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Board Issues New Formal Ethics Opinion Addressing False and Misleading Advertising

By Jesse D. Joseph

On September 17, 2004, the Board issued Formal Ethics Opinion 2004- F- 149 which provides guidance regarding what general types of claims or representations as included within attorney advertising are considered false and misleading in violation of RPC 7.1. Before issuing the actual opinion, the Board previously circulated two discussion drafts of the proposed opinion to all active attorneys in Tennessee since the fall of 2003 in prior editions of this publication, and received many helpful comments.

Pursuant to this new formal opinion, lawyers should not refer to prior results obtained on behalf of clients such as the amounts of damage awards, settlements, the nature of jury verdicts or other outcomes unless the advertisements also refer to the particular factual and legal circumstances underlying the claimed prior results. With respect to lawyers who utilize testimonials or endorsements in their advertising, from September 17, 2004 forward, simulated current or former clients should not appear in such ads unless lawyers include prominently displayed notice within the ads to the effect that the clients are simulations. In this same light, lawyers’ advertisements should not contain any endorsements or testimonials of their services by other individuals who are compensated for their participation in the advertisements, to include former or current clients, actors, public figures or celebrities.

Moreover, the opinion contains a listing of many subjective characterizations or descriptions of lawyers, the quality of legal services offered by lawyers or law firms, the level of fees charged, and comparisons of one lawyer’s or one firm’s quality with the quality of other lawyers’ services, which are to be avoided in advertisements where they cannot be factually substantiated. The Board found that these characterizations, and many others too numerous to list, are necessarily relative and ambiguous terms comparing lawyer services and are also inherently misleading in the absence of factual substantiation.

The Board recognized in the opinion that the Tennessee Supreme Court has prohibited lawyers in RPC 7.4(b)(d) from using the words "specialist," “specializes” or “certified” in lawyer advertising unless the lawyer has been certified as a specialist in a field of law by the Tennessee Commission on CLE and Specialization or by an organization which is recognized or accredited by said Commission. Otherwise, the Board concluded that lawyers are not authorized to use subjective descriptions or characterizations regarding their quality conferred by organizations unless the organizations have made inquiry into lawyers’ fitness and do not issue or confer such characterizations indiscriminately or for a price, citing the United States Supreme Court's decision in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990).

Lawyers are advised to obtain copies of this new Formal Opinion from the Board’s web site, www.tbpr.org, and are encouraged to submit their proposed advertising which may be affected by the requirements of this formal opinion to the Board substantially in advance of their proposed dissemination of same, to obtain advisory opinions regarding whether such advertisements are in compliance.


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