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Legal Marketing

Comment [2] to Rule 7.1 provides that ordinarily advertisements may not include information about results obtained, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts4 unless it also expressly and conspicuously states that each case is different and that the past record is no assurance that the lawyer will be successful in reaching a favorable result in any future case.Asimilar caveat applies to client endorsements or testimonials, which, of course, may only be provided by a bona fide pre-existing client of the lawyer and cannot be in exchange for anything.5 See Rule 7.2(c) (“A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may (1) pay the reasonable cost of

advertising or written communication permitted by this (1) The proper name of a government unit, whether or not identified with the type of unit...(2) The generic name of any form of government unit found in the same area where the firm practices, e.g., national, state, county, or municipal. (3) The name of or a reference to a college, university, or other institution of higher learning regardless of whether it has a law school.”);MSBACommittee on Ethics, Ethics Docket 2004-14 (2004) (Opining that a domain name that includes a descriptive phrase can be construed as an advertisement and requires the disclosure of the identity of the lawyer advertising their services).

4 The ABA in Formal Op. 10-457 (2010) citing North Carolina State Bar Formal Eth. Op. 2009- 6 (2009), stated that a firm may provide case summaries on its website, including accurate information about verdicts and settlements, as long as, with the consent of the client, it adds specific information about factual and legal circumstances of cases in conjunction with an appropriate disclaimer to preclude misleading prospective clients.

5 Lawyers should take special precaution with other forms of advertisement like LinkedIn, Yelp and where client and peer reviews and endorsements are encouraged. The South Carolina Bar, in an Ethics Advisory Opinion, opined that a lawyer is responsible for all internet content that he or she “claims” and is not responsible for statements made about the lawyer or the lawyer’s practice that are not placed on the internet by the lawyer or disseminated by the lawyer. The Bar advised that practitioners who become aware of internet content about them that may run afoul of the Rules should counsel the client or peer to remove or edit the content and that the attorney may be found to impliedly authorize the content. SC Ethics Advisory Op. 09-10 (2010).

18 Trial Reporter / Winter 2014

Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service . . .”) While it goes without saying that an attorney should not use fabricated endorsements or reviews,6 even a true statement of a recently won verdict or actual client testimonial could run afoul of Rule 7.1(b), which prohibits the use of a communication that “is likely to create an unjustified expectation about results the lawyer can achieve. . .” The Maryland State Bar Association Committee on Ethics has opined that client testimonials or reviews “could lead members of the public to erroneously conclude that similar results can be obtained for them.”7 Rule 7.2(c) also prohibits an attorney from using a letter of recommendation or other statement from a judge or other official unless he or she was a former client and the requirements of the Rule are met. Rule 7.1(c) states that a communication is false or

misleading if it compares the lawyer’s services with other lawyers’ services, “unless the comparison can be factually substantiated.” Because it is almost impossible for a lawyer to factually substantiate that she is “the best,” the

6 The New York Attorney General has, for the past year, investigated businesses including law firms that buy fake reviews of services that are posted on consumer websites like Yelp, Google, Citysearch and Yahoo. New York Times, September 22, 2013 “Give Yourself 5 Stars? Online, It Might Cost You” While it seems obvious that attorneys should not pay for false reviews or recommendations, the Rules would also seemingly prohibit an attorney from providing anything of value in exchange for Facebook “likes”, Twitter followers or LinkedIn endorsements. 7 See MSBA Committee on Ethics, Ethics Docket 92-09.

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