OPINION NO. 09-01
Issued February 23, 2009
1. Issue: What are the ethical limits for the use of testimonials, dramatizations or fictionalized representations in lawyers’ advertising on television or web sites?
2. Opinion: Advertising may not be “false or misleading”. Testimonials or dramatizations may be false or misleading is there is substantial likelihood that a reasonable person will reach a conclusion for which there is no factual foundation or will form an unjustified expectation. The inclusion of appropriate disclaimer or qualifying language may prevent testimonials or dramatizations from being false or misleading.
3. Background: As this Committee explained in Opinion No. 00-02, “The U.S. Supreme Court has made it clear that public communication concerning a lawyer’s services (including any form of advertising) is commercial speech, enjoys First Amendment protection, and can be regulated only to further substantial state interests, and then only in the least restrictive manner possible. The cardinal rule concerning all public communication about a lawyer and her services is that the communication not be false or misleading.” 1
4. Since we issued our most recent opinion regarding advertising, Rule 7.1 of the Utah Rules of Professional Conduct (and of the Model Rules) has been amended to include only the simple paragraph set forth below. The amendments deleted subsections (b) and (c) which had specified that a communication was “false or misleading” if it “is likely to create an unjustified expectation about results the lawyer can achieve” or if “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.” Instead these issues were dealt with less rigidly in the Comments to Rule 7.1. The ABA Ethics 2000 Commission that recommended these amendments to Rule 7.1 explained its rationale:
The Commission recommends deletion of this specification of a “misleading” communication because it is overly broad and can be interpreted to prohibit communications that are not substantially likely to lead a reasonable person to form a specific and unwarranted conclusion about the lawyer or the lawyer’s services. . . . . The Commission also believes that a prohibition of all comparisons that cannot be factually substantiated is unduly broad. Whether such comparisons are misleading should be assessed on a case-by-case basis in terms of whether the particular comparison is substantially likely to mislead a reasonable person to believe that the comparison can be substantiated. . . . . 2
5. While some state regulators retained the old language and other regulators adopted detailed categories of statements that are “false or misleading,” a leading commentator and original draftsperson of the Model Rules recommends against such an approach:
In the end, the best course for state regulators is to adopt the current simple and direct language of Model Rule 7.1 and issue interpretive guidelines . . . .Attempts to impose more burdensome and categorical prohibitions are likely to lead to little but constitutional litigation. GEOFFREY HAZARD, W. WILLIAM HODES, AND PETER JARVIS, THE LAW OF LAWYERING (3rd) §55.3
6. Analysis: We issue the following “interpretive guidelines” relying upon suggestions of commentators, other state’s suggestions and case law. We also suggest that Utah lawyers be aware of Utah’s Truth in Advertising Statute, Utah Code Ann. §13-11a-1 et. seq; Utah’s Consumer Sales Practices Act, §13-11-1 et. seq. which prohibit deceptive acts or practices.