Tea Leaves About Testimonials
By: Arend J. Abel, Attorney
Despite what many Indiana lawyers believe, client testimonials are no longer absolutely barred by the Indiana Rules of Professional Conduct. They used to be, until January of 2011, when a set of amendments to the rules took effect. Until that time, former Rule 7.2(d)(3) expressly prohibited “use of any form of public communication which . . . contains a testimonial about or endorsement of a lawyer.” Testimonials aren’t even mentioned in the text of the current rules. Instead, the basic rule governing all lawyer advertising (and for that matter, other lawyer statements about legal services), is Rule 7.1, which provides simply that “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. 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 misleading.”
However, the change does not mean lawyers no longer need to worry about testimonials, as one Indiana lawyer recently learned when he was disbarred for, among other things, misleading testimonials. Of course, the opinion details much, much worse conduct in the case, including lying to and stealing from clients, a sure ticket out of the legal profession. But for most lawyers, who wouldn’t dream of doing such things, examination of the Supreme Court’s holding on the testimonials issue is worth considering.
While the current rules don’t say anything about testimonials, Comment (8) to Rule 7.1 addresses the issue. According to the comment, “In the absence of special circumstances that serve to protect the probable targets of a communication from being misled or deceived, a communication will violate Rule 7.1 if it . . . contains a representation, testimonial, or endorsement of a lawyer or other statement that, in light of all the circumstances, is intended or is likely to create an unjustified expectation about a lawyer or law firm or a person’s legal rights.” Comment (6) also puts into the “presumptively misleading” category “any reference to results obtained that may reasonably create an expectation of similar results in future matters.” The Supreme Court has never provided an analysis of what “special circumstances” might protect the “probable targets of the communication” or what sort of “circumstances” are enough to show a communication “is intended or is likely to create an unjustified expectation about a lawyer or law firm or a person’s legal rights.”
But the recent decision provides some clues. While the Court again did not provide an analysis of what makes a testimonial misleading, we do at least have some examples. Those examples are still up on the lawyer’s website as of this writing, though we can probably expect them to disappear in the near future. I created a PDF of them, so anyone looking for the examples after they disappear can email me.
For purposes of this article, the testimonials included the following statements that may have factored into the Court’s conclusion that the testimonials were misleading:
- [Lawyer] was able to get me an amicable divorce settlement that was extremely beneficial for my children & me, without messy court proceedings.
- [Lawyer] absolutely fought for everything that I wanted when it came to custody, visitation, child support, etc., and of course he won.
- If you’re looking for a winner, [Lawyer] is absolutely your man!
- …DO NOT CONTACT [Lawyer] Unless you are serious about WINNING!!!
- [Lawyer] got me the entire value of the car, all my hospital bills paid and a nice award in addition to that for my pain and suffering. And he did it in very, very quickly.
- Although I knew the odds were stacked against me, I told [Lawyer] I wanted custody of all of my children even though I worked a lot more than my wife. . . . I got custody of my children and I have [Lawyer] to thank for that.
- Despite [Lawyer] telling me these cases could take years because of medical malpractice system in Indiana, we received a six figure settlement in under 12 months.”
In addition, it probably didn’t help that the lawyer actually provided financial incentives to clients for posting favorable reviews on AVVO.
But what can we take from these examples? The lesson I draw is that all of those things that prudent lawyers tell clients are not predictable – the result, how long a case will take, how much it will cost, etc. – are the sorts of things that can get lawyers into trouble, at least in the absence of a disclaimer telling potential clients that the fact one of the lawyer’s clients was successful, or that a matter settled quickly, or that fees were low does not mean others will have similar results. Hopefully, the Supreme Court will clarify its analysis of when testimonials cross the line, but until then, we’ll just have to read the tea leaves created by decisions such as this one and Matter of Anonymous a/k/a the “Law Tigers” case, a 2014 decision that is less definitive because the conduct in question occurred during the time the old rules were in effect, as well as the new ones.