Guidance From The Adjective Police: The Do’s And Dont's of Attorney Advertising In Connecticut (Co-author)
Connecticut Law Tribune
July 22, 2013
Regulatory Review of Attorney Advertising in Connecticut
Since July 1, 2007, the Statewide Grievance Committee has had two principal ways to address concerns about attorney advertising. First, under Practice Book Section 2-28A, Connecticut attorneys must file with the Committee a copy of each “written or recorded communication” used in advertising legal services to the public (there are some exceptions to the filing requirement). This means that for ads and promotional materials for a law firm, the firm needs to designate one of its attorneys whose individual juris number must accompany the filing of each firm ad.
The Office of Statewide Bar Counsel, in turn, reviews randomly selected advertising submissions for compliance with the Rules of Professional Conduct. If Bar Counsel concludes that the reviewed advertising is out of compliance with the Rules, the attorney responsible for the ad has the opportunity to work out a resolution with Bar Counsel. If the problem is resolved to Bar Counsel’s satisfaction, usually accomplished by making the requested changes to the ad under review, the attorney in question will not be subject to disciplinary charges for ad content or format deemed to have violated the restrictions on attorney advertising in the Rules.
Second, under Practice Book Section 2-28B, attorneys may submit to the Committee – in advance of publication – contemplated advertising communications and request an advisory opinion on whether the proposed ad complies with the Rules. In one of its earliest advisory opinions, the Committee reviewed the body of First Amendment law defining the limits on regulation of attorney advertising and laid out the framework that underlies its advisory opinions. Attorney advertising that is “truthful and not misleading . . . cannot be regulated or prohibited, except where it harms the public.” By contrast, attorney advertising that is “truthful but potentially misleading . . . can be regulated, generally with a disclaimer.” Under Rule 7.1, a third category – advertising that is “actually or inherently misleading, false or deceptive” – is prohibited outright.
Advertising Advisory Opinions in Connecticut
In the six years since the adoption of Section 2-28B, three-member Reviewing Committees have issued over 60 advertising advisory opinions. The advisory opinions are public, and the Committee posts them on its website – unlike the results of random reviews of attorney advertising, which remain private. Certain themes have emerged in the advisory opinions, and this article offers a brief summary of some of the recurring issues the regulators of attorney advertising face.
Prior Results, Unjustified Expectations and Disclaimers
In a number of advisory opinions, the Committee recommends the use of disclaimers to bring advertising that is otherwise noncompliant with the Rules into compliance. For instance, reviewing advertising that touted a lawyer’s past victories in obtaining property tax reductions saving millions of dollars, the Committee concluded that the statement about past results “creates an unjustified expectation that the same results could be obtained for other clients,” and was therefore misleading. In another opinion, the Committee concluded that the advertising tagline “It’s all about success, winning. It’s all about you and what you deserve” was misleading because it suggested that the firm won every case regardless of the merits.
In both cases, the Committee advised that the misleading statement could be corrected with a disclaimer “explaining that results are based on the merits of the case and that success in the past does not guarantee success in the future.” Similarly, the Committee advised a firm that characterized its successes as “extensive” that an appropriate disclaimer would bring the advertisement into compliance with the Rule prohibiting misleading statements.
Aggregating several case results under the tagline “We get results” is less likely to be considered misleading where the advertising brochure was aimed at other attorneys. The Committee has advised that where such boasts are aimed at consumers, they should be accompanied by a disclaimer such as the following: “Each case has unique facts and circumstances, similar or better results cannot be guaranteed.” The Committee also has approved this disclaimer language added to a page detailing a firm’s successes: “The legal developments or accomplishments described in these materials should not be assumed an indication of future results.”
By contrast, the Committee deemed a law firm’s use of the phone number 1-800-WIN-WIN-1 to be misleading in a way that could not be remedied with any form of disclaimer because “[t]here is no disclaimer that could be given sufficient weight to disclaim the expectations created by this phone number.”
Prior Experience, Comparisons to Other Attorneys and “Self-Laudation”
The Committee concluded that a law firm’s statement that one of its lawyers “worked closely with the City’s various boards and municipal officials” not only violated Rule 7.1 by creating an unjustified expectation, it also violated Rule 8.4(5) “because it implies an ability to influence these government agencies and officials.” Coupling a factual statement about a firm’s experience as town attorneys with a statement that such experience gave the firm’s attorneys a “unique perspective” was similarly deemed inappropriate.
It would, however, be permissible “to recite a lawyer’s professional experience by indicating what boards the lawyer has served on.” A lawyer also may refer to a prior judicial clerkship: “A lawyer has the right to mention verifiable facts from which consumers can infer a distinction of quality when those facts are true, so long as the lawyer does not draw conclusions as to his or her own quality or insider knowledge in comparison to other lawyers.” In the same opinion, the Committee also approved the lawyers’ description of themselves as “practical problem solvers and effective advocates” because the description did not “rise to the level of claiming superiority or insider knowledge.”
As a rule, the Committee takes the position that any description of a lawyer or law firm’s services that cannot be substantiated with objectively verifiable facts is inherently misleading. References to a law firm’s “superb results for personal injury clients” and “the highest degree of legal skill, energy & personal attention” fall into this category. The Committee views such superlatives as amounting to opinions, rather than facts, and “[t]here is no way to verify the firm’s opinion of itself.” The Committee also has concluded that in the absence of factual substantiation, a law firm could not properly state that “[o]ur success rate . . . is well known.”
The Committee has similarly disapproved advertising stating that a firm has “served its clients with excellence, integrity and dedication”; that a firm “has provided clients with outstanding services”; that “the [firm] will prove to be of invaluable assistance”; or that “no one is on top of the current trends more than our real estate team.” According to the Committee, such language amounts to “unsubstantiated comparisons of the attorneys’ services to those of other attorneys. . . . Such inherently misleading statements cannot be cured by a disclaimer and must be removed.” The phrases “exceptional capabilities” and “tradition of excellence,” or characterizing a firm’s services as “unique” also have meet with the Committee’s disapproval. Where a firm’s recorded telephone message for clients on hold included the statement that the firm had “”a unique perspective regarding representing our land use clients,” the Committee concluded that the recorded message amounted to a misleading statement “because there is no reasonable factual foundation to substantiate the claim.”
On the other hand, “self-laudatory” language that might be misleading if presented as established fact will not violate the policy against “unsubstantiated comparisons” with other firms if it is merely aspirational. For example, the Committee blessed law firm messages announcing that a firm’s “mission” is “to provide our clients with the best legal strategy”; that “we have strived to provide the absolute highest quality of legal services”; and that the lawyers “strive for excellence.” In such cases, the “context of the statements prevents it from being misleading. . . . If the statement promised or asserted that the firm’s services are the best, the statement would violate Rule 7.1.”
Reviewing a firm’s use of “Pulling Together. Succeeding Together.” as an advertising tagline, the Committee concluded that the phrase “succeeding together” was “general in nature and sufficiently ambiguous, as to whether it is a goal or a promise of services delivered,” and so did not run afoul of the Rule against misleading statements. [Note: The tagline is that of the authors’ own firm]. Advertising also may include client testimonials, so long as “the testimonials are from real clients describing their actual experience or opinion of the attorney.”
All Advertising Must Include the Name of a Connecticut Admitted Attorney “Responsible for Its Content”
A surprisingly common omission in ads the Committee reviews is the failure to include the name of at least one Connecticut admitted attorney “responsible for” the ad’s content, a specific requirement under Rule 7.2(d). The Committee criticized a proposed television ad because it did not “contain the required display of the ‘name, address and telephone number of the lawyer admitted in Connecticut’ for at least fifteen seconds.” And while the Committee approves the use of trade names for law firms – so long as they are not misleading – it has faulted a firm for using a billboard advertisement promoting the firm under its trade name without including the name of a Connecticut admitted attorney. The obligation to include the name of a responsible attorney is satisfied if the ad displays “Law Offices of” before the responsible attorney’s name.
As of January 1, 2013, new subsection (j) of Rule 7.2 provides that an attorney may participate in “an internet-based client to lawyer matching service.” If, however, the internet service in question gives the contracting attorney an “exclusive” listing for a “particular practice area in a particular geographical region” the attorney must ensure that the service complies with the requirement of identifying at least one Connecticut admitted attorney responsible for the content of the listing.
Fields of Practice
In approving the use of practice areas in trade names, phone numbers and internet domain names, the Committee has recognized that the use of such names is for the public’s convenience in searching for appropriate representation, and the “interest in providing public information is therefore a preeminent concern and prevails unless an attorney communication violates a Rule of Professional Conduct.” Thus, in a 2010 advisory opinion, the Committee approved the use of the trade name “Lady DUI” as part of an internet domain name and phone number.
As of 2009, the Commentary to Rule 7.4 permits a lawyer to “indicate that the lawyer ‘concentrates in,’ ‘focuses on,’ or that the practice is ‘limited to’ particular fields of practice.” But the Rule still prohibits the use of any term suggesting that the lawyer is “a specialist in a particular field” unless the lawyer is certified in that field. As of now, Connecticut recognizes certification in only very few fields: workers compensation, bankruptcy, child welfare, civil trial practice and criminal trial practice.
So “expert,” “expertise,” and “specialist” continue to be on the list of forbidden terms for most lawyers, and Connecticut’s regulators are, by their own admission, “rigid” about enforcing this prohibition. Even if a lawyer has 30 years of practice in an area such as family law, for which the Connecticut courts currently have no recognized certification process, the lawyer may not use the forbidden terms “specialist” or “expert,” or variations of those words, in referring to his or her depth of experience.
Random Reviews of Attorney Advertising
Assistant Bar Counsel Kerry O'Connell, who oversees the random reviews of attorney advertising, reports that the reviews generally reflect concerns similar to those that the Committee addresses in its advisory opinions. She identifies the most common subjects for Committee-requested revisions to attorney ads as: the absence of disclaimers connected to attorney claims about prior results; the use of superlatives; assertion of claims that cannot be objectively verified; and inappropriate references to practice area “expertise” or specialization.
Marcy Tench Stovall and David P. Atkins are attorneys in the Professional Liability Practice Group of Pullman & Comley LLC. Both concentrate on the representation of lawyers and law firms in defending legal malpractice and disciplinary (grievance) complaints. Reprinted with permission from the July 22 issue of Connecticut Law Tribune. ©2013 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved