May a lawyer advertise a large verdict and an aggregate settlement amount in a yellow pages ad?

Plain-English summary

The requested yellow pages advertisement reported a $4 million verdict and $3.8 million in settlements over three years, followed immediately by a statement that past performance did not guarantee future results. The committee considered whether those claims might mislead readers or be incapable of substantiation under Rule 7.1(a).

It called the disclaimer, in the same type and immediately following the results, the proper approach to avoid a misleading communication. It remained concerned that “Largest Verdict” could mislead without identifying the jurisdiction and that the lawyer’s client received it. It also questioned whether the aggregate settlement claim could be substantiated, since settlements are often confidential and the ad did not explain how many claims produced the total. The committee suggested deleting the settlement amount and left responsibility for accurate verdict claims with the lawyer.

Currency note

This opinion was issued in 2000, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Did the disclaimer settle every advertising concern?

A: No. The committee endorsed its placement but still identified concerns with both the verdict and settlement claims.

Q: What change did the committee suggest for the verdict claim?

A: It suggested stating the verdict’s jurisdiction and that the lawyer’s client received it.

Q: What did it suggest about the settlement total?

A: It suggested deleting the “3.8 Million Dollars in Past Settlements” reference.

Background and rules framework

Rule 7.1(a) barred a material misrepresentation or omission and an assertion that could not be substantiated. The committee said it does not investigate advertising claims or preapprove advertisements.

Citations and references

Rules of Professional Conduct:

• North Dakota Rule 7.1(a).

Other opinions cited:

• North Dakota Opinion 98-06, advertising review.
• North Dakota Opinion 97-11, advertising review.

See also

• ND Ethics Op. 1998-06: yellow pages ad
• ND Ethics Op. 1997-11: medical office advertising

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/00-03.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE

OPINION NO. 00 - 03
MAY 3, 2000

The Committee has received a request for its opinion on a question involving

lawyer advertising. The issue is whether a certain telephone yellow page advertisement

conforms to the requirements of North Dakota Rule of Professional Conduct 7.1(a).

FACTS

The full page advertisement lists types of cases handled, license information,

minimal fee information, toll free telephone number, email address, and website. In the

middle is this statement:

Largest Verdict-
4 Million Dollars (July 1998), &
3.8 Million Dollars In Settlements
In The Past 3 Years

Past performance is no guarantee of future results, for every case has a different value.

The lawyer intends to use the advertisement in North Dakota. He asked for

recommendations of the Committee.

DISCUSSION

N.D.R. Prof. Conduct 7.1(a), which applies to communications made for

advertising purposes, provides:

A lawyer shall not make a false or misleading communication about the
lawyer, a person professionally associated with the lawyer, or their
services. A communication is false or misleading if it:

1

(1) contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially
misleading; or

(2) contains an assertion that cannot be substantiated.

The Ethics Committee can provide only limited guidance to lawyers concerned

about the content of their advertising. The Committee is not investigatory and cannot

verify the veracity of the various statements that could be made in the context of lawyer

advertising. It remains the obligation of the lawyer to ensure that a communication is

truthful and not misleading. Thus, the Committee will not pre-approve a brochure or

other similar document. The Committee has never explicitly determined that an

advertisement met the requirement of Rule 7.1. Rather, the Committee has identified

specific concerns about the content of a specific advertisement or solicitation. State Bar

Association of North Dakota Ethics Committee Opinion 98-06 (July 14, 1998); State Bar

Association of North Dakota Ethics Committee Opinion 97-11 (November 11, 1997).

The specific concern raised by this advertisement is the statement regarding past

results and past performance. It is reviewed in the context of whether the

communication contains a material misrepresentation or omission, or contains an

assertion that cannot be substantiated.

The Committee believes the caveat: "Past performance is no guarantee of

future results, for every case has a different value" in the same type set and

immediately following the statement regarding past performance is the proper approach

to avoid a misleading communication. The Committee, however, still has a concern over

part of the statement. While a verdict in dollars is a discernable, verifiable, public record,

2

the Committee is concerned "Largest Verdict" may be misleading if it does not indicate

the jurisdiction of the verdict or that it was received by the lawyer's client. A statement of

"Dollars in Settlements" also posses risks for misinterpretation. Settlements are often

confidential so the amounts cannot be substantiated. We do not know if the $3.8 million

in settlements was for three or three thousand claims. We do not know when in the

course of disputes were the settlements achieved. The Committee suggests the

statement "Largest Verdict" should indicate the jurisdiction and that it was the lawyer's

client who received it. The Committee also suggests the reference to "3.8 Million Dollars

in Past Settlements" be deleted. The lawyer has the responsibility to ensure that a

statement does not contain a material misrepresentation or omission regarding the

verdict.

This opinion is provided pursuant to North Dakota Rules of Lawyer Discipline

1.2(B), which states:

A lawyer who acts in good faith and reasonable reliance on a written opinion or advisory letter of the ethics committee of the association is not subject to sanction for violation of the North Dakota Rules of Professional Conduct as to the conduct that is the subject of the opinion or advisory letter.

This opinion was drafted by Paul K. Sandness and was approved by the majority

of the Ethics Committee on May 3, 2000.

Mark Hanson, Chair

3