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August 15, 2014
Proposed ‘past results’ advertising revision on hold until December

A proposal to revise the Bar’s guidelines on using past results in lawyer advertisements has been delayed until at least December.

Carl Schwait Board Review Committee on Professional Ethics Chair Carl Schwait told the Board of Governors last month that the committee was reluctant to change the guidelines because they had already been modified once since they were adopted last December.

“We’re not ready to do it again; we felt rushed,” Schwait said. The modifications have “a ripple effect all around the state. Every time we do that, some other law firm comes before us and wants to modify it to something that’s a little different.”

He said in one court case challenging Bar advertising regulations, the judge found one problem was the Bar having trouble being consistent in telling lawyers what they could and could not do.

On using past results, “We’re not only having problems keeping up with it, we are having problems telling staff what to tell each person who comes in front of them,” Schwait said.

A rewrite of Bar advertising rules that was approved by the Supreme Court last year for the first time allowed lawyers to mention past results in their ads as long as the results were objectively verifiable.

The guidelines, approved in December and modified in February found that outdoor, billboard, radio, and television ads carried the high risk of being misleading when they used past results and said past results would not generally receive notice of compliance from Bar staff. Other media, such as direct mail, emails, print, and websites could use past results that were objectively verifiable, omitted no material facts, and used appropriate disclaimers. That included any amounts listed as won for clients had to be net awards after costs and attorneys’ fees, and not reduced after an appeal.

The proposed changes would specify that past results using dollar awards would generally not receive a “safe harbor” letter in billboard, outdoor, radio, and television ads.

Schwait said those alterations were prompted by advertisements submitted for Bar approval from a traffic ticket law firm, which used its objectively verifiable high rate of success in representing clients with certain types of tickets.

“The committee feels we need to do two things. One, we need to talk about it among ourselves,” Schwait said. “And, two, we feel we need public comment when we begin passing these past-results modifications.”

He said the committee wants to carefully craft any further changes so no further amendments are needed.

[Revised: 02-13-2015]