By Gary Blankenship
Billboards, radio, and TV ads will be presumed misleading if they refer to past results of cases and give a monetary amount won by clients, following action by the Bar Board of Governors.
The board, at its December 13 meeting in Ft. Lauderdale, approved a recommendation from the Board Review Committee on Professional Ethics to adopt guidelines for Bar lawyers who review ads submitted by attorneys.
While the board was concerned mostly with billboard and electronic ads, all lawyer ads that mention past results must comply with the new guidelines.
The guidelines are intended to clarify recent advertising rule amendments that allow lawyers to refer to past results if they are objectively verifiable. They also refer to claims in criminal cases or success in other types of cases if relevant information is omitted.
Bar staff now will review ads that contain claims about past results that were approved since new ad rules went into effect May 1, and report on when noncomplying ads can be changed. They will contact lawyers and law firms if those ads are deemed not to comply.
The problem, according to BRCPE Chair Carl Schwait, is when these ads that are seen briefly by consumers, such as on billboards, or in short duration, like 15- or 30-second television or radio ads, the message can’t adequately explain that an award mentioned in the ad is a gross amount and not the net amount received by the client after attorneys’ fees and costs.
“We have found that those types of advertisements do not lend themselves to a full explanation as to what a client will get when they say such things as ‘My client got a million dollars,’” Schwait said. “We find on the Board Review Committee that the advertisement then becomes deceptive, it becomes inherently misleading.
“By generally having our staff disapprove those advertisements, it’s up to the petitioner to go forward and show why they should have that advertisement and why the numbers they are talking about are objectively verifiable.”
The approved guidelines state that any amount claimed to be won for a client in an ad in an acceptable advertising medium must be the net amount, and if the client received a structured settlement, the amount must be given in current dollars. They also mandate that unless the advertising law firm can show differently, any ad that includes a dollar amount award must have this disclaimer: “Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.”
The guidelines also give examples of partial information the Bar considers misleading:
* Advertising that the lawyer obtained a $1 million judgment without disclosing that the fees and costs exceeded the amount of the judgment or that the court issued a $500,000 remittitur.
* Advertising that the lawyer obtained a $1 million judgment without disclosing that the defendant offered to settle for $2 million.
* Advertising a success at trial without disclosing that the judgment was overturned on appeal.
* Advertising a success percentage without disclosing material limitations on the types of cases accepted (e.g., advertising a percentage of success in traffic ticket cases without disclosing that the percentage only includes minor infractions by first-time offenders.)
* Advertisement by a criminal defense lawyer that an acquittal on one or more charges was obtained without disclosing that the client was convicted of other crimes in the same case.
The guidelines also say that lawyers cannot claim a win in a case when there are opposing claims or mixed results or if the judgment amount was substantially less than sought or less than a settlement offer.
Bar Outside Counsel Barry Richard said the guidelines are the result of the experience the Bar has gained with the new advertising rules.
“In order to make an advertisement not misleading, it has to include the material information to the consumer,” he said. “It’s the Bar’s position that first of all there tends to be more information required when you are talking about things like past results, and the quantum of information that we anticipate will be needed in most ads is such that billboards and short ads will not be conducive to that information.”
Schwait and Richard said the guidelines are written so that lawyers have the opportunity to show why their billboard, radio, TV, and other ads meet the guidelines and should be allowed. The rules also allow that “the staff can request the information to find out that something is verifiable,” Richard said.
The board stated that there will be a reasonable time for the Bar staff to review existing ads, contact the advertisers if there’s a violation, and for the advertisers to withdraw or modify those ads to comply with the guidelines.
President-elect Greg Coleman praised the new guidelines, saying one of the top issues he hears about from both lawyers and the public in his travels around the state is misleading ads.
In response to a question from Coleman, Richard said while the focus was on billboards and radio and TV ads, the guidelines address the kind of information that must be included when lawyers talk about past results in direct mailings, on their websites, and in other types of ads.
“If I want to advertise about a million- dollar judgment and I know it was a half a million in costs, I need to provide that information,” he said.
The new guidelines are effective immediately.