Can a lawyer give clients a written guarantee of a permanent visa with a money-back promise, and advertise it?

Plain-English summary

An attorney who represented clients applying to the Immigration and Naturalization Service for permanent visas said that in some cases approval was not discretionary but had to be granted if certain conditions were met. He asked whether he could give clients a form titled "Guarantee" that promised to obtain a permanent visa, based on the client's representations that he had not lied and that conditions would not change, with all legal fees refunded if the attorney failed, and whether he could advertise that guarantee. The committee concluded the proposed conduct was inconsistent with the Code, whether analyzed under the advertising rules or the contingent-fee rules.

On advertising, the committee applied DR 2-101(A), which bars false, deceptive, or misleading information, and DR 2-101(B), which reaches claims about the quality of services and claims that cannot be measured or verified. It found the form misleading in three ways: the word "guarantee" implies an unverifiable preeminence in immigration law; the money-back promise suggests a no-lose proposition while failing to disclose that the client remains liable for costs under DR 5-103(B); and the form may suggest an appearance of impropriety by implying that something other than the merits will determine the result. The committee stressed that the audience, often unsophisticated in legal matters and sometimes new to the country, was especially susceptible to misleading interpretations.

On the fee, the committee observed that unlike a typical civil contingent fee there was no fund out of which the fee could be paid (the result is a visa, not a money judgment), so the fee was paid in advance and refundable on conditions. It found that the refund conditions, which tied a refund to whether the client had told the truth, gave the lawyer a financial interest in proving his own client had lied, a conflict that strikes at the trust the attorney-client relationship depends on. At a minimum, the committee said, the lawyer must specify clearly the conditions on which a refund would or would not be granted, which the proposed form did not do, and it answered the inquiries in the negative.

Currency note

This opinion was issued in 1986, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Lawyer advertising and communications about services are now addressed by Rules 7.1 and following, fees and contingent fees by Rule 1.5, and advancing litigation costs by Rule 1.8(e). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer advertise or offer a "guarantee" of a legal result?

A: The committee concluded the term "guarantee" is misleading under DR 2-101(A) because it implies an unverifiable preeminence and suggests the lawyer's expertise, rather than the merits, will determine the result.

Q: What is wrong with a money-back guarantee of fees?

A: The committee concluded a money-back promise is deceptive when it fails to disclose that the client remains liable for litigation costs and expenses even if the lawyer is unsuccessful, citing DR 5-103(B).

Q: Why does the refund condition create a conflict of interest?

A: The committee concluded that tying a refund to whether the client told the truth gives the lawyer a financial interest in proving his own client lied, undermining the trust at the heart of the relationship.

Q: Does it matter that approval was said to be non-discretionary?

A: The committee concluded it did not, because assessing the legal validity of that statement was beyond its jurisdiction, and an abuse of discretion always remains possible, so no result is a foregone conclusion.

Background and rules framework

The opinion applied New York Code DR 2-101(A) and (B) (false, deceptive, or misleading advertising, including unverifiable quality claims), DR 5-103(B) (the client's ultimate liability for litigation costs), and the contingent-fee framework of EC 2-19 and EC 2-20 and DR 2-106(C) (no contingent fees in criminal matters), together with the loyalty principle of Canon 4 and EC 5-1. These correspond to ABA Model Rules 7.1 and following (communications about a lawyer's services), Model Rule 1.5 (fees), and Model Rule 1.8(e) (advancing litigation costs).

Citations and references

Rules of Professional Conduct:

• New York Code DR 2-101(A), (B); DR 5-103(B); DR 2-106(C); EC 2-10, EC 2-19, EC 2-20; Canon 4 (applied in the opinion)
• MR 7.1 (communications about services); MR 1.5 (fees); MR 1.8(e) (litigation costs)

Cases:

• Zauderer v. Office of Disciplinary Counsel, 105 S.Ct. 2265 (1985), deception in attorney advertising

Other opinions cited:

• N.Y. City 81-56: the phrase "no fee unless we're successful" may be misleading
• N.Y. State 487; N.Y. State 539; N.Y. State 464: misleading advertising and litigation costs

See also

• NYC Bar Formal Op. 1996-5: Fees, Nonrefundable Retainers, Advertising of Fees
• NYC Bar Formal Op. 1986-3: Fee for Criminal Defense Charged Against a Civil Recovery

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1986-1/