BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
DISCUSSION DRAFT ONLY
Guidance is provided regarding what general types of claims or
representations as included within attorney advertising are false or misleading
in violation of Tennessee Rule of Professional Conduct 7.1.
Considerable confusion currently exists among members of the bar of this state
regarding what types of claims or representations may be appropriately included
within lawyer advertising without violating the prohibitions against false or
misleading advertising as contained in Tennessee Rule of Professional Conduct
(RPC) 7.1. This Opinion is to help clarify this issue and to interpret RPC 7.1
for the benefit of the bar in Tennessee.
RPC 7.1, Communications Concerning a Lawyer's Services, provides as follows:
A lawyer shall not make a false or misleading communication about the lawyer,
the lawyer’s services, the lawyer’s charges for fees or costs, or the law as
relates to the services the lawyer will provide. A communication is false or
misleading if it:
||contains a material misrepresentation of fact or law or omits a fact
necessary to make the statement considered as a whole not materially
||is likely to create an unjustified expectation about results the lawyer can
achieve or states or implies that the lawyer can achieve results by means that
violate the Rules of Professional Conduct or other law; or
||compares the lawyer’s services or fees with other lawyers’ services or fees,
unless the comparison can be factually substantiated.
Comment to RPC 7.1 provides, in pertinent part, as follows:
The prohibition in paragraph (b) of statements that may create an “unjustified
expectation” would ordinarily preclude advertising about results obtained on
behalf of a client, such as the amount of a damage award or a lawyer’s record
in obtaining favorable verdicts and advertisements containing client
Rule 7.2(c) provides as follows:
(c) A lawyer shall not give anything of value to a person for recommending or
publicizing the lawyer’s services except that a lawyer may pay for the
||the reasonable costs of advertisements or other communications permitted by
this Rule, Rule 7.3, or Rule 7.5;
||the usual charges of a registered intermediary organization as permitted by
||a sponsorship fee or a contribution to a charitable or other non-profit
organization in return for which the lawyer will be given publicity as a
||a law practice in accordance with Rule 1.17.
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y.,
447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341, (1980), the U. S. Supreme Court
held that a four-part test of intermediate scrutiny must be employed to
determine whether commercial speech is protected by the First Amendment.
Commercial speech is accorded qualified First Amendment protection only if it
is not false or misleading. With respect to commercial speech which is not
actually or inherently false or misleading, a state may reasonably regulate
potentially misleading commercial speech where the harms which the state seeks
to alleviate are real, and where the proposed regulation “directly and
materially advances the state's interest in preventing the specific type of
deception at hand.”
Douglas v. State, 921 S.W.2d 180, 184 (Tenn. 1996), quoting
Edenfield v. Fane, 507 U.S. 761, 770-771, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543
(1993). “The state may completely ban commercialized expression that is either
actually or inherently misleading without further justification.” Id. In
Douglas, the Supreme Court of Tennessee found constitutional
the Dental Board's requirement that general dentists who chose to advertise in
specialty branches indicate that the services were being performed by general
dentists. With respect to lawyer advertising, the Supreme Court of Tennessee
concluded that the specialty certification disclaimer requirements of DR
2-101(C) of the former Code of Professional Responsibility for attorneys passed
Walker v. Board of Professional Responsibility, 38 S.W.3d 540
(Tenn. 2001). Although RPC 7.4 changed the specialty certification disclaimer
requirements of DR 2- 101(C), these requirements were not found to be
The U. S. Supreme Court has uniformly held that, “false, deceptive or
misleading commercial speech may be banned.”
Ibanez v. Florida Dept. of Bus. & Prof'l. Regulation, 512 U.S.
136, 114 S.Ct. 2084, 2088, 129 L.Ed.2d 118 (1994). The U. S. Supreme Court held
that “… [t]he government may freely regulate commercial speech that concerns
unlawful activity or is misleading”.
Florida Bar v. Went for It, 515 U.S. 618, 115 S.Ct. 2371, 132
L.Ed.2d 541 (1995). Likewise, inherently misleading statements may be banned.
In Re R.M.J., 455 U.S. 191, 102 S.Ct, 929, 71 L.Ed. 64 (1982).
Bates v. State Bar of Arizona, 433 U.S. 350, 383-84, 97 S.Ct.
2691, 53 L.Ed.2d 810 (1977), the court observed that:
claims as to quality of services...are not susceptible of measurement or
verification; accordingly, such claims may be so likely to be misleading as to
warrant restriction. The lack of any objectively verifiable data which can
support the following claims which are the subject of this Opinion warrant
restrictions as the U. S. Supreme Court has observed.
Accordingly, the claims or representations contained in lawyer advertising
which are the subject of this Opinion are accorded only qualified First
Amendment protection. Communications violative of RPC 7.1(a), (b), and
(c)—those communications which contain material misrepresentations of fact or
law, those which are likely to create an unjustified expectation about results
the lawyer can achieve, or those which compare a lawyer's services or fees with
other lawyers' services or fees in a fashion which cannot be factually
substantiated—are potentially false or misleading and, accordingly, are
prohibited where the additional disclosures as provided below are not included.
Consistent with the above Rules, Comment, and the cited case law, lawyers’
advertisements in Tennessee shall not refer to prior successes or results
obtained on behalf of clients, such as the amount of damage awards,
settlements, the nature of jury verdicts, or other outcomes unless the
advertisements refer to the specific factual and legal circumstances underlying
the claimed prior success or prior result.
Further, lawyers’ advertisements containing testimonials or endorsements by a
current or former client must comply with RPC 7.1, particularly with regard to
avoiding creating an unjustified expectation about the results the lawyer may
obtain and/or comparing the lawyer’s services and fees. Lawyers’ advertisements
shall not contain any testimonial or endorsement of Tennessee lawyers by
simulated current or former clients unless notice is provided in a prominent
fashion that such clients are simulations. Such advertisements by simulated
clients are false or misleading in the absence of such notice. Lawyers’
advertising containing any testimonials or endorsements by individuals,
including current or former clients, actors, public figures, or celebrities who
are compensated in any manner for their participation in the advertisement are
prohibited. RPC 7.2(c).
Further, lawyers’ advertisements shall not contain subjective, particularly
self-imposed, characterizations or descriptions of the lawyer, the quality of
legal services offered by the lawyer, the level of fees charged, or any
comparison of one lawyer’s or law firm’s quality with the quality of other
lawyers’ services which cannot be factually substantiated. Thus, in the absence
of factual substantiation, a lawyer shall not advertise that he or she (or his
or her law firm) is “No. 1”, “the best”, “one of the best”, “better”, “top”,
“excellent”, “qualified”, “highly qualified”, “experienced”, “most
experienced”, “reputable”, “efficient”, “preferred”, or that the lawyer’s or
law fir’'s fees are the lowest. Such terms may be likely to create unjustified
expectations about results to be obtained by the lawyer. These
characterizations (and many others too numerous to list) are necessarily
relative and ambiguous terms comparing lawyer services and inherently
misleading in the absence of factual substantiation. See,
Spencer v. The Honorable Justices of The Supreme Court of Pennsylvania,
579 F.Supp. 880, 885-888 (E.D. Pa. 1984) (reiterating the principle that there
is no constitutional protection for false, misleading, or deceptive advertising
and finding that lawyer's use of terms such as “experienced”, “expert”, “highly
qualified”, or “competent” are difficult for a layman to confirm, measure, or
verify; court held that the state's prohibition of the use of terms which
subjectively evaluate a lawyer’s credentials or the quality of his or her
services directly advances the state’s substantial interest in protecting
consumers from misleading claims, and is not more extensive that necessary to
serve that interest); and
Medina County Bar Association v. Grieselhuber, 678 N.E.2d 535
(Ohio 1997) (Ohio Supreme Court upheld sanction of lawyer who used the words
“We Do It Well” in advertisement as claim which was not verifiable in violation
of Ohio’s DR 2- 101(A)(4)). RPC 7.4(b)(d) permit the use of “specialist”,
“specializes”, and “certified” as provided in the rule as long as a lawyer’s
use of such terms is objectively in accordance with the rule. The use of
subjective characterizations or descriptions conferred by organizations may be
permissible if the organization has made inquiry into the lawyer’s fitness and
does not issue or confer such characterizations or descriptions
indiscriminately or for a price.
Peel v. Attorney Registration and Disciplinary Commission of Illinois,
496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990);
Mason v. Florida Bar, 208 F.3d 952 (11th Cir. 2000).
Consistent with Chapter 7 of the Rules of Professional Conduct, this Ethics
Opinion applies only to communications by lawyers which propose commercial
transactions and has no application to a lawyer’s non-commercial speech.
Moreover, this Opinion can only address appropriate conduct by lawyers under
the Tennessee Rules of Professional Conduct; it cannot and does not address
compliance with any other rule or law applicable to advertisements, such as the
Tennessee Consumer Protection Act.
Lawyers are encouraged to submit to the Board copies of their proposed
advertising substantially in advance of their contemplated dissemination of
same to obtain an advisory opinion concerning whether the proposed
advertisements comply with the provisions of the Rules of Professional Conduct
and with this Opinion.
This ______ day of _____________, 2004.
1Subject to the requirements of
Rules 7.1, 7.2, and 7.3,
||A lawyer may communicate the fact that the lawyer does or does not practice
in particular fields of law.
||Except as permitted by paragraphs (c) and (d), a lawyer shall not state that
the lawyer is a specialist, specializes, or is certified or recognized as a
specialist in a particular field of law.
||A lawyer who has been certified as a specialist in a field of law by the
Tennessee Commission on Continuing Legal Education and Specialization may state
that the lawyer “is certified as a specialist in [field of law] by the
Tennessee Commission on C.L.E. and Specialization.” A lawyer so certified may
also state that the lawyer is certified as a specialist in that field of law by
an organization recognized or accredited by the Tennessee Commission on
Continuing Legal Education and Specialization as complying with its
requirements, provided the statement is made in the following format: “[Lawyer]
is certified as a specialist in [field of law] by [organization].”
DISCUSSION DRAFT ONLY