and speed in audio.
The Board added confidentiality and payment limits. Under Prof. Cond. R. 1.6 and 1.9, a lawyer must obtain the client's written informed consent before using a testimonial, name, or likeness, should tell the client how long the ad will run, and should let the client withdraw consent. Under Rule 7.2(b) a lawyer may not give anything of value for a testimonial. For online reviews, a lawyer who controls a website or profile must periodically monitor it and remove false, misleading, or nonverifiable client comments; where the lawyer cannot control the content, the lawyer must not reveal information relating to the representation when responding, because no Rule 1.6(b) exception permits disclosure in response to a negative review. The opinion withdrew Advisory Opinions 89-24 and 2000-6.
In practice
The opinion holds that, under the Ohio rules as they stood at the time, a client testimonial is governed by Prof. Cond. R. 7.1 and 7.2: it may be used if it is not false, misleading, or nonverifiable. Per the opinion, a testimonial about general favorable results requires a clear, conspicuous disclaimer, and a testimonial stating a settlement or verdict amount is inherently misleading even with a disclaimer. The opinion states that a lawyer should obtain the client's written informed consent before using a testimonial under Rules 1.6 and 1.9, may not pay for a testimonial under Rule 7.2(b), and, where the lawyer controls the online content, must monitor and remove false, misleading, or nonverifiable client reviews.
Common questions
Q: Can an Ohio lawyer use client testimonials in advertising?
A: The opinion concluded yes, if the testimonial is not false, misleading, or nonverifiable and does not create unjustified expectations under Prof. Cond. R. 7.1.
Q: Can a testimonial state how much the lawyer recovered for the client?
A: The opinion concluded no; a testimonial communicating a settlement or verdict dollar amount is inherently misleading under Rule 7.1, and a disclaimer cannot cure it.
Q: Does a testimonial about general results need a disclaimer?
A: The opinion concluded yes; a testimonial describing general favorable results may avoid being misleading only with a clear, conspicuous disclaimer that prior results do not guarantee a similar outcome.
Q: Must a lawyer manage client reviews posted online?
A: The opinion concluded that a lawyer who controls a website or profile must periodically monitor it and remove false, misleading, or nonverifiable client reviews; where the lawyer cannot control the content, the lawyer must not reveal information relating to the representation when responding.
Q: Can a lawyer pay a client for a testimonial?
A: The opinion concluded no; under Prof. Cond. R. 7.2(b) a lawyer may not give anything of value to a current or former client for a testimonial.
Background and rules framework
The opinion interprets Ohio Prof. Cond. R. 7.1 (communications concerning a lawyer's services) and 7.2 (advertising), together with the confidentiality duties in Rules 1.6 (current clients) and 1.9 (former clients) (Model Rules 7.1, 7.2, 1.6, 1.9). It applies the Rule 7.1 prohibition on false, misleading, or nonverifiable communications, including comment [2] (reasonable factual foundation) and comment [3] (unjustified expectations), to testimonials and online reviews.
Citations and references
Rules of Professional Conduct:
- Ohio Prof. Cond. R. 7.1 (communications concerning a lawyer's services), incl. cmts. [2], [3] (Model Rule 7.1)
- Ohio Prof. Cond. R. 7.2 (advertising), incl. 7.2(b) (Model Rule 7.2)
- Ohio Prof. Cond. R. 1.6 (confidentiality of information), incl. 1.6(b) (Model Rule 1.6)
- Ohio Prof. Cond. R. 1.9 (duties to former clients) (Model Rule 1.9)
Cases:
- Bates v. State Bar, 433 U.S. 350 (1977), First Amendment right to advertise truthful, non-misleading legal services
Other opinions cited:
- N.C. Adv. Op. 2012-1: testimonials and disclaimers
- Penn. Adv. Op. 2014-300 (2014): monitoring online client reviews
- Tex. Adv. Op. 662 (Aug. 2016): responding to negative online reviews
See also
- Ohio BPC Op. 2002-007: Advertising Past Settlement and Verdict Amounts
- Ohio BPC Op. 1989-024: Client Testimonials in Advertising (withdrawn by this opinion)
- Ohio BPC Op. 2000-006: Law Firm Website Client Testimonials (withdrawn by this opinion)
- Ohio BPC Op. 2007-005: Personalized Advertising Letters and Business Direct Mail
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_16-008.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
OHIO BOARD OF PROFESSIONAL CONDUCT
OPINION 2016-8
Issued October 7, 2016
Withdraws Opinions 89-24, 2000-6
Client Testimonials in Lawyer Advertising and Online Services
Syllabus of Opinion:
-
A lawyer may include a client testimonial in advertising so long as it does not
constitute a false, misleading, or nonverifiable communication about the lawyer
or the lawyer’s services or create unjustified expectations for prospective clients.
Testimonials generally referring to favorable outcomes for clients must contain an
appropriate disclaimer to avoid unjustified expectations. -
Client testimonials in an advertisement that state the amount of a settlement or
verdict are inherently misleading even if a disclaimer is used. -
A lawyer is responsible for monitoring testimonials and reviews made by clients
on websites if the lawyer controls the content of the website. Online testimonials
or reviews from clients about the lawyer or the lawyer’s services that contain false,
misleading, or nonverifiable communications must be removed by the lawyer
when the lawyer has control over the online content.
This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in
response to a prospective or hypothetical question regarding the application of ethics rules
applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely
responsible for the content of this advisory opinion, and the advice contained in this opinion
does not reflect and should not be construed as reflecting the opinion of the Supreme Court
of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio
Board of Professional Conduct.
OHIO BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov/boards/boc
PAUL M. DE MARCO RICHARD A. DOVE
CHAIR DIRECTOR
WILLIAM J. NOVAK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL
OPINION 2016-08
Issued October 7, 2016
Withdraws Opinions 89-24, 2000-6
Client Testimonials in Lawyer Advertising and Online Services
SYLLABUS: A lawyer may include a client testimonial in advertising so long as it does
not constitute a false, misleading, or nonverifiable communication about the lawyer or
the lawyer’s services or create unjustified expectations for prospective clients.
Testimonials generally referring to favorable outcomes for clients must contain an
appropriate disclaimer to avoid unjustified expectations.
Client testimonials in an advertisement that state the amount of a settlement or
verdict are inherently misleading even if a disclaimer is used.
A lawyer is responsible for monitoring testimonials and reviews made by clients
on websites if the lawyer controls the content of the website. Online testimonials or
reviews from clients about the lawyer or the lawyer’s services that contain false,
misleading, or nonverifiable communications must be removed by the lawyer when the
lawyer has control over the online content.
QUESTION PRESENTED: Whether a lawyer may utilize client testimonials in
advertisements that promote the lawyer or the lawyer’s services.
APPLICABLE RULES: Prof.Cond.R. 1.6, 1.9, 7.1, 7.2.
Op. 2016-08 2
OPINION: Client testimonials are commonly used by lawyers in advertisements to
convey information about the lawyer or the lawyer’s services in an effort to attract new
clients. Lawyers have a First Amendment right to communicate truthful information
about their services that is not false or misleading. Bates v. State Bar, 433 U.S. 350 (1977).
Communications made by lawyers, including advertisements containing client
testimonials, cannot be false, misleading, or nonverifiable. Prof.Cond.R. 7.1, 7.2. A
communication about the lawyer or the lawyer’s services is considered “false or
misleading if it contains a material misrepresentation of fact or law, or omits a fact
necessary to make a statement considered as a whole not materially misleading.”
Prof.Cond. R. 7.1. A communication is also misleading when there is a substantial
likelihood that a reasonable person would form a conclusion about the lawyer or the
lawyer’s services without a reasonable factual foundation. Prof.Cond.R. 7.1, cmt. [2].
When a lawyer decides to use a client testimonial in an advertisement there are
several considerations to ensure the communication will not be construed as false,
misleading, or nonverifiable. A testimonial should consist of truthful remarks from an
actual client, not those prepared by the lawyer or others. Client testimonials such as “I
was pleased with the representation I received,” and “The lawyer listened to my
concerns,” are examples of permissible client testimonials under Prof.Cond.R. 7.1 because
they do not create unjustified expectations. However, testimonials containing statements
that characterize the lawyer’s skills, reputation, or record are nonverifiable and are not
permitted by the rule. For example, “My lawyer never settles a case he knows he can
win,” and “My lawyer is the best criminal defense lawyer in Columbus,” are types of
communications that generally cannot be verified and therefore are not permitted under
the rule.
More importantly, a client testimonial in an advertisement can be misleading
when it leads a reasonable person to form an unjustified expectation that the same results
can be obtained for other clients in similar matters. Prof.Cond.R. 7.1, cmt. [3]. Client
testimonials containing dollar amounts of settlements or verdicts are particularly
susceptible of generating unjustified expectations, even though the statements can
sometimes be verified and accompanied by a disclaimer. For example, a testimonial
stating “I was pleased my lawyer settled my case for over $50,000” only communicates
the client’s subjective value of the former client’s case and does not take into account the
nature or relative strength of the case, its true value, or the individual skills of the lawyer.
Op. 2016-08 3
Furthermore, the stated amount of an award does not take into account a variety of
important factors that affect award amounts (e.g., availability of insurance coverage,
severity of an injury, the total amount of damages, and issues raised at trial for purposes
of appeal, etc.), and leaves out important information about the facts and circumstances
of the case. In the Board’s opinion, the use of client testimonials to communicate
settlement or verdict amounts, without more information, is materially misleading under
Prof.Cond.R. 7.1. Consequently, a disclaimer cannot temper the unjustified expectations
that are inevitably invoked when settlement or verdict amounts are communicated
through a client testimonial. See also N.C. Adv. Op. 2012-1.
On the other hand, when an advertisement contains a client testimonial describing
general favorable results of the representation, an appropriate disclaimer may prevent a
misleading communication by the lawyer, e.g., “After my DUI charge, I was able to keep
my driver’s license” or “I was able to return to work after my workplace injury.”
Prof.Cond.R. 7.1, cmt [3]. A disclaimer may include:
Prior results do not guarantee a similar outcome in your case; or
Individual results may vary based on the facts, injuries,
jurisdiction, venue, witnesses, parties, and other factors. The
results and client testimonials provided are not necessarily
representative of the results obtained by all clients or their
satisfaction with the firm’s services.
A disclaimer in a print or video medium should be clear, conspicuous, and not
minimized or obscured. A written disclaimer should be placed in the same size font as
the written testimonial. Disclaimers provided in an audio format should be placed at the
beginning or end of the advertisement in a volume and speed that can be easily
understood by the listener. See, e.g. N.C. Adv. Op. 2012-1.
When using a client testimonial in an advertisement, a lawyer should always be
mindful of the limitations imposed by Prof.Cond.R. 1.6 and 1.9, requiring the lawyer to
not reveal information relating to the representation of a client, unless the client gives
informed consent in writing. Both rules prohibit the release of any statement made by
the client, former client, or of the client’s identity without the client’s consent. A lawyer
should obtain the written and informed consent of the client to use his or her testimonial,
whether or not the actual client is identified by name, partial name, or likeness. In
Op. 2016-08 4
addition, the lawyer should inform the client of the timeframe in which the advertisement
will run, and allow the client to withdraw his or her consent at any time.
Finally, a lawyer may not give anything of value to a current or former client for
recommending the lawyer’s services through a testimonial. Prof.Cond.R. 7.2(b). If the
advertisement contains a photograph or video depicting a client, and the client is a
portrayed by an actor, the advertisement should contain an appropriate disclaimer.
Online client testimonials and endorsements
A lawyer may place information about his or her services on a website or online
legal directory. This information is a form of advertisement that a lawyer must ensure
complies with Prof.Cond.R. 7.1 and 7.2. A variety of websites, online legal directories,
and social media permit clients and others to endorse or post a review about a lawyer. A
client typically provides a review on his or her own volition and waives the attorney-
client privilege as to any information revealed in the review or comment. A lawyer with
an online presence, who is able to control the content of his or her online profile, should
periodically monitor the content of the profile to ensure the communications about the
lawyer or the lawyer’s services comply with Prof.Cond.R. 7.1. False, misleading, or
nonverified testimonials in the form of client comments or endorsements should be
removed by the lawyer when he or she has control over the content of the profile. See
Penn. Adv. Op 2014-300 (2014). In those instances when the lawyer is unable to control
the content of a website, caution should be exercised when responding to any reviews or
comments, negative or otherwise, left by clients. When responding, the lawyer should
never reveal information related to the representation of the client. Furthermore, none of
the exceptions to Prof.Cond.R. 1.6(b) permit the disclosure of client information in
response to a negative review. See Tex. Adv. Op. 662 (August, 2016).
CONCLUSION: Client testimonials that are not false, misleading, or nonverifiable may
be included in lawyer advertising. A lawyer should endeavor to ensure that the
testimonial is verifiable and carries an appropriate and conspicuous disclaimer when
general results of the representation are communicated. However, advertisements that
use client testimonials in order to communicate the dollar amount of settlements or
verdict awards are inherently misleading even if a disclaimer is utilized. A former or
current client cannot be paid for his or her testimonial, and must give consent to the use
of his or her statement, name, or likeness in the advertisement. If a lawyer has the ability
Op. 2016-08 5
to control the content of an online website, the placement of client comments,
endorsements, or testimonials featuring the lawyer constitutes advertising that must be
periodically monitored by the lawyer to determine compliance with Prof.Cond.R. 7.1 and
7.2.