Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Use of Case Results in Attorney Advertisements

In the last few Ethics Corner pieces we have addressed various aspects of truthfulness in advertisements as required by Rule of Professional Conduct 1-400(D)(1-3).  This rule prohibits, among other things, a “communication” or “solicitation,” as defined, that contains any untruthful, deceptive, confusing, or misleading information, or omits any fact necessary to make a statement not misleading.  On August 24, 2010, the Attorney General’s office filed a civil complaint for penalties and permanent injunction, among other relief, against attorney Roni Lynn Deutch and her professional tax corporation for, inter alia, advertisements that allegedly contain materially false and misleading statements.  As an example, the AG’s office alleges that Deutch’s firm claims to have saved “three particular clients from having to pay the IRS $12,000, $39,000, and $35,000, respectively,” when “[i]n fact, Defendants did not save these particular clients any money, but merely placed them on currently not collectible status with the IRS, a kind of tax collection purgatory,” and that the clients were “still liable for the entire tax debt.”  As there is normally another side to every lawsuit, it should be noted that Ms. Deutch issued a statement denying the charges, and that, among other things, she believes “the civil complaint against my law firm and me to simply be election year politics,” that the firm has “saved thousands of people tens of millions of dollars,” and that she looks “forward to a full and fair airing of this matter in a court of law….”

Whatever the merits of the above case (of which this author has no opinion), it brings to mind certain dangers in using past case results in advertisements.  Here are three considerations:

1) Is it true (1-400(D)(1)) and does in contain all information necessary so that it does not “tend[] to confuse, deceive, or mislead the public”? (1-400(D)(2).) Does it “[o]mit to state any fact necessary to make the statements…not misleading to the public”? (1-400(D)(3).) 

Among other possible areas, this concern arises in listing verdicts and judgments.  Attorneys understand that a verdict/judgment might be reduced in post-trial motions or otherwise later settled for a smaller amount, but members of the public generally do not know this.  Listing verdicts/judgments is generally acceptable because, at the very least, it shows the kinds of trial level results the attorney has obtained via his/her  skills—an indispensable step towards the ultimate client recovery.  This is meaningful information to prospective clients.  However, if the verdict/judgment was not the amount ultimately obtained, then some qualifying language, e.g., “ultimate recovery was less via post-trial settlement,” should be included lest it constitute an omission of fact that makes the statement misleading to the public.  

2) Is it actually your result?

Using results obtained by lawyers in one’s prior firm is highly questionable.  To be sure, when advertising one’s current firm, it would normally appear to be fair game to set forth the results the firm has obtained because it shows what the firm can achieve with its collective legal resources.  However, if one did not have a meaningful role in bringing about the result, or, worse, did not even work on the case, it is best not to use results from one’s prior firm.  Similarly, if a result was obtained by a particularly skillful attorney who is no longer with a firm, the firm might want to think twice before using that case result.

3) Is there a disclaimer?

Pursuant to 1-400(E), the State Bar has adopted certain “Standards” which are presumed violations of this rule.  Among many others, this includes use of testimonials/endorsements unless these are accompanied by an express disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.”  Listing case results often comes hand in hand with a client endorsement, e.g., a TV/internet ad where a client states the case result.  However, many attorneys fail to include a disclaimer.  Furthermore, even where an advertisement, regardless of form, contains no endorsement, it is a very good idea to include such a disclaimer as it helps to get the point across that the attorney is not making a guarantee/prediction regarding the result of the representation, which is itself a presumed violation. (1-400, Standards, (1).)

--Luis E. Ventura

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**