Can a lawyer run advertising testimonials that state specific settlement or award dollar amounts, and is a disclaimer required?

Plain-English summary

A lawyer and firm considered placing yellow-pages advertisements featuring former-client testimonials that specifically mention the dollar amount of settlements or awards, and asked whether such testimonials are ethically proper and whether a disclaimer should be included. The committee answered that they are proper, presuming former-client permission is obtained, client confidences are kept, and the testimonials and advertisement are not misleading, and that a disclaimer is required if needed to keep the advertisement from being misleading.

The committee grounded the analysis in RPC 7.1, which prohibits false or misleading communications and defines a communication as misleading if it omits a fact necessary to make the statement, considered as a whole, not materially misleading. It relied on the 2006 comments: a truthful statement is misleading if there is a substantial likelihood it leads a reasonable person to a specific conclusion with no reasonable factual foundation (Comment 2), and an ad truthfully reporting achievements can be misleading if it leads a reasonable person to form an unjustified expectation of similar results without reference to each case's specific facts, with an appropriate disclaimer or qualifying language potentially precluding such a finding (Comment 3). Drawing on prior Informal Opinions 1182 and 802 (which the committee said the 2006 amendments did not undermine), it listed guidance: comparative-results claims must be dated to assess truthfulness; a disclaimer's font must match the claim's and cannot be minimized or obscured; language that each case differs and prior results do not guarantee future ones is helpful; and statements conveying no meaningful information ("Attorneys who get results") are prohibited. The committee reminded that RPC 1.6 and 1.9 require client consent before revealing representation information, presumed consent here, and emphasized it had not reviewed or approved any specific advertisement.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee allowed dollar-amount testimonials within the RPC 7.1 misleading-communication framework. The opinion holds that such testimonials are permissible with former-client consent and confidentiality, and that a disclaimer is required only when one is needed to prevent the ad from creating an unjustified expectation of similar results. It restated concrete guidance from Informal Opinions 1182 and 802 on dating comparative claims, disclaimer prominence and font parity, helpful qualifying language, and the prohibition on empty slogans, while stressing it was not passing on any particular advertisement and that the lawyer remains accountable for avoiding false or misleading statements.

Common questions

Q: Can a lawyer advertise a client testimonial that names the settlement or award amount?

A: Yes, the committee concluded such testimonials are proper if the former client permits it, confidences are kept, and the testimonials and advertisement are not misleading under RPC 7.1.

Q: Is a disclaimer always required?

A: No. The committee said a disclaimer is required only where it is needed to keep the advertisement from being misleading, for example to prevent an unjustified expectation that similar results are guaranteed.

Q: What makes a results-based testimonial misleading?

A: Per the committee and the RPC 7.1 comments, leading a reasonable person to expect the same results without reference to each case's specific facts, undated comparative-results claims, obscured or undersized disclaimers, or empty slogans that convey no meaningful information.

Q: What about client confidentiality in a testimonial?

A: The committee said the lawyer must heed RPC 1.6 and 1.9 and not reveal information relating to the representation without the client's informed consent; its answer presumes consent is obtained before publication.

Background and rules framework

The opinion interpreted Washington RPC 7.1 (Model Rule 7.1, false or misleading communications about a lawyer's services) and its 2006 comments, along with RPC 1.6 and RPC 1.9 (Model Rules 1.6 and 1.9, confidentiality as to current and former clients). It applied prior Informal Opinions 1182 and 802 on testimonial and comparative-results advertising.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / Washington RPC 7.1 and Comments 2-3 (false or misleading communications)
• Model Rule 1.6 / Washington RPC 1.6 (confidentiality)
• Model Rule 1.9 / Washington RPC 1.9 (duties to former clients)

Other opinions cited:

• WSBA Informal Opinions 1182 (1988) and 802 (1997) (testimonial and comparative-results advertising)

See also

• WA Ethics Op. 2193: distributing legal-services flyers door-to-door
• WA Ethics Op. 2180: practicing under a prior name after a name change

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1651

Original opinion text

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

Advisory Opinion: 2206
Year Issued: 2010
RPC(s): RPC 7.1, 1.6, 1.9, Informal Op. 1182, 802
Subject: testimonials in advertising

QUESTIONS PRESENTED:

1. Are testimonials that specifically mention the dollar figure of settlements or awards ethically proper? 2. Should a disclaimer be included?

SHORT ANSWERS:

1. Yes, presuming that former client permission is obtained and client confidences are kept, and presuming that the testimonials and advertisement are not misleading. 2. Yes, if required to keep the advertisement from being misleading.

DISCUSSION AND ANALYSIS:

The inquiring lawyer and firm are considering placing advertisements in yellow pages that include testimonials from former clients that specifically mention the dollar amount of settlements or awards. The inquiry provided examples of other firms’ advertising as a sample of their intent, and noted that all but one of the samples included disclaimers such as “Results of your case depend on its merits.” The inquiry asked whether such disclaimers were required to make the advertisement “ethical.”

This question is largely governed by RPC 7.1, which prohibits “false or misleading” communications about the lawyer’s services. RPC 7.1 specifically defines a communication as “false or misleading” if it omits a fact necessary to make the statement considered as a whole not materially misleading. Additionally, two previous Informal Opinions of the Washington Rules of Professional Conduct Committee--Wash. Rules of Prof’l. Conduct Comm., Informal Op. 1182 (1988) (“Op. 1182”); Wash. Rules of Prof’l. Conduct Comm., Informal Op. 802 (1997) (“Op. 802”)--completely address the current inquiry. Although the RPCs were amended in 2006, the amendments to RPC 7.1 do not undermine the analysis or change the results of Op. 1182 or Op. 802.

The Comment adopted expressly in 2006 with the RPC revision further clarifies this analysis. The Comment states in part:

[2] Truthful statements that are misleading are also prohibited by this Rule. 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 can 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. Similarly, an unsubstantiated comparison of the lawyer’s services of fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

The prior Informal Opinions of the RPC Committee provide still further guidance. For example:

• Comparative Results claims (“largest award in ABC County”) must be dated to establish the publication date to assess truthfulness. • Font size of disclaimers must be equivalent to font size of claims themselves. • Disclaimer cannot be minimized or obscured. • Language that each case is different and prior results should not create expectation of results in new case would be helpful. • Statements that do not convey meaningful information (e.g., “Attorneys who get results”) are prohibited.

See Op. 1182 and Op. 802, supra. In the context of reporting testimonials, a lawyer should also be mindful of the requirements of RPC 1.6 and RPC 1.9, requiring lawyers not to reveal information relating to the representation of a client unless the client gives informed consent or except as the RPCs permit. Based upon the question posed here, however, this answer presumes client consent is obtained before the testimonial is published.

Finally, the RPC Committee notes that in formulating this answer, it has not reviewed or approved any proposed advertisement, and is not making any comment on the appropriateness of any current advertisements. Those determinations are factual in nature and are not before the Committee, nor within its purview. The lawyer and the lawyer’s firm remain accountable to abide by the RPCs and to avoid false or misleading statements.