April 15, 2015 – When marketing legal services, lawyers must be able to factually substantiate their claims. Statements that mislead are violations of the Rules of Professional Conduct.
Question
My law firm is planning to launch a new website and has hired a marketing agency to help with both the design and the content. The marketing agency has researched the websites and marketing techniques of our main competitors and has recommended that we should be more “aggressive” in our marketing. The marketing agency has recommended that we use the following phrases on our new website: that our law firm is a “premier personal injury law firm” in Wisconsin; that our law firm has “over 50 years of experience” even though that number is based on the combined years of experience of the lawyers in the firm; and that our law firm “can help when others cannot.” Do these statements violate the Rules of Professional Conduct?
Answer
Have an Ethical Dilemma?
Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and assistant ethics counsel Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.
SCR 20:7.1 prohibits a lawyer from making a false or misleading communication about a lawyer or a lawyer’s services.1 Under SCR 20:7.1(a), a statement is false or misleading if it “contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”
ABA Comment [2] following SCR 20:7.1 provides further guidance: “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.”
Consequently, a law firm’s advertisement was found to violate Rule 7.1 when that advertisement contained the statement: “Put our 30 years of experience to work for you.”2 While the combined legal experience of the lawyers in the firm equaled 30 years, no individual lawyer in the firm had practiced law for more than 10 years. The North Carolina ethics opinion concluded that such a statement was false or misleading because it omitted a fact necessary to make the statement considered as a whole not materially misleading. The opinion further concluded that to comply with the Rule, the firm’s “advertisement must state that the ‘combined legal experience’ of the lawyers with the firm is 30 years.”3
To comply with SCR 20:7.1(a), the law firm’s advertisement must include the necessary fact that the 50 years of experience is based on the combined years of experience of the lawyers in the firm.
A statement is also false or misleading under SCR 20:7.1(c) if it “compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.” ABA Comment [3] following SCR 20:7.1 provides further guidance: “Similarly, an unsubstantiated comparison of the lawyer's services or 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.”
Consequently, lawyers in a firm were privately reprimanded when they described their firm as a “premier personal injury law firm.”4 “By describing their firm as the ‘premier’ personal injury law firm in their area, the lawyers offered an opinion as to the quality of the services they render, implying that their legal services are better than those provided by other area practitioners.”5
To comply with SCR 20:7.1(c), the lawyers must not state that the firm is a premier personal injury law firm unless that statement can be factually substantiated. Lawyers should be mindful that implicit statements of superiority have the potential to mislead because there is often no objective way to verify the claim.
Similarly, an advertising claim that a lawyer can help a client “when others cannot” violates SCR 20:7.1(c) because it is incapable of substantiation.6 Furthermore, such a claim may violate SCR 20:7.1(b) because it “is likely to create an unjustified expectation about results the lawyer can achieve.” A person unfamiliar with personal injury litigation might understand the advertisement to promise that any claim or case handled by the lawyer would result in a favorable outcome.
Endnotes
1 SCR 20:7.1 Communications concerning a lawyer’s services
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; or
(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated; or
(d) contains any paid testimonial about, or paid endorsement of, the lawyer without identifying the fact that payment has been made or, if the testimonial or endorsement is not made by an actual client, without identifying that fact.
2 North Carolina Legal Ethics Opinion 2004-7.
3 Id.
4 In re Anonymous, 689 N.E.2d 442,443,444 (Ind. 1997).
5 Id.
6 District of Columbia Legal Ethics Opinion 249 (1994).
