My marketing agency wants me to use the slogan 'Win with [my last name]' and a variant, 'When you want to win, call [my last name],' across internet, TV, radio, and billboard ads. Would that be false or misleading advertising under the rules?
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This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorney, who has maintained a personal injury practice for about fifteen years, wants to launch a multi-channel advertising campaign (internet, print, television, radio, and billboard) built around a short rhyming slogan: "Win with [the attorney's last name]," with a proposed variation, "When you want to win, call [the attorney's last name]." The slogan would be paired with a disclaimer such as "Prior results do not guarantee similar outcome," and the attorney's contingent-fee agreement would include similar disclaimer language separately initialed by the client.
The panel applied Rule 7.1, which bars false or misleading communications about a lawyer or the lawyer's services. The panel traced the rule's history: before an April 2007 amendment, Rule 7.1 separately listed unjustified-expectation and unsubstantiated-comparison language as defining "false or misleading," but consistent with the ABA's 2002 Ethics 2000 amendments to Model Rule 7.1, Rhode Island moved that language into the rule's commentary in 2007 (with the portion about achieving results through rule violations moving to Rule 8.4(e)). The panel quoted the resulting Comments 2 and 3, which ask whether a truthful statement carries a "substantial likelihood" that it will lead a "reasonable person" to a specific, factually unfounded conclusion about the lawyer or the lawyer's services, or to an unjustified expectation that similar results are guaranteed for other clients.
Applying that standard, the panel observed that advertising today is ubiquitous and saturated with slogans, jingles, and sound bites, and that whether an ad is misleading must be measured by reasonableness. The panel concluded there is no substantial likelihood that a reasonable member of the public would read "Win with [name]" or its variation as a claim that the attorney has won, or will win, every case; any such interpretation would be neither substantial nor reasonable. The panel also noted the attorney's planned retainer-agreement disclaimer, making clear that outcomes depend on each case's unique facts, would help dispel any unreasonable expectations. The panel limited its opinion to the permissibility of the slogans themselves, expressly declining to pass on the overall content of the video advertisements the attorney had described in supporting materials.
In practice
The opinion holds that a short advertising slogan combining the word "win" with a lawyer's name does not violate Rule 7.1 merely because it evokes success, so long as there is no substantial likelihood a reasonable member of the public would take it as a literal guarantee of winning every case; a companion disclaimer in the advertising and in the retainer agreement, making clear that results depend on each case's specific facts, supports that conclusion without being strictly required by the holding itself.
Common questions
Q: Can I use a slogan with the word "win" in my law firm advertising?
A: Yes, on facts like these. The opinion holds a rhyming slogan combining "win" with the lawyer's name is permissible under Rule 7.1 because it does not create a substantial likelihood that a reasonable person will conclude the lawyer wins every case.
Q: Do I need a disclaimer to use a slogan like this?
A: The opinion notes the attorney's planned disclaimer, both in the advertising and separately initialed in the retainer agreement, as a fact supporting the conclusion that the slogan won't create unjustified expectations, though the holding turns on the reasonable-person standard for the slogan itself.
Q: Does this opinion clear my whole ad campaign, including the video content?
A: No. The panel expressly limited its opinion to the permissibility of the slogans and did not pass on the overall content of the future video advertisements described in the attorney's submission.
Background and rules framework
The opinion applies Rhode Island Rule 7.1 (Communications Concerning a Lawyer's Services), which bars false or misleading communications. Comments 2 and 3 to the current rule (in effect since the April 2007 amendment) explain that a truthful statement is misleading if there is a substantial likelihood it will lead a reasonable person to a specific, factually unfounded conclusion, or to an unjustified expectation that similar results can be achieved without regard to each case's facts. The pre-2007 rule listed unjustified-expectation and unsubstantiated-comparison factors directly in the rule text; the 2007 amendment moved that language to the commentary, consistent with the ABA's 2002 amendments to Model Rule 7.1, and moved language about achieving results through rule violations to Rule 8.4(e).
Citations and references
Rules of Professional Conduct:
- MR 7.1 (false or misleading communications) and Comments 2-3 (substantial likelihood; reasonable person standard)
- MR 8.4(e) (results achieved through violating the rules or other law)
Statutes:
- None cited.
Cases:
- None cited.
Other opinions cited:
- ABA Annotated Model Rules of Professional Conduct, at 534 (7th ed. 2011) (2002 Ethics 2000 amendments moving unjustified-expectation and comparison language to Model Rule 7.1's commentary).
See also
- Alabama Ethics Op. 2003-01: Various Advertising Issues Addressed
- Alabama Ethics Op. 1993-08: Lawyer's brochure should not include amount of a damage award or lawyer's record in obtaining favorable verdicts
Source
- Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
- Original PDF: https://www.courts.ri.gov/Opinions/EAP%2015-03.pdf
Original opinion text
Final
Rhode Island Supreme Court
Ethics Advisory Panel Op. 2015-03
Issued November 19, 2015
FACTS
The inquiring attorney has maintained a personal injury practice for about fifteen years
and wants to expand his/her law practice by initiating an advertising and marketing campaign.
He/she has engaged an advertising agency to create a competitive marketing campaign that will
consist of internet, print, television, radio and billboard advertising. The inquiring attorney states
that in order to be effective, a marketing campaign must be short, simple, and memorable. The
agency has developed a marketing campaign that is premised on a short and simple rhyming
slogan with the inquiring attorney's last name. The slogan is "Win with [inquiring attorney's last
name]." Use of the slogan would be accompanied by a disclaimer, such as "Prior results do not
guarantee similar outcome." In addition, the inquiring attorney states that his/her contingent fee
agreement would include similar disclaimer language which would be separately initialed by the
client. The inquiring attorney also proposes a variation, "When you want to win, call [inquiring
attorney's last name]."
The inquiring attorney desires to use the rhyming slogans as part of his/her marketing
campaign, but before doing so seeks the Panel's opinion.
ISSUE PRESENTED
The inquiring attorney asks whether use of the rhyming slogans "Win with [inquiring
attorney's last name]" and a variation, "When you want to win, call [inquiring attorney's last
name]," constitute false or misleading communications prohibited by the Rules of Professional
Conduct.
OPINION
The proposed slogans are permissible under Rule 7.1 as they are neither false nor
misleading.
REASONING
The fundamental rule that governs lawyer advertising is Rule 7.1, which prohibits false or
misleading communication about a lawyer or a lawyer's services. The question to be resolved in
this inquiry is whether the proposed rhyming slogans, "Win with [inquiring attorney's last
name]" and the variation, mislead the public about the inquiring attorney's services.
Final Op. #. 2015-03
Page | 2
Rule 7.1 was amended effective April 15, 2007. Prior to the 2007 amendment, Rule 7.1
provided as follows:
A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer's services. A communication is false
or misleading if it:
(a) contains a material misrepresentation of fact or law, or
omits a fact necessary to make the statement considered as a
whole not materially misleading;
(b) is likely to create an unjustified expectation about results the
lawyer can achieve, or states or implies that the lawyer can
achieve results by means that violate the Rules of Professional
Conduct or other law;
(c) compares the lawyer's services with other lawyers' services,
unless the comparison can be factually substantiated;
(d) contains any testimonial about, or endorsement of, the lawyer
without identifying the fact that it is a testimonial or endorsement,
and if payment for the testimonial or endorsement has been made,
that fact must also be disclosed. If the testimonial or endorsement
is not made by an actual client that fact must also be identified. If
the testimonial or endorsement appears in a televised
advertisement, the foregoing disclosures and identifications must
appear continuously throughout the advertisement;
(e) contains a dramatization or simulated description of the
lawyer, partners or associates, offices or facilities, or services
without identifying the fact that the description is a simulation or
dramatization. If the dramatization or simulated description
appears in a televised advertisement, the fact that it is a
dramatization or simulated description must appear continuously
throughout the advertisement. (As amend by the court on October
30, 1997.)
In 2007, Rule 1.7 was amended to state as follows:
A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer's services. A communication is false
or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits
a fact necessary to make the statement considered as a whole not
materially misleading;
(b) contains any testimonial about, or endorsement of, the lawyer
without identifying the fact that it is a testimonial or endorsement,
and if payment for the testimonial or endorsement has been made,
Final Op. #. 2015-03
Page | 3
that fact must also be disclosed. If the testimonial or endorsement
is not made by an actual client that fact must also be identified. If
the testimonial or endorsement appears in a televised
advertisement, the foregoing disclosures and identifications must
appear continuously throughout the advertisement;
(c) contains a dramatization or simulated description of the
lawyer, partners or associates, offices or facilities, or services
without identifying the fact that the description is a simulation or
dramatization. If the dramatization or simulated description
appears in a televised advertisement, the fact that it is a
dramatization or simulated description must appear continuously
throughout the advertisement.(As adopted by the court on February
16, 2007, eff. April 15, 2007.)
Former subsections (b) and (c) were deleted from Rule 7.1 consistent with ABA Model
Rule 7.1 which was amended in 2002 following the recommendation of the ABA's Ethics 2000
Commission. The language relating to unjustified expectations and unsubstantiated comparisons
of lawyers in the former ABA rule were criticized as being overly broad, and in 2002, the ABA
moved that language to the rule's commentary as examples of misleading communications. See
ABA Annotated Model Rules of Professional Conduct, at 534 (7th ed. 2011.) That language in
the Rhode Island Rules was likewise moved to the commentary in 2007. In line with the 2002
ABA amendments, the latter portion of former subsection (b) prohibiting statements that indicate
a lawyer can achieve results by violating the Rules of Professional Conduct or other law, was
added to Rule 8.4 (e) under the 2007 amendments to the Rhode Island Rules.
The new language about misleading statements and unjustified expectations in the Rhode
Island commentary adds noteworthy qualifiers that were not part of the predecessor rule.
Comments 2 and 3 now include "substantial likelihood" and "reasonable person" standards. In
pertinent part, Comments [2] and [3] state as follows.
[2] . . . . A truthful statement is misleading if it omits a fact
necessary to make the lawyer's communication considered as a
whole not materially misleading. A truthful statement is also
misleading if there is a substantial likelihood that it will lead a
reasonable person to formulate a specific conclusion about the
lawyer or the lawyer's services for which there is no reasonable
factual foundation.
[3] An advertisement that truthfully reports a lawyer's
achievements on behalf of clients or former clients may be
misleading if presented so as to lead a reasonable person to form
an unjustified expectation that the same results could be obtained
for other clients in similar matters without reference to the specific
factual and legal circumstances of each client's case. . . ..
Final Op. #. 2015-03
Page | 4
The issue before the Panel, more particularly stated, is whether there is a substantial
likelihood that the proposed rhyming slogan "Win with [inquiring attorney's last name]" and its
variation would lead a reasonable person to form an unjustified expectation about the results the
inquiring attorney can achieve. The Panel is of the opinion that they do not.
Advertising today is everywhere – internet, television, radio, billboards and printed media
of every variety. The marketplace is saturated with all manner of slogans, jingles, rhymes, and
sound bites developed to capture the attention of prospective consumers of goods and services in
a competitive business world. Whether and to what extent an advertisement is deemed
misleading must be measured by standards of reasonableness.
The inquiring attorney's proposed rhyming slogans contain the word "win" together with
the inquiring attorney's last name. The Panel does not believe that there exists a substantial
likelihood that a reasonable member of the public would conclude from the inquiring attorney's
rhyming slogans that the inquiring attorney has won or will win every case. The likelihood that
the slogans might possibly be interpreted as creating such expectations is neither substantial nor
reasonable, and would not justify a finding under the Rules that the slogans are misleading. The
Panel notes that the inquiring attorney will include language in his/her retainer agreement which
makes clear that the outcome of every case depends on its unique facts and circumstances, and
other language that will dispel any unreasonable expectations.
Attached to the inquiring attorney's request was a list of very brief descriptions of future
video advertisements that may contain the proposed slogans. The Panel's opinion is limited to
the permissibility of the slogans, and does not extend to the overall content of future videos.
The Panel concludes that the proposed rhyming slogans, "Win with [inquiring attorney's
last name], and its variation, are permissible under Rule 7.1 as they are neither false nor
misleading.
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