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Legal Marketing


harbor. In the Matter of Vaughn Arthur Wamsley, 725 N.E.2d 75 (Ind. 2000) provides a good example of an advertisement that violates Rule 7.1. In Wamsley, the attorney’s advertisement indicated that the attorney could achieve the “best possible settlement . . . [in] the least amount of time,” that his “reputation, experience and integrity result in most of our cases being settled without filing a complaint or lengthy trial,” and “I have helped thousands who have been seriously hurt or lost a loved one.” Wamsley, 725 N.E.2d at 76. The court held “[b]y claiming that he could obtain the best possible settlement in the least amount of time, the respondent likely created an unjustified expectation of such a result in any case the respondent agreed to handle. . . . As such, the statement is misleading, deceptive, self- laudatory, and unfair. . .” Id., at 77. “Finally, by stating that he has helped thousands who have been seriously hurt or who have lost a loved one, the respondent offered statistical data or other information based on past performance and an implicit prediction of future success, statements that when appearing in lawyer advertising are prohibited...”. Similarly, in Farrin v. Thigpen, 173 F. Supp.2d 427,


440 (M.D. N.C. 2001), and In the Matter of James Keller; In the Matter of Jack Keller, 792 N.E.2d 865, 868 (Ind.


2003) the courts found that television advertisements that stated or implied that the attorneys’ reputations in the insurance industry were such that insurance carriers would settle cases with them because of their reluctance to try cases against the attorneys. This likely created an unjustified expectation about results the attorneys could achieve in the future. The topic of whether a lawyer’s advertisement


constitutes an impermissible comparison of the lawyer’s services with other lawyers’ services has also been the subject of a substantial amount of litigation. MLRPC 7.1(c) prohibits a communication that “compares the lawyer’s services with other lawyer’s services, unless the comparison can be factually substantiated.” A lawyer advertisement with “direct claims of expertise that are not . . . factually verifiable . . . may be prohibited or restricted as unduly misleading,” including “the description of [a] firm as “the experts’ in certain enumerated areas of practice [as this] was an implicit comparison with other lawyers’ services that was not factually verifiable in violation of Rule 7.1(c).” In re PRB Docek No. 2002.093, 868 A.2d 709, 712 (Vt. 2005). See, also, Spencer v. Honorable Justices of Sup. Ct. of Pa., 579 F. Supp. 880, 887 (E.D. Pa. 1984) (rejecting constitutional challenge to attorney advertising regulation since “claims using such terms as “experienced,’ “expert,’ “highly qualified,’ or “competent’ are difficult for a layperson to confirm, measure or verify); Office of Disciplinary Counsel v. Furth, 754 N.E.2d 219, 225 (Ohio 2001) (attorney’s website claiming that attorney was a “passionate and aggressive” advocate violated rule against unverifiable self-laudatory statements); Medina County Bar Ass’n v. Grieselhuber, 678 N.E.2d 535, 537 (Ohio 1997) (lawyer’s telephone book advertisement proclaiming “We Do it Well” violated rule against communications regarding the attorney’s qualifications that could not be verified). One of the most highly publicized cases on the topic


of lawyers’ “comparative” advertisements is In re Opinion 39 of the Committee on Attorney Advertising, 961 A.2d 722 (N.J. 2008). In this case, New Jersey’s “Supreme Court Committee on Attorney Advertising . . . issued Opinion 39, which concluded that “advertisements describing attorneys as “Super Lawyers,’ “Best Lawyers in America,’ or similar comparative titles, violate the prohibition against advertisements that are inherently comparative in nature, RPC 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2).” In re Opinion 39, 961 A.2d at 724. Fortunately, after receiving an extensive report from a retired Appellate Division judge who was appointed as


28 Trial Reporter / Winter 2014


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