Opinion 802

[Formerly published as Published Informal Opinion 97-1. This opinion is a revised version of 91-1. All Informal Opinions are consolidated in this database.]

Rule 7.1 of the Rules of Professional Conduct provides: 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 *** (b) Is likely to create an unjustified expectation about results the lawyer can achieve...***

The Rules of Professional Conduct Committee recently had occasion to review an advertisement for a lawyer`s services which cited specific jury verdicts and other results the lawyer had obtained in specific cases. The Committee is of the opinion that such an advertisement, even if true, does not comply with RPC 7.1(b), unless it includes a sufficiently prominent disclaimer.

Rules 7.1 of the Model Rules of Professional Conduct of the American Bar Association is identical to Washington`s RPC 7.1. The comments to the model rule, although not formally adopted as a part of Washington`s rule, are instructive. They say:
The prohibition in paragraph (b) of statements that may create "unjustified expectations" would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of damage award or the lawyer`s record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.

In the opinion of the Committee, even though a statement in an advertisement may be factual, it may be misleading if it omits relevant facts and circumstances to permit a potential client to fully understand its significance. The types of statements which concern the Committee are along the line of "largest jury verdict" and "largest recovery ever obtained." A similar opinion from Alabama (#90-61) gives as examples "landlord negligently maintains common areas, tenants sprain ankles, $11,500.00"; "Insurance company wrongfully refuses to pay $2,000.00 hospital bill, $30,000.00"; "Negligent operation of automobile results in torn knee cartilage, $40,000.00"; and "Hospital and physician malpractice resulting in leg amputation, $300,000.00."

However, the Committee believes that the potential for creating unjustified expectations can be eliminated if such claims are accompanied by an appropriate disclaimer. Whether a particular disclaimer is sufficient will depend on its content and the manner in which it is displayed in the context of the advertisement. A disclaimer must at a minimum (1) be displayed at least as prominently as the references to results themselves and (2) contain information that would lead a reasonable person to understand that the attorney is not claiming to be able to reproduce such results in a particular case. For example, a statement in a printed advertisement about the results in a particular case would not, in the Committee`s opinion, violate the rule if accompanied by an equally prominent statement to the effect that each case is different and that prior results should not create an expectation about results in an individual case. The Committee believes that a disclaimer is "equally prominent" if contained in the same font and at least the same size print as the claims themselves, and its import is not obscured or minimized by other language or materials in the advertisement.

The Committee also believes that statements in printed advertisements about results in particular cases must be factually accurate. This may, in particular cases, require information to be included that limits the import of the statements. For example, statements about "largest award" or "largest verdict" should indicate the date as of which these statements are true since there may have been events subsequent to the publication of the advertisement that would make the statements no longer true.

Similarly, the Committee is of the opinion that client testimonials and statements that purport to convey information but in fact are meaningless fail to comply with RPC 7.1(b). Examples are "Attorneys who get results" and "Over 50 years combined experience" and "Lawyers who work hard." Such statements fail to convey any meaningful information to persons seeking legal services, and may mislead the unwary consumer into believing that they mean more than they do.

The United States Supreme Court`s opinions on lawyer advertising, beginning with Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed.2d 810 (1977), have made it clear that lawyers have a constitutional right to advertise, but that those advertisements may not be deceptive or misleading. Quoting Bates, the Court has said that it "recognized that advertising by professions poses special risks of deception — `because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising.`" In re R.M.J., 455 U.S. 191, 200, 102 S. Ct. 929, 71 L. Ed.2d 64 (1982). However, the Court has also stated that "because disclosure requirements trench much more narrowly on an advertiser`s interests than do flat prohibitions on speech, `warning[s] or disclaimer[s] might be appropriately required...in order to dissipate the possibility of consumer confusion or deception.`" Zauderer v. Ohio Disciplinary Counsel, 471 U.S. 626, 105 S. Ct. 2265, 2282 (1985).