Daily Court Reporter - Guidelines issued for lawyers' use of client testimonials
Guidelines issued for lawyers' use of client testimonials
ANNIE YAMSON, Daily Reporter Staff Writer
An advisory opinion recently released by the Ohio Board of Professional Conduct addressed the use of client testimonials in advertisements for legal services.
The new opinion withdrew two of the board's prior opinions and assessed whether a lawyer may use client testimonials to promote his or her services under the current Rules of Professional Conduct 1.6, 1.9, 7.1 and 7.2.
"Client testimonials are commonly used by lawyers in advertisements to convey information about the lawyer or the lawyer's services in an effort to attract new clients," the opinion states. "Lawyers have a First Amendment right to communicate truthful information about their services that is not false or misleading."
In general, attorneys are allowed to use client testimonials in promotional materials, but the board advised lawyers to make several considerations before utilizing a client testimonial in an ad in order to ensure that the communication will not be construed as false, misleading or nonverifiable.
"A testimonial should consist of truthful remarks from an actual client, not those prepared by the lawyer or others," the board wrote.
Testimonials such as "I was pleased with the representation I received" and "The lawyer listened to my concerns" are examples of acceptable ad content, according to the board, because the statements do not create "unjustified expectations."
Other statements that address the lawyer's skills, reputation or record are not allowed. For instance, "My lawyer never settles a case he knows he can win," or "My lawyer is the best criminal defense lawyer in Columbus," are not allowed because those statements cannot be verified.
"More importantly, a client testimonial in an advertisement can be misleading when it leads a reasonable person to form an unjustified expectation that the same results can be obtained for other clients in similar matters," the board wrote. "Client testimonials containing dollar amounts of settlements or verdicts are particularly susceptible of generating unjustified expectations, even though the statements can sometimes be verified and accompanied by a disclaimer."
The board discouraged lawyers from including dollar amounts in ad content, even if the statement comes with a disclaimer. But it did acknowledge that general favorable results included in a testimonial may be accompanied by a disclaimer that could prevent misleading communication.
Statements such as "I was able to return to work after my workplace injury" or "After my DUI charge, I was able to keep my driver's license" can include a disclaimer that prior results do not guarantee a similar outcomes in all cases or a statement that "individual results may vary."
"A disclaimer in a print or video medium should be clear, conspicuous, and not minimized or obscured," the board wrote. "A written disclaimer should be placed in the same size font as the written testimonial."
In keeping with Rules of Professional Conduct 1.6 and 1.9, the board also advised attorneys to never reveal information relating to the representation of client unless the client gives informed consent in writing.
Under Rule 7.2, lawyers are also prohibited from providing anything of value to a current or former client in exchange for recommending the lawyer's services through a testimonial.
The board further recommended that lawyers monitor client reviews and comments left on websites like online legal directories or social media.
"A lawyer with an online presence, who is able to control the content of his or her online profile, should periodically monitor the content of the profile to ensure the communications about the lawyer or the lawyer's services comply with Rule 7.1," the board wrote. "False, misleading, or nonverified testimonials in the form of client comments or endorsements should be removed by the lawyer when he or she has control over the content of the profile."
The board noted that attorneys who do not have control over a website where comments are posted should "exercise caution" when responding to any reviews, negative or otherwise.
The opinion is cited as Advisory Opinion 2016-08.
Date Published: November 7, 2016