LAWYER ADVERTISING OPINION A-0113
STATEMENTS BY THIRD PARTIES
Can a lawyer circumvent the prohibition against comparative statements with the use of client testimonials?
A hypothetical will serve to illustrate this question. A lawyer's television advertisement shows a former client making statements about the client's satisfaction and about the quality of the lawyer's services. Such statements include comments that the lawyer is "the best" and will get you "quick results."
Rule 7.1 prohibits advertising that contains statements that are "false, fraudulent, misleading, or deceptive." The rule contains a list of specific items that are deemed to violate that prohibition. For example, Rule 7.1(a)(3) prohibits statements comparing attorneys= services, unless the comparison can be factually substantiated. Several prior opinions of this committee have added to the list of clear violations for this prohibition. For example, A-0109 prohibits, as misleading, the advertising of specific case results. Thus, an attorney has clear guidance as to the impropriety of making certain statements in his advertising.
Do those same content restrictions apply where the statement is not made by the attorney but by a former or current client in the form of a testimonial? Rule 8.4(a) states that an attorney shall not violate a discipline rule through the actions of another. Moreover, the language of the restriction in Rule 7.1 makes no qualification as to the maker of the regulated statements. To the contrary, the rule's requirements are directed at any statements contained in the communication. Thus, there is no support in Virginia's professional conduct rules for affording greater leeway to advertising statements made by clients than to those made by attorneys. The standard, that dictated in Rule 7.1, is the same in both instances. Applying that standard to this hypothetical, the client's statements make a comparison ("the best") that cannot be factually substantiated and offer a guarantee of results ("quick"). As those improper statements are contained in the lawyer's advertisement, the lawyer would be in violation of Rule 7.1 were he to televise this advertisement.
In further clarification, even statements of opinion by clients that contain comparative statements are not appropriate. This committee adopts the mixed approach, used in Pennsylvania, while prohibiting testimonials regarding results and/or comparisons, it does allow "soft endorsements." Philadelphia Ethics Opinion 91-17; Pennsylvania Bar Association Ethics Opinion 88-142. Examples of "soft endorsements" include statements such as the lawyer always returned phone calls and the attorney always appeared concerned. Id.
In sum, the requirements for lawyer advertising are all intended for the protection of the public. The restrictions on advertising content are carefully chosen to avoid misleading the public as they make the important choice of whom to select for legal representation. This committee will not erode that protection where non-lawyers or their statements appear in the advertisements. Such a distinction would violate both the language of the pertinent discipline rule and the spirit behind it.
February 29, 2000