Opinion 2206

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:

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[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.