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OBA Ethics Counsel

Ethics Opinion No. 320

Adopted October 15, 2004

TOPIC: Advertising

INQUIRY: May an attorney list or itemize in any advertising, specific amounts awarded by jury verdicts or negotiated by settlement? Or, in the alternative, would such advertising violate Rule 7.1(a), Oklahoma Rules of Professional Conduct? Would such an advertisement still constitute a violation of the Rule if the attorney also included in the advertisement a disclaimer that the list or itemization was not to infer the probability of success for any prospective client in regard to any particular case and that each case stands on the individual merits of each case?

ABSTRACT: An attorney may list in an advertisement, specific amounts awarded by jury verdict if the following requirements are met:

  1. The statement must not violate the attorney’s duty of confidentiality under Rule 1.6.
  2. The statement must be factually accurate.
  3. The statement must be accompanied by a disclaimer that the list or itemization was not to infer the probability of success for any prospective client in regard to any particular case and that each case stands on the individual merits of each case. The disclaimer must be presented in the same manner and with the same emphasis as the statement to which it applies.

An attorney may list in an advertisement, specific amounts recovered by settlement if the following requirements are met:

  1. The statement must not violate the attorney’s duty of confidentiality under Rule 1.6.
  2. The statement must be factually accurate.
  3. The statement must be accompanied by a disclaimer that the list or itemization was not to infer the probability of success for any prospective client in regard to any particular case and that each case stands on the individual merits of each case. The disclaimer must also state that settlements are the result of private negotiations between the parties involved that may be affected by factors other than the legal merits of a particular case. The disclaimer must be presented in the same manner and with the same emphasis as the statement to which it applies.

OPINION

Rule 7.2 of the Oklahoma Rules of Professional Conduct provides in relevant part as follows:

Rule 7.2 Advertising

(a) Subject to the requirements of Rule 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.1

Rule 7.1 of the Oklahoma Rules of Professional Conduct provides in relevant part as
follows:

Rule 7.1. Communications Concerning A Lawyer’s Services

(a) 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 is:

(1) a communication which contains a material misrepresentation of fact or law, or omits information necessary to make the communication, considered as a whole, not materially misleading;

(2) a communication which is likely to create an unjustified expectation about the results the lawyer can achieve;

(3) ...; or

(4) a communication which compares the lawyer’s services with other lawyer’s services when the comparison cannot be factually substantiated.2

The Comment to Rule 7.1 provides as follows:

This rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them should be truthful. The prohibition in paragraph (a)(2) of statements that may create “unjustified expectations” would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.3

The United States Supreme Court’s opinions on lawyer advertising, beginning with Bates v. State Bar of Arizona,4 have made it clear that lawyers have a constitutional right to advertise, but that those advertisements may not be deceptive or misleading. Quoting Bates, the Court has said it “recognized that advertising by professionals poses special risks of deception... because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising, may be found quite inappropriate in legal advertising.” However, the Court has also stated “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warning[s] or disclaimer[s] might be appropriately required...in order to dissipate the possibility of consumer confusion or deception.”6

The Committee is of the view that a reasonable balance should be struck between a lawyer’s right to advertise, and protection of the public against false or misleading statements and unreasonable expectations. Such a balance seems to preclude both an absolute prohibition against statements concerning recoveries and an absolute unquestioning acceptance of them.

As a threshold matter, it is clear Rule 7.1(a)(1) requires statements in advertisements about results in particular cases must be factually accurate. This may, in particular cases, require information to be included that limits the import of the statements. For example, statements that are comparative in nature7 should indicate the date as of which these statements are true since there may have been events subsequent to the publication of the advertisement that would make the statements no longer true.

Although a statement in an advertisement may be factual, it may be misleading if it omits relevant facts and circumstances that permit a potential client to fully understand its significance. However, the potential for creating the unjustified expectations that are the focus of Rule 7.1(a)(2) can be reduced if such claims are accompanied by an appropriate disclaimer. Whether a particular disclaimer is sufficient will depend on its content and the manner in which it is displayed in the context of the advertisement.

It is the Committee’s view that a disclaimer must, at a minimum, (i) be displayed at least as prominently as the references to results themselves, and (ii) contain information that would lead a reasonable person to understand that the attorney is not claiming to be about to reproduce such results in a particular case. For example, a statement in a printed advertisement about the results in a particular case would not, in the Committee’s opinion, violate Rule 7.1(a) or (2) if accompanied by an equally prominent statement to the effect that each case is different and that prior results should not create an expectation about future results in an individual case. The Committee believes such a disclaimer would be “equally prominent” if the disclaimer is presented in the same manner and with the same emphasis as the statements themselves, and if its import is not obscured or minimized by other language or materials in the advertisement. For example, such a disclaimer in a printed advertisement should use the same font and at least the same size print as the statements themselves.

It is also the Committee’s opinion that statements concerning settlement must be much more stringently regulated than statements concerning verdicts. Verdicts are a matter of public record and are determined by the trier of fact. Settlements are not necessarily a matter of public record and are the result of private negotiations between the parties which may include a confidentiality agreement.

Finally, no statement may be made concerning either a verdict or a settlement if the statement violates the lawyer’s duty of confidentiality imposed by Rule 1.6.8

1.. 5 O.S. Rule 7.2 (OSCN 2001), Appendix 3-A: Oklahoma Rules of Professional Conduct.

2. 5 O.S. Rule 7.1 (OSCN 2001), Appendix 3-A: Oklahoma Rules of Professional Conduct.

3. 5 O.S. Rule 7.1 (OSCN 2001), Appendix 3-A: Oklahoma Rules of Professional Conduct, Comments.

4. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).

5. In re R.M.J., 455 U.S. 191, 200, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982).

6. Zauderer v. Ohio Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 2282 (1985).

7. For example, a statement that a verdict is the “largest award” or “largest verdict.”

8. 5 O.S. Rule 6 (OSCN 2001), Appendix 3-A: Oklahoma Rules of Professional Conduct.