Ethics Opinion 834
NEW YORK STATE BAR ASSOCIATION
Disclosure of fraud before and after 4/01/2009
Committee on Professional Ethics
Opinion #834 (12/15/2009)
Distinguishing N.Y. State 771 (2003) in light of rule changes
|Topic: Use of disclaimer with client testimonials or endorsements.|
|Digest: Under the New York Rules of Professional Conduct, truthful client testimonials or endorsements are permitted if accompanied by the disclaimer specified in Rule 7.1(e)(3).|
|Rules: 7.1(a)(1), (d)(3), and (e)(3)|
- Must an advertisement that contains a client testimonial or endorsement also contain the disclaimer: “Prior results do not guarantee a similar outcome”?
- Rule 7.1(d)(3) provides that an advertisement that complies with Rule 7.1(e) may contain “testimonials or endorsements of clients … and of former clients.” Rule 7.1(e)(3) requires advertisements containing testimonials or endorsements of clients to include the following disclaimer: “Prior results do not guarantee a similar outcome.” Therefore, under the new Rules, an advertisement that contains a client testimonial requires the prescribed disclaimer concerning results.
- At the time we decided N.Y. State 771, the New York Code of Professional Responsibility did not have a specific Disciplinary Rule dealing with client testimonials. However, DR 2-101(A) of the Code did prohibit advertisements that were “false, deceptive or misleading,” so this Committee examined client testimonials under that standard. We opined under that standard that the nature of the testimonial determined whether a disclaimer of the kind now mandated by Rule 7.1(e)(3) was required. Like DR 2-101(A) of the old Code, new Rule 7.1(a)(1) prohibits testimonials that are false, deceptive or misleading, but now Rule 7.1(e)(3) always requires the disclaimer set out in that subparagraph.
- We answer the question in the affirmative. Under Rule 7.1(e)(3), an advertisement that contains a client testimonial or endorsement must also contain the disclaimer: “Prior results do not guarantee a similar outcome.”