Can a North Carolina lawyer use client testimonials in advertising, and when does a testimonial need a disclaimer?

Plain-English summary

The opinion sets the conditions for using client testimonials in lawyer advertising, working from Rule 7.1, which bars false or misleading communications, and Rule 7.1(a)(2), which treats a communication likely to create an unjustified expectation about results as misleading. It distinguishes "soft" testimonials, which focus on shared values or characteristics of the lawyer's client service, from "hard" testimonials, which go to the outcome of a case. Soft endorsements (for example, that the lawyer was knowledgeable, patient, or professional) may be used without a disclaimer because they do not speak to results and do not create unjustified expectations.

Testimonials that refer generally to the outcome of a matter have the potential to mislead a prospective client into expecting the same result, so the opinion concludes they may be used only when accompanied by an appropriate and effective disclaimer. Drawing on Comment [3] to Rule 7.1 and the Committee's earlier approval of disclaimers for website case summaries in 2009 FEO 16, it allows general results testimonials with a cure but flatly prohibits any reference to a specific dollar amount, such as "my lawyer settled my case for $500,000."

The opinion specifies how the disclaimer must work, applying the dramatization requirements of Rule 7.1(b). The disclaimer may be oral or written, must appear or be spoken at the beginning and end of the communication, and must be conspicuous: a written disclaimer must match the testimonial's font size and color, and an oral disclaimer must match its volume and be spoken at an easily understood pace. The opinion gives medium-specific guidance for television, websites, and embedded video. On the second inquiry, it concludes the requirements do not differ by medium, but notes that some media cannot accommodate a compliant disclaimer; a roadside billboard, for instance, does not give a driver time to read one.

In practice

Under the North Carolina rule as it stood at the time of the opinion, conduct in which a lawyer publishes a client testimonial is permitted on a sliding scale: a testimonial limited to the lawyer's client service needs no disclaimer; a testimonial that refers generally to results is permitted only with an appropriate and effective disclaimer that satisfies Rule 7.1(b); and a testimonial stating a specific dollar amount is prohibited. Per the opinion, the disclaimer must be conspicuous and presented at the start and end of the communication, matching the testimonial in size, color, or volume.

Per the opinion, these requirements are the same across media, but the practical effect is that media unable to carry a compliant disclaimer, such as billboards, cannot be used for a results testimonial that would require one.

Common questions

Q: Can a lawyer put client testimonials in advertising in North Carolina?

A: Yes, within limits. Opinion #1 permits testimonials about the lawyer's client service without a disclaimer, permits general references to results only with an appropriate disclaimer, and prohibits references to a specific dollar amount.

Q: What is the difference between a "soft" and a "hard" testimonial?

A: The opinion explains that a "soft" testimonial focuses on shared values or characteristics of the lawyer's client service and does not address outcomes, while a "hard" testimonial goes to the outcome of a case and can create unjustified expectations; soft ones need no disclaimer, hard ones do.

Q: What does a compliant disclaimer require?

A: Per Rule 7.1(b), the disclaimer may be oral or written but must appear or be spoken at the beginning and end of the communication and be conspicuous, matching the testimonial's font size and color (written) or volume and pace (oral).

Q: Can client testimonials say how much money the lawyer recovered?

A: No. The opinion prohibits any reference to a specific dollar amount in a client testimonial.

Q: Do the rules change for TV, radio, billboards, or website videos?

A: Opinion #2 concludes the requirements do not differ by medium, but some media cannot accommodate a disclaimer that meets the requirements; the opinion gives a roadside billboard as an example.

Background and rules framework

The opinion applies North Carolina Rule 7.1 (communications concerning a lawyer's services, the analogue of Model Rule 7.1), including Rule 7.1(a)(2) on unjustified expectations and Rule 7.1(b) on disclaimers for dramatizations, and it relies on Comment [3] to Rule 7.1 on curing misleading impressions with a disclaimer. It builds on prior North Carolina authority, including 2007 FEO 4 (soft endorsements) and 2009 FEO 16 (disclaimers for website case summaries), and cites a Connecticut and a New York opinion reaching parallel conclusions.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NC Rule 7.1, 7.1(a)(2), 7.1(b) (false or misleading communications; unjustified expectations; disclaimers)

Other opinions cited:

• NC 2007 FEO 4: a lawyer may use "soft" client endorsements.
• NC 2009 FEO 16: disclaimers may cure potentially misleading website case summaries.
• Conn. Informal Op. 01-07 (2001): examples of permissible service-focused endorsements.
• NY State Bar Op. 771 (2003): disclaimer rationale applied to client testimonials.

See also

• NC State Bar 2012 FEO 8: Online Recommendations
• CA COPRAC Op. 2012-186: Social Media as Advertising
• CA COPRAC Op. 2019-199: Online Directory Profiles
• ABA Formal Op. 10-457: Lawyer Websites

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2012-formal-ethics-opinion-1/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Are testimonials that merely imply positive results but do not state specific results considered "soft" endorsements under 2007 FEO 4? Some examples are, "the attorney did a great job for me," "I was pleased with the outcome of my case," or "I can get my life back on track now."

Are testimonials that do not include any specific monetary amounts but do indicate a favorable result considered soft endorsements? Some examples of these types of testimonials are, "He was able to get my case settled to my satisfaction," "the charges against me were dropped/dismissed," "my medical bills were covered/paid," or "I was able to get Social Security/workers’ compensation benefits."

If these kinds of testimonials are not considered soft endorsements, are they still permissible in legal advertising? Do they require disclaimer language similar to language required by 2009 FEO 16?

Opinion #1:

Testimonials that discuss characteristics of a lawyer’s client service may be used in lawyer advertising without the use of a disclaimer. Testimonials that refer generally to results may be used so long as the testimonial is accompanied by an appropriate disclaimer. The reference to specific dollar amounts in client testimonials is prohibited.

Rule 7.1 provides that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication that is likely to create an unjustified expectation about results the lawyer can achieve is misleading. Rule 7.1(a)(2). Depending upon their content, client testimonials have the potential to create unjustified expectations.

A distinction can be drawn between "hard" and "soft" testimonials. A "hard" testimonial goes to the outcome of a case or matter. A "soft" testimonial does not go to the outcome of the case or matter, but rather focuses on shared values or characteristics of the lawyer’s client service.

The Ethics Committee has concluded that a lawyer may incorporate "soft" client endorsements in their advertising materials without violating Rule 7.1. See 2007 FEO 4. A lawyer may use client testimonials stating that a lawyer handled a case efficiently, always acted in a professional manner, was considerate of the client’s particular needs, etc. Examples of other soft endorsements include:

• "The lawyer was very knowledgeable."

• "The service provided by the law firm was excellent."

• "The attorney was very patient."

• "We were very impressed and pleased with the commitment to service."

• "My experience was one of courtesy and I found myself at ease at all times."

See Conn. Informal Op. 01-07 (2001). These statements are permissible under Rule 7.1 because they do not refer to the outcome of a particular matter and do not create unjustified expectations about the results the lawyer can achieve in any case.

"Hard" testimonials, or testimonials that indicate a particular favorable result in a case, have the potential to mislead a potential client to form an unjustified expectation that the same results can be obtained on his or her behalf. Examples of such statements include:

• "The charges against me were dropped/dismissed."

• "My medical bills were covered/paid."

• "I was able to get Social Security/workers' compensation benefits."

• "My lawyer settled my case for $500,000."

Comment [3] to Rule 7.1 states that the creation of unjustified expectations may be prevented by the use of an appropriate disclaimer. In that regard, the Ethics Committee previously approved the use of disclaimers to cure the potentially misleading nature of case summary sections on a law firm’s website. See 2009 FEO 16. The New York State Bar has applied the same rationale to client testimonials. See NY State Bar Assoc. Comm. on Prof'l Ethics, Op. 771 (2003).

We similarly conclude that a lawyer may include in marketing materials client testimonials that refer generally to the outcome of a specific matter, so long as the testimonials are accompanied by an appropriate and effective disclaimer. The reference to specific dollar amounts in client testimonials is prohibited.

The disclaimer must comply with the requirements set out in Rule 7.1(b) pertaining to communications containing dramatizations. Pursuant to Rule 7.1(b), the disclaimer may be oral or written. The disclaimer must appear or be spoken at the beginning and the end of the communication and must be conspicuous. For example, any written disclaimer accompanying a written testimonial must be printed in the same font size and color as the font size and color used for the testimonial. Any oral disclaimer accompanying an oral testimonial must be spoken at the same volume as the testimonial and must be spoken at a conversational speed that is easily understood.

A written disclaimer accompanying an oral testimonial on a television advertisement must appear on the screen in a conspicuous font size and color and must appear for a sufficient amount of time that a lawyer can reasonably conclude that a reasonably competent individual viewing the advertisement has the time to read the disclaimer.

For video testimonials embedded in a law firm website, the video may contain the written or oral disclaimer as described above. Alternatively, the webpage containing the link to the testimonial video may display a conspicuous written disclaimer directly above or below the link to the video containing the testimonial.

Inquiry #2:

Are the requirements under the Rules of Professional Conduct for client testimonials in television, radio advertisements, billboards, or video clips on websites different than the requirements for testimonials in written or printed materials?

Opinion #2:

No. However, certain mediums would not allow for a disclaimer that would meet the requirements set out above. For example, it is not reasonable to expect a driver to have time to read a disclaimer on a roadside billboard.