Can a lawyer run a radio or TV ad using a celebrity client's testimonial, name the celebrity, and pay the celebrity for their time?

Plain-English summary

The committee was asked whether a lawyer or firm may advertise on radio or TV using a celebrity client to express satisfaction with the firm's services and results, whether the celebrity may be named, and whether the firm may pay the celebrity client for the time and services spent making the testimonial.

On the first two questions, the committee answers yes. The Code permits advertising that is not false, deceptive, or misleading (DR 2-101(A)). The committee relies on its prior testimonial opinions (N.Y. State 614 and N.Y. State 771) holding that client testimonials are not invariably misleading, and finds no reason to treat a celebrity client differently. A testimonial that reports prior results may need a disclaimer (that the endorsement does not guarantee or predict a similar outcome) to dispel any misleading quality, and additional cautionary language may be required if the testimonial is misleading for reasons beyond reporting a positive outcome. Naming the celebrity is not itself a problem, since the audience will often recognize the celebrity anyway.

On the third question, the committee answers no: paying the celebrity client for the testimonial would violate DR 2-103(B), which bars compensating or giving anything of value to a person to recommend the lawyer's employment. The committee treats a celebrity client's testimonial as a recommendation of employment, so paying the client for it is prohibited. It rejects the argument that paying for the celebrity's time and services is merely paying the cost of the advertisement. While a non-client actor may be paid for time and services (N.Y. State 661), a celebrity client who actually makes the recommendation is more than an actor; paying that client risks purchasing the willingness to endorse, the precise harm DR 2-103(B) targets. The committee also notes the record-keeping and other requirements that apply to all radio and TV advertising under DR 2-101(F) and (K).

In practice

Under the New York Code as it stood at the time, the opinion holds that a celebrity client testimonial is permitted on radio or TV if it is not false, deceptive, or misleading and the ad meets the Code's record-keeping rules, and that the celebrity client may be named. The committee draws the line at payment: a lawyer may not compensate the celebrity client for the testimonial, including for the client's time or services in making it, because DR 2-103(B) bars paying a person to recommend the lawyer's employment, and the committee treats the testimonial as such a recommendation. The committee distinguishes a paid non-client actor, who is permitted, from the client who actually makes the recommendation.

Common questions

Q: May a lawyer use a client's testimonial in a radio or TV ad?

A: Yes, if it is not false, deceptive, or misleading. The committee notes a results-based testimonial may need a disclaimer that the endorsement does not guarantee a similar outcome, and that the ad must satisfy the Code's record-keeping rules.

Q: Can the celebrity client be named in the ad?

A: Yes. The committee finds nothing problematic about naming the celebrity, noting the audience will often recognize the celebrity by voice or appearance anyway.

Q: Can the lawyer pay the celebrity client for the testimonial?

A: No. The committee concludes that paying the celebrity client for the testimonial violates DR 2-103(B), which prohibits compensating a person to recommend the lawyer's employment, and that this includes paying for the client's time and services.

Q: What about paying a non-client actor who appears in a lawyer's ad?

A: The committee notes (citing N.Y. State 661) that paying a non-client actor for time and services is permissible, but a celebrity client who makes the actual recommendation is more than an actor, so paying that client is barred.

Background and rules framework

The opinion applies New York's former Code of Professional Responsibility. DR 2-101(A) bars false, deceptive, or misleading advertising (analogous to Model Rule 7.1); DR 2-101(F) and (K) impose record-keeping and related requirements for radio and TV advertising. DR 2-103(B) prohibits compensating or giving anything of value to a person to recommend the lawyer's employment (a facet of Model Rule 7.2). The committee notes that DR 2-101(B), which had barred puffery and self-laudatory claims, was repealed by the 1999 amendments.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications about a lawyer's services); NY DR 2-101(A)
• MR 7.2 (advertising; payment for recommendations); NY DR 2-103(B), DR 2-101(F), DR 2-101(K)

Other opinions cited:

• N.Y. State 614 (1990): client testimonials describing results and the need for disclaimers
• N.Y. State 771 (2003): client testimonials on the Internet
• N.Y. State 661 (1994): paying non-client actors versus paying a client to authorize a testimonial

See also

• NY State Bar Op. 1005: Misleading superlatives in lawyer advertising
• NY State Bar Op. 1007: Advertising a "Best Lawyers" listing
• NY State Bar Op. 1010: Advertising second opinions to represented parties

Source

• Landing page: https://nysba.org/ethics-opinion-792/