By Samson Habte
Client testimonials in attorney advertisements must be accompanied by a disclaimer only if the endorsements “go to the outcome of a case or matter,” the North Carolina bar's ethics committee advised July 20 (North Carolina State Bar Ethics Comm., Formal Op. 2012-1, 7/20/12).
A disclaimer warning that prior successes are not indicative of future results is mandated only for “hard” endorsements that “indicate a particular favorable result,” and need not accompany “soft” client testimonials that merely offer general praise for an attorney's competence, diligence, values or other characteristics, the committee said.
The opinion cautions that “a reference to specific dollar amounts in client testimonials” is categorically prohibited, whether or not the advertisement features a disclaimer.
The opinion was prompted by an inquiry seeking clearer guidance as to the scope of a disclaimer requirement that is mentioned in the commentary--but not in the black letter--of ethics rules pertaining to lawyer advertising.
The relevant provision, the committee said, is North Carolina Rule of Professional Conduct 7.1, which focuses on “communications about a lawyer's services.” The rule has two sections: 7.1(a), which generally prohibits “false or misleading communication[s] about the lawyer or the lawyer's services”; and 7.1(b), which focuses on advertisements containing “a dramatization [that] does not depict actual events or real persons.”
Rule 7.1(b) makes clear that fictional depictions in attorney advertisements must be accompanied by disclaimers alerting consumers that the communication contains a dramatization. However, there is no express disclaimer requirement in the text of Rule 7.1(a). Instead, prior opinions and court decisions have inferred a disclaimer requirement from two sources:
• the definition of “false or misleading” in Rule 7.1(a)(2), which explains that statements “likely to create an unjustified expectation about results the lawyer can achieve” will be deemed false or misleading; and
• Comment  to Rule 7.1, which states that advertisements that “truthfully report 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.”
The comment further provides that 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 committee previously drew a distinction between “soft” and “hard” client endorsements in an opinion issued four years earlier. In North Carolina Ethics Op. 2007-4 (2008), the committee advised that “soft” endorsements that speak to “characteristics of the lawyer's client service” but do not describe “the results that the lawyer achieved” are permissible--so long as they “do not create unjustified expectations about the results that the attorney can achieve.” The opinion's brief, two-sentence discussion of the issue did not address the permissibility of “hard” testimonials or any disclaimer requirements, however.
The issue came up again in North Carolina Ethics Op. 2009-16 (2010). In that opinion, the committee concluded that a law firm's website “may include a case summary section showcasing successful verdicts and settlements if the section contains factually accurate information accompanied by an appropriate disclaimer. ” The disclaimer must be “sufficiently tailored to address the information presented in the case summary section,” the panel said, adding:
Depending on the information contained in the case summary section, an appropriate disclaimer should point out that the cases mentioned on the site are illustrative of the matters handled by the firm; that case results depend upon a variety of factors unique to each case; that not all results are provided; and that prior results do not guarantee a similar outcome.
In the present opinion, an inquirer sought clarification as to whether “testimonials that merely imply positive results but do not state specific results [are] considered 'soft' endorsements” that are permissible without disclaimers. As examples, the inquirer cited such statements as “the attorney did a great job for me” and “I was pleased with the outcome of my case.”
The inquirer also asked whether “testimonials that do not include any specific monetary amounts but do indicate a favorable result” may be considered “soft” endorsements. This type of testimonial, the inquirer said, might include a client's statement that a case was “settled to my satisfaction,” or that “the charges were dropped,” or that “my medical bills were covered.”
“If these kinds of testimonials are not considered soft endorsements,” the inquirer asked, “are they still permissible in legal advertising? Do they require disclaimer language similar to language required by [Op. 2009-16]?”
In its response, the committee stressed the hard/soft distinction. Only “hard” testimonials that refer to “the outcome of a specific matter” are “likely to create unjustified expectations,” it stated, and such endorsements must include disclaimers. Examples of hard testimonials, the committee said, include:
• “The charges against me were dropped/dismissed.”
• “My medical bills were covered/paid.”
• “I was able to get Social Security/workers' compensation benefits.”
• “My lawyer settled my case for $500,000.”
As to this last example, however, the committee declared that “a reference to specific dollar amounts in client testimonials” is categorically prohibited, whether or not the advertised endorsement is paired with a disclaimer.
By contrast, “soft” client testimonials offer general praise for an attorney's “characteristics or values,” the panel explained, and endorsements of this sort do not require disclaimers. “These statements are permissible under Rule 7.1 because they do not refer to the outcome of a particular matter and do not create unjustified expectations about the results the lawyer can achieve in any case,” it said.
As to form, the committee stated that an appropriate disclaimer “may be oral or written” and “must appear or be spoken at the beginning and the end of the communication and must be conspicuous.”
Where print advertisements are concerned, the conspicuousness requirement dictates that the disclaimer be “printed in the same font size and color as the font size and color used for the testimonial,” the committee said.
A disclaimer in radio advertisements--which by their nature can only be delivered orally--must be “spoken at the same volume as the testimonial and must be spoken at a conversational speed that is easily understood,” the opinion adds.
Disclaimers accompanying television commercials can be oral or written, the committee said. If a written disclaimer is used, the panel advised, the lawyer should make sure that the words “appear on the screen in a conspicuous font size and color … for a sufficient amount of time that a lawyer can reasonably conclude that a reasonably competent individual viewing the advertisement has the time to read the disclaimer.”
Video testimonials embedded in law firm websites may likewise contain either oral or written disclaimers, the committee said. Written disclaimers should either appear in the video or be conspicuously placed “directly above or below the link to the video containing the testimonial,” the opinion advises.
Finally, the committee observed that “certain mediums would not allow for a disclaimer that would meet the requirements” of Rule 7.1. “For example, it is not reasonable to expect a driver to have time to read a disclaimer on a roadside billboard,” the opinion states.
Full text at http://www.ncbar.com/ethics/printopinion.asp?id=861.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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