When marketing their practices, lawyers certainly want to tell potential clients about their successes. They want the world to know how they have taken care of clients in the past. But lawyers must tread carefully.
Each jurisdiction has its own rules on this issue, but all uniformly prohibit statements that might be false, fraudulent, deceptive or misleading. Some states dictate specific disclaimers that must be included, while others require a disclaimer or context of some sort without providing “magic words” that must be included.
A few specific jurisdictions are discussed below:
New York allows lawyers to publicize past successes but requires this disclaimer: “Prior results do not guarantee a similar outcome.” (New York Rule 7.1(e)(3)).
Alabama also allows publication of past success accompanied by a disclaimer, but does not dictate its language. The statements of the past successes must be true, and the disclaimer must be “explicit, comprehensive and appropriately worded.”
The following disclaimer was quoted with approval in Alabama Formal Op. No. 2003-01:
These recoveries and testimonials are not an indication of future results. Every case is different, and regardless of what friends, family, or other individuals may say about what a case is worth, each case must be evaluated on its own facts and circumstances as they apply to the law. The valuation of a case depends on the facts, the injuries, the jurisdiction, the venue, the witnesses, the parties, and the testimony, among other factors. Furthermore, no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.
North Carolina, like Alabama, requires a disclaimer without prescribing the precise language that must be used. But North Carolina Op. 2009-16 does provide guidance. The disclaimer:
- must be sufficiently tailored to address the information presented in the case summary section;
- must be displayed on the website in such a manner that it is reasonable to expect that anyone who reads the case summary section will also read the disclaimer; and
- Depending on the information contained in the case summary section, an appropriate disclaimer should point out (1) that the cases mentioned on the site are illustrative of the matters handled by the firm; (2) that case results depend upon a variety of factors unique to each case; (3) that not all results are provided; and (4) that prior results do not guarantee a similar outcome.
Georgia allows lawyers to communicate their past successes, but does not require a disclaimer per se. Lawyers in Georgia, however, must be careful not to “create an unjustified expectation about results the lawyer can achieve.” and should reference “the specific factual and legal circumstances” involved.
Florida’s approach is similar to that of Georgia. Advertisements about results obtained on behalf of a client are allowed if the results are objectively verifiable and are not misleading, either alone or in the context in which they are used.
An example of a statement prohibited in Florida is one that “omits pertinent information, such as failing to disclose that a specific judgment was uncontested or obtained by default, or failing to disclose that the judgment is far short of the client’s actual damages…. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.”