Will Hornsby unpacks ABA Model Rule 7.2 and explains what lawyers need to know about avoiding false or misleading ads, misleading statements, and omissions transparency.
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This is the second in our three-post series exploring questions about the ethics of law firm marketing. Lawyers and marketers who understand the issues discussed here should find themselves in a position to not only comply with the applicable ethics rules, but also to maximize their marketing endeavors.
The first post addressed when a law firm’s marketing endeavors must comply with the state rules of professional conduct. This post examines false and misleading communications.
False or Misleading Communications: The Prohibition
Although misleading communications are prohibited in every state, not every state agrees on exactly what a misleading communication is. When it comes to the regulation of lawyer advertising, every state agrees on one thing — false and misleading communications will not be tolerated. The prohibition of false and misleading communications is the cornerstone of the ethics rules governing lawyer advertising.
Most states have adopted the current version of ABA Model Rule 7.1. It is a simple statement but leaves a lot of room for interpretation. The rule states:
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 contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
While we unpack this rule, note that several states embrace this standard, but include additional and sometimes specific restrictions. Therefore, it is essential that lawyers and law firm marketers check the state rules that apply to their marketing endeavors. You can link to the Rules of Professional Conduct in your state from the ABA website here, then look for your state’s equivalent to Model Rule 7.1.
Looking at ABA Model Rule 7.1, we first see the prohibition applies to statements that are simply false. False statements are sometimes brazen. For example, a lawyer may misrepresent academic or professional accomplishments or, as we see from time to time, misrepresent military honors. (See “Judge Censored Over Fake Medal.” )
Fortunately, these examples are rare, but when the representations unravel, they sometimes become high-profile stories. Since it is difficult, if not impossible, for large firms to fact-check every lawyer’s online bio, firms may want to consider an option that requires lawyers to verify that their representations are factual. I know, a hard sell, but a good protection nevertheless.
On the other hand, a false statement may be relatively benign. For example, think of when a law firm website indicates the firm provides representation in all matters, all areas of the law, or is perhaps even “full-service” when the scope of services is actually something less. (See the North Carolina Bar’s article “Misleading Communications: The Bad, the Ugly, the???”)
A “false communication” can also apply to an illustration, when, for example, a website has a map of the U.S. or a globe, indicating that services are available nationally or internationally when the capacity of the firm is not that broad.
Lastly, when a lawyer leaves a firm and the firm does not remove the lawyer’s bio and related information within a reasonable timeframe, this too could be a false representation.
Solo and small firms sometimes falsely indicate the breadth of their capacity by using names such as “The Law Offices of Jane Doe,” when she only has one office, or “Smith & Associates” when there are no associates. (See NYSBA Ethics Opinion 931.)
The bottom line is that regulators may interpret marketing communications very literally when assessing whether statements are false.
Next, lawyers are prohibited from making misleading communications in their marketing materials, even when the statements are truthful. For example, a law firm may advertise “no recovery – no fee,” but then charge the client for the costs of the matter. It is reasonable to conclude that “no recovery – no fee” means no expense and a statement like this would mislead a potential client when there is, in fact, an expense associated with the representation.
Firms may also misrepresent their experience. In one example, a firm stated that it had “40 years of experience,” even though the firm had not operated that long and no individual lawyer had practiced that long. The statement referred to the total years of experience of all the lawyers in the firm. Advertising the accumulated years of experience would be truthful, but misrepresenting it as the tenure of the firm is likely to be misleading. Likewise, representations of accumulated amounts of judgments or settlements — for example, “$30 million collected for our clients” — can be misleading if it is not clear these are accumulations.
One difficult issue involves the communication of a lawyer’s past endeavors or representations when at a previous firm. A misrepresentation can generally be avoided through transparency and a clear indication this was the work product of the individual lawyer and not of the firm.
The final part of ABA Model Rule 7.1 prohibits a lawyer from “omitting a fact necessary to make the statement considered as a whole not materially misleading.” Notwithstanding the awkward language, this provision requires lawyers to include the whole story. For example, if a firm advertises that it obtained a $2 million verdict but the case was settled for less or overturned on an appeal, the statement would be truthful but misleading by omission. Similarly, if $3 million had been offered prior to the $2 million verdict, omitting that fact could also be deemed misleading. (See the Virginia State Bar’s “Checklist for Lawyers Who Advertise.”)
An omission can also occur when a lawyer advertises that he or she had been awarded an honor or included in a selective directory. If the honor is given to lawyers annually and the lawyer was selected one time, say, 10 years ago, advertising that honor as if it is current, without a further explanation, could be a misrepresentation by omission.
Endorsements and testimonials can also be landmines for omissions. For example, some states require communications that include paid endorsements to indicate that the person making the endorsement was paid. Similarly, if a firm’s client development materials include online reviews from prior clients, but cherry-picks those reviews or edits them in ways that are favorable to the firm, the omission of portions of the reviews may be deemed misleading.
Transparency and Disclaimers
As indicated, a key to avoiding misleading communications is transparency, providing sufficient information so that a potential client understands the representations made in the advertisements. The Comment to Model Rule 7.1 encourages the use of disclaimers. A few states require a disclaimer when a lawyer advertises information about past matters. Recognizing that every legal matter is different, it may be misleading to provide information about a prior representation suggesting to potential clients that they will have a similar outcome.
Generally, a statement to the effect that “every matter is unique and prior results should not be an assurance or guarantee of future outcomes” may address this problem.
While it is rare for firms to purposefully include false or misleading representations in their marketing materials, it is not at all uncommon for firms to either push the envelope or inadvertently include information that some states may claim crosses the line. In some ways, strict interpretations of the prohibition against false and misleading communications impose restrictions on marketing that may undercut the impact of the client development efforts. Nevertheless, lawyers and marketers should keep these limitations in mind and use their creative skills to pursue clients within the boundaries of the ethics rules.
Finally, a note of caution: While the information in this post is designed to provide general direction and assist readers in their understanding of issues regarding false and misleading communications, this information is not legal advice and you should not depend on it as such. Please consult the precise terms of the state rules of professional responsibility that apply to your circumstances and, if need be, consult your lawyer regarding your obligations.
You Might Also Like:
- When Is Your Communication an Ad?”
- “Navigating the Maze of Lawyer Advertising Rules”
- “Ethics Rules: Be the Change”
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