A Difficult Lesson to Learn

I would venture to say that most attorneys have had a scenario somewhat like this:

Your family member, friend, or former colleague asks you to help them with a legal issue.  You don’t typically practice in that area of law, but you really want to help.  You are pretty sure you can figure it out.

Or what about this scenario?  A client hires you to help with a legal issue.  You have a great rapport with the client, and you understand that they are going through a particularly difficult time their life.  You think that there must be more you could do to help and maybe you could veer from the course you would normally take with just this one client.

Beware!  Proceed with caution.  Though it is admirable to want to go out of your way to help in these situations, it is not always wise.  You never think that the clients for whom you go above and beyond would file a grievance against you, but it is very common in these scenarios.  It is wise not to deviate from how you would normally handle a case, even if a particular client evokes a great sense of sympathy.   At a recent CLE I attended, Warren Savage from Lawyer’s Mutual advised, “even if it is an ‘easy’ relationship, follow the same procedures.” Prepare a fee agreement, even for a friend.  Document everything, just as you normally would with any other client.  Be careful not to stray too far outside your area of expertise without adequate preparation.  Another wise person recently stated “there is no friends and family exception” when it comes to a grievance.

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Avoiding a State Bar Grievance: Managing Client Expectations in PI Cases

Every year, the State Bar receives thousands of complaints about lawyers and opens approximately 1500 grievance files a year.  A personal injury practice can be challenging, but attorneys practicing in this area can avoid the errors and pitfalls that often create grievances.

I recently interviewed Drew Haywood, a personal injury attorney in Durham, about his practice.  Drew was adamant that setting and managing client expectations throughout the representation is the key to avoiding grievances and gaining satisfied clients. From my interview with Drew and from representing attorneys who have had grievances filed against them, I assembled a list of best practices for managing client expectations in a personal injury practice:

  1. Communication. The first step in managing expectations is communication. There will likely be aspects of the case that create challenges. If the client knows about these issues and is prepared at the outset, it is easier to deal with them down the road. A substantial portion of grievances come not from incompetent representation but from lack of communication with clients. So keep in touch with the client whether there is good news, bad news, or no news. The number one complaint by clients to the State Bar?  My attorney does not return my calls, e-mails, letters, etc.
  2. Written and Detailed Fee Agreements. Fee disputes can lead to a lawsuit or a grievance filed with the Bar, so fee agreements are critically important and are required if the fee is contingent on the outcome of the matter.  The contingent fee agreement should explain the scope of the representation and how fees are calculated. The agreement should also state whether expenses will be deducted before or after the attorney fee is calculated. Do you intend to seek reimbursement from the client for advanced costs in the event of no recovery?  If so, put it in there.  If you charge the client for advanced costs, keep the client informed of the costs as they occur.
  3. Settlement Statements. Provide disbursement settlement statements to clients when the case concludes showing where all the funds came from and where they are going including costs, liens, payments outstanding, attorney fees, and the net amount the client will receive.  It is a good idea to include a copy of the fee agreement, liens, the release, and receipts for all payments made on behalf of the client as part of the settlement packet. The settlement statement may also serve as the final accounting if you include enough information and can show that the net balance, after disbursing all funds, is zero. If there is no recovery, a statement should be provided noting any costs to be reimbursed.
  4. Medical Lien Resolution. Lien resolution is a complex area and can be time consuming in a personal injury practice.  Drew advised that the key is to know, understand, and follow the guidelines.  Creating a chart of providers, the amount charged by each, the amount paid, amounts outstanding, and any possible lien claims will benefit both you and the client. At the outset of the representation, ask the client to sign a disclosure statement which identifies any benefits they receive that may result in a lien. Likewise, prior to settlement, give notice of liens if possible to the client and explain which funds may be withheld or may cause a delayed disbursement

Drew pointed out attorneys are often afraid to set client expectations on the front end because they are afraid of losing the client.  However, managing client expectations can go a long way to establish your credibility, keep your clients happy, and avoid a grievance.

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Inadvertent Disclosure of Privileged Information – Major Headache or Minor Hiccup? Part 2

Once you have navigated and closely followed the rules regarding how to handle inadvertent disclosure, a very important question remains: Does inadvertent disclosure destroy the privileged nature of the communication?

This is an interesting question and one that the RPCs seem to avoid.  In fact, Comment 2 of RPC 4.4 states that “the question of whether the privileged status of a writing has been waived” is “a matter of law beyond the scope of these rules.”

So how does North Carolina case law address this issue?  Case law in NC regarding this issue is “not well developed.”  Blythe v. Bell, 2012 NCBC 42 (N.C. Super. Ct., July 26, 2012) 2012 WL 3061862; see also Morris v. Scenera Research, LLC, 2011 NCBC 33 (N.C. Super. Ct., Aug. 26, 2011), 2011 WL 3808544.  The Court in Morris had used the Fourth Circuit’s “five-factor balancing test” to determine if the privilege had been waived upon inadvertent disclosure.  The Court elected to use the Fourth Circuit’s test in that particular case because the issues arose during discovery while the case remained in federal court awaiting remand, and the discovery plan was developed using the federal rules.  Blythe at ¶ 51 citing Morris.  The Court in Blythe opined that the Fourth Circuit’s test was “an appropriate vehicle for the North Carolina state courts.”

So what are the balancing test factors?

(1)    The reasonableness of the precautions taken to prevent inadvertent disclosure;

(2)    The number of inadvertent disclosures;

(3)    The extent of the disclosures;

(4)    Any delay in measures taken to rectify the disclosures; and

(5)    The overriding interests of justice.

Blythe at ¶ 52 citing Morris, 2011 NCBC 33 at ¶ 45.

Are some factors more important than others?  The Court in Blythe found “that the balancing test is controlled by the first factor, and that the absence of reasonable precautions undertaken before the production of privileged communications prevents the court from using the other factors to protect against waiver.”  Blythe at ¶ 53.  The Court also stated that “[w]hether the efforts were ‘reasonable’ obviously depends on the particular circumstances that may vary from case to case.”  Blythe at ¶ 54.

So, in short, the answer to whether the privilege is waived by the inadvertent disclosure is one that will vary.  Because there is no clear answer, it is very important to ensure you have procedures in place to prevent inadvertent disclosure of privileged information, but if you happen to disclose such information, notify opposing counsel as quickly as possible to hopefully resolve the matter.  It is wise to keep professionalism in mind when deciding whether to challenge the privilege, as this situation could just as easily happen to you.

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Inadvertent Disclosure of Privileged Information: Major Headache or Minor Hiccup? (Part 1)

You are going through the discovery materials that opposing counsel sent you when you come across a document that is marked “Privileged.”  How do you handle this situation?  What are your duties?  What if the document is not clearly marked privileged, but you begin to read it and immediately recognize that it is privileged communication?  What if that privileged document contains the evidence you need to prove your case, the “smoking gun” so to speak?  What happens to the privilege?  Is it destroyed?

When considering these questions, you will find some guidance in Rule 4.4(b) of the North Carolina Rules of Professional Conduct.  Rule 4.4(b) states that “[a] lawyer who receives a writing relating to the representation of the lawyer’s client and knows or reasonably should know that the writing was inadvertently sent shall promptly notify the sender.”  Comment 2 under this rule indicates that notification is necessary in order to “permit that person to take protective measures.”

What protective measures can the sender take after he inadvertently produces information?  Rule 26(5)(b) of the North Carolina Rules of Civil Procedure lists the steps necessary for both parties when privileged information is inadvertently produced.  Specifically, the sender may assert a claim to privilege by notifying opposing counsel of the claim and basis for it.    Upon receiving notification of the claim, opposing counsel then “(i) must promptly return, sequester, or destroy the specified information and any copies [he] has, (ii) must not use or disclose the information until the claim is resolved, (iii) must take reasonable steps to retrieve the information if the party disclosed it before being notified, and (iv) may promptly present the information to the court under seal for determination of the claim.”  The sender must then take care to preserve the information until the court determines whether the information is indeed privileged.

If you have determined that the document received is privileged, and you are confident you know what your duties are after reading RPC 4.4(b) and Rule 26(5)(b), the question becomes, can you read or continue reading the document?  The Rules of Civil Procedure do not answer this question and Rule 4.4 and its comments effectively overruled a previous ethics opinion (RPC 252) concluding that a lawyer should refrain from reading it.  A more recent opinion dealing with review of employer-obtained e-mails between the employee and his attorney suggests that whether an attorney may read the contents depends upon whether the privilege has been waived by the disclosure of the information.

If Attorney A is able to conclude, confidently and in good faith, that the privilege was waived, he may read the emails and use them to represent his client. However, in deference to the bar’s interest in protecting the attorney-client privilege, Attorney A should err on the side of recognizing the privilege whenever an analysis of the facts and case law is inconclusive. If a matter is in litigation, Attorney A may seek the court’s determination of the waiver issue.

2012 FEO 5, Opinion #3.  This opinion does not deal with inadvertent disclosure, but the quoted language is still instructive.  As a matter of professionalism, if you believe the information produced is clearly or likely protected by the privilege on its face, our advice would be to refrain from reviewing the information.  If you are certain the privilege has been waived, then it appears you may ethically review the information. If you are uncertain about the privileged nature of the document, you may need to review some or most of the document to make that determination.  Ultimately, you should always notify opposing counsel that you have received a potentially privileged communication, and you should not attempt to use an arguably privileged communication without court resolution or consent.   Although the ethics opinions do not clearly prohibit the review of privileged information if inadvertently produced, if you are ever presented with this dilemma, just think about how you would want opposing counsel to handle this situation if it were you that inadvertently disclosed confidential information.

The question of whether the privilege is waived by inadvertent disclosure will be discussed in part two of this blog.

 

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Effectively Managing Online Client Reviews

I recently read a blog by AVVO’s General Counsel, Josh King, regarding online client reviews.  His article caught my attention because AVVO publishes online lawyer ratings, reviews, and disciplinary records for lawyers.  I grew even more interested (read: fearful) when I discovered ratings and comments can be posted without my consent or knowledge.  In his blog, Mr. King addresses the fact that lawyers are averse to being simply a product consumers can review when he said, “I’ve heard every possible concern from attorneys: clients in my area are psychos, they can’t evaluate legal work, they have unreasonable expectations, etc.  It’s the ‘lawyers are different’ mantra. But you’re not. You’re a toaster.

social media pic

Or a luxury hotel.  Is that better?”

Mr. King is likely right. Like it or not, lawyers and their services are being evaluated and reviewed by their clients. So what do lawyers do about it?

Some of the best practices for handling online client reviews are:

  • Request that happy clients post reviews. By encouraging positive reviews, they will outnumber any negative ones.
  • Be proactive and communicate often with your clients to increase the number of happy clients. A client that feels valued and important is less likely to post a negative review.
  • Regularly review all online client feedback.
  • Respond to any negative client reviews by apologizing for their dissatisfaction and offering to personally speak with him/her to find a resolution to the matter.  A professional response can go far.
  • Stay away from reviews-for-hire.  It’s a growing industry but ethical violation.
  • Never respond to a negative client review by breaching client confidentiality.

The last point is an important one.  Last month, an Illinois attorney stipulated to a public reprimand for violating client confidentiality where she responded to her client’s negative review on AVVO. [The disciplinary complaint is at http://www.iardc.org/13PR0095CM.html].  The client, a former flight attendant with American Airlines, retained the attorney to secure unemployment benefits where the client had been terminated for allegedly assaulting a co-worker.  The client was denied unemployment benefits, terminated the attorney, and posted an unfavorable review.  The attorney retorted online, “I feel badly for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.” By failing to craft a professional response, the attorney was reprimanded by the Bar and let an opportunity pass.

So instead of fighting (or fearing) online client reviews, use it to your advantage.  The positive reviews by your happy clients may generate new clients, and the negative ones can be a chance to improve your professional services.

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Make the Call…

I recently had an issue with a medical bill that was not being paid correctly.  After multiple calls to the insurance company and the medical practice’s billing department, I finally figured out where the glitch was.  Apparently the physician’s bills were not being submitted under her correct “Provider ID.”  I contacted the office manager at the practice to advise her of what was going on, and I received no return call.  I waited several days and left another message, and again, I received no return call.  After leaving the third message, and getting no response, I was very frustrated and a bit angry.  Why couldn’t this person take a few minutes of the day to call me?  Who else could I call to get something done?

This unfortunate situation made me think of one of the most common complaints clients have about their attorneys.  It is understandable that clients get angry when an attorney does not promptly return their phone call.  The longer the period of time that passes between the initial message and the attorney’s response, the more frustrated the client becomes.  Wouldn’t you feel the same way?  When you call someone back, you are not just conveying the words, you are telling that person that what they said matters to you.  Even if you are unable to handle the client’s request immediately, simply letting the client know that you received the message and you will address the issue, is often enough to put his or her mind at ease.

Most attorneys have a client or clients who are very difficult to speak with.  You can find yourself thinking that you would rather do ANYTHING but call this person back.  I wrote down a phrase from a Lawyers Mutual CLE I attended last February called “Wrestling With Ethical Dilemmas – We Have Met The Enemy…”  The following phrase has run through my mind a lot since I attended the CLE, as it is applicable to life in general:  “Do What’s Harder When It’s Easier.”  Even though you would rather put off that phone call until MUCH later, make yourself call.  Even if the client is exhausting or you are delivering bad news, it is easier to have the conversation now than to face a grievance down the road.

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Out with the Old, In with the New: Closed File Storage

Many people box up old files, put them in storage, and hope they never see them again.  Attorneys, however, should store client files in a way that would be easy to retrieve if called upon to do so.  Further, attorneys have a duty to maintain and dispose of client files in a manner consistent with our ethical guidelines.

RPC 209 provides that the original file belongs to the client and, because an attorney has a duty to safeguard the property of a client, the client files must be stored in a secure place.  Closed client files can be destroyed anytime with client consent or after a six year period from the conclusion of the representation.  Keep in mind some situations may require that the attorney retain the file or a portion of the file for a longer period. For example, in destroying files, attorneys should not destroy (1) property which actually belongs to the client, (2) information useful in the assertion or defense of a client’s position in a matter for which the statute of limitations has not expired, or (3) original documents of independent legal significance such as an original will or stock certificate (which must be maintained indefinitely or returned to the client).

Some useful points when preparing client files for disposal:

  • Keep a running list of the file name, the closure date, and the date it may be destroyed.
  • For hard files, group files together in a box that may be destroyed at the same time.  Label the box with a number and a list of the files contained in it.
  • For electronic files, off-load files in a secure place and indicate when they may be deleted.
  • Review the file before closing or placing in storage and gather any property belonging to the client. The property should be either returned to the client or retained until the items are deemed abandoned and escheat to the state under Chapter 116B. RPC 209
  • Make note of any applicable statute of limitations on the file that runs longer than the six-year file retention requirement.
  • After six years, the lawyer is not required to notify the client, and the file can be destroyed, subject to the above three exceptions.
  • The Rules do not provide for any particular method for destroying client files; however, the method must preserve client confidentiality.
  • A record of all destroyed client files should be maintained indefinitely. See RPC 209.

A little work to organize and prepare closed files for disposal on the front end will save you lots of time and energy on the back end when it comes time to dispose of the files.

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The Devil is in the Details: Common Trust Accounting Issues

Recently at a NCBA Law Practice Management & Technology Section Council meeting, Peter Bolac, the Trust Account Compliance Counsel at the State Bar, presented “Common Trust Accounting Issues.”  The presentation was exceptionally beneficial to both small and large firms and focused on several areas: employee theft, check scams, reconciliations and outstanding checks on trust accounts.  Although it is essential to have a comprehensive reconciliation and accounting procedure in place with checks and balances, Peter provided several easy ideas to add to that procedure.  From his presentation, I derived some easy-to-implement and smart accounting practices to safeguard your trust accounts and your law license:

1)      Always, always, always be vigilant; as we all know, lawyers have a professional duty to supervise their non-lawyer staff and can be disciplined by the Bar for failure to do so;

2)      Have well-documented and sound accounting procedures in place that are followed consistently.  Consult an expert if you are unsure of what those procedures should look like;

3)      Write a letter to your bank stating that the principals or partners are the only ones who are  authorized to transfer/withdraw money.  Although the Rules permit non-lawyers to be signatories on trust accounts, best practices dictate that non-lawyers should not be signatories;

4)      Reconciliations are still the number one problem with attorney trust accounts.  Although quarterly 3-way reconciliations are required, it is a better practice to do them monthly. The 3-way reconciliation compares the sum of the individual client ledgers to the firm’s general ledger and to the bank statement. Peter provided a Trust Account Reconciliation Sheet to our group and gave us permission to share.  Feel free to call us for a copy.

5)      Implement a system so that different employees do different functions, such as:

(a) The person who opens and reviews the trust account statements should not also reconcile the accounts.

(b) The person who issues checks should not complete the reconciliations;

(c) The employee completing the reconciliations should not be the only person to review the reconciliations.

6)      An attorney needs to carefully review the reconciliations and periodically spot check the source documents (account statements, checks and deposit slips);

7)      Consider Positive Pay. It is an anti-fraud service offered by banks and protects companies against altered checks and counterfeit check fraud.  After a firm cuts checks, the firm transmits to their bank a list of the checks they issued with the check number, date and dollar amount.  The bank imports the list into their computers.  When checks are presented to the bank for payment, the bank will match each check presented to the firm’s previously transmitted lists.  If a check does not match, it will not clear.

8)  A lawyer may only take funds remaining in the trust account if the funds can be conclusively documented as the lawyer’s money;

9)  Regarding outstanding checks on trust accounts, if the check is over five years old, the funds may qualify for escheatment according to N.C.G.S. 116B-53.  Make sure you have a process in place and each year review the trust accounts to determine which funds should be escheated.

10)  Miscellaneous items: (a) Make sure the account is set up as an IOLTA account;  (b) When you meet with your bank, go with your NSF directive; (c) Bank statements must include copies of canceled checks; (d) SIZE does matter (when it comes to check copies from the bank) and the rules are very specific; (e) Specify clients, bank name, and check number on all trust account deposit slips and keep a copy; (f) Keep records for 6 years; and (g) Words not to use with trust accounts are “borrow, adjustment,” and “auto-reconcile.”

Last great tip derived from the presentation:  Peter Bolac is now on Twitter and you can follow him @TrustAccountNC for attorney scam alerts and other news affecting attorneys and their trust accounts.

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Turning Out the Lights Part Four: Ethics of Closing a Law Firm

Ethical responsibilities should be one of the most important considerations in the sale, purchase, or dissolution of a law firm.  The Rules of Professional Conduct provide that the practice of law is a profession and not merely a business; clients may not be purchased and sold at will. The Rules also make it clear, while a lawyer may sell or purchase a law practice, the lawyer must uphold certain professional responsibilities. Although not comprehensive, referencing the following rules and ethics opinions is a good starting point if you are selling, purchasing or winding down a law firm:

Duties Owed to Clients

Rule 1.17 of the Rules of Professional Conduct provides a lawyer or law firm may sell or purchase a law practice or an area of law practice as long as several conditions are met: (1) Seller does not continue to engage in the private practice of law from an office that is within a 100 mile radius of the purchased practice. (Note: there is a recent amendment which would permit a lawyer to continue to work for the law practice as an employee after its sale – see blog – “Now You Can Retire…Or Not”) (2) The entire practice or entire area of practice must be sold to a lawyer or law firm; (3) Written notice is sent to each of the seller’s clients; (4) If a client cannot be given notice, an order by the court transferring representation of that client to the purchaser must be obtained; (5) The fees charged to clients may not be increased by reason of the sale; and (6) The seller and purchaser may enter into reasonable finance arrangements as the sales price does not need to be paid in one lump sum; however, the seller may not continue to have control over the practice. The requirements in Rule 1.17 do not apply to the sale of a law practice to lawyers who are current employees of the firm. See 98 FEO 6.

RPC 48 outlines the professional responsibility of lawyers involved in a law firm dissolution.  The dissolution of a firm requires consideration of several principal areas: (1) The continuity of services to clients should be paramount. Any attorney involved in a client representation at the time of dissolution has an obligation to continue the representation until the matter is concluded or the attorney is required or permitted to withdraw; (2) The rights of clients to counsel of their choice and the required notifications; (3) The duty of the firm’s principals to deal honestly with each other and not involve clients in any disputes resulting from the winding down process; and (4) The protection of and accounting for all client property.

Rule 1.16 Whether selling or winding down a practice, the client’s relationship with the departing attorney will end.  When terminating the representation of a client, the lawyer must comply with applicable law requiring notice to or permission from a tribunal. Upon termination of representation, a lawyer must take steps to reasonably protect a client’s interests including: (1) giving notice to the client; (2) allowing time for retention of other counsel; (3) surrendering papers and property to the client to which client is entitled; and (4) refunding any advance fee payments which have not been earned or incurred.

Handling Client Files

RPC 209 The opinion rules an attorney may dispose of closed client files subject to certain requirements. No particular method of destroying files is proscribed but the method used must preserve client confidentiality. With the consent of a client, a closed file may be destroyed at any time.  However, the lawyer should review the file and retain any items in the file that belong to the client or contain information useful in the assertion or defense of the client’s position where the statute of limitations has not expired. Absent the client’s consent, the client file must be retained for a minimum of six years after the conclusion of the representation, and a record must be maintained of all destroyed client files.

Rule 1.15 In addition to retaining the client file for six years after representation has concluded, a lawyer must maintain complete and accurate records of all client property entrusted to the lawyer for a period of six years immediately preceding the lawyer’s most recent fiscal year end.

RPC 234 rules an inactive client file may be stored in an electronic format provided documents with legal significance in their original format are preserved and the electronic documents can be reproduced on paper.

Communication Concerning Change of Status

Rule 7.1 provides communications about a lawyer’s services cannot be misleading, so all ads, websites, directory listings, social media, etc. must reflect the changed status of the law firm.

As suggested in part one of the “Turning Out the Lights” series, the end of a legal career is a certainty for all who practice the law, but despite that, many attorneys reach that point without considering and preparing a succession plan. Hopefully, N.C. lawyers will lead the way and change that.  Although there is no doubt exit planning is a challenge, it is also an opportunity for you to create a plan so your clients and your practice are not left in the dark.

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Seven Dirty Words in Lawyer Advertising

OK, so the words are not really dirty, indecent, or obscene, and their use won’t get you arrested — a la George Carlin.  But there are certain words or phrases a NC attorney should be wary of when creating a webpage or an advertisement.  These are words or phrases that can get you in trouble unless you are careful about how you use them and, in some cases, unless you include disclaimer language.  By the way, this is not an exclusive list, but it does include some of the usual language that trips up attorneys.

  1. Specialize/Specialist – Most everyone knows that Rule 7.4 prohibits the use of the word “specialist” or a variant of that term unless you are certified as a specialist by the State Bar or an organization approved by the State Bar or the ABA.  Be careful about advertising on third party or social media sites that use the term specialist.
  2. Guarantee/Promise – It is a bad idea to promise anything.  You can’t promise results because it creates unjustified expectations in violation of Rule 7.1.  Nonetheless, if there is something (not results) than you can assure will happen 100% of the time, then you could guarantee it.  For example, “I guarantee that if you are not satisfied, I will return your fee.”  It must be true 100% of the time, no exceptions.  Otherwise, don’t say it.
  3. Get/Obtain – these seem like a fairly innocuous words, but the word “get” gets attorneys into lots of trouble, especially when coupled with the word “results” (See #4 below).  If you are saying you will “get” anything for the client having to do with results, then you are creating unjustified expectations. Rule 7.1((a)(2).  It sounds too much like a promise or guarantee.  Use qualifiers.  Instead of saying “we will help you get ___,” say “we will try to help you get ___.”
  4. Results – This is a tricky one.  I’ve seen it in slogans: “Experience, Dedication, Results.”   That appears to be OK because it doesn’t imply a specific result.  But to talk about the actual results you will obtain for future clients, “we work to obtain money for your injuries” or “our firm can get you a quick settlement” is not permitted as creating unjustified expectations.  Rule 7.1(a).  It is unlikely a disclaimer will help the language in either example because both include the word “get” coupled with specific results.  Past results or successes, (“we’ve successfully represented hundreds of clients”) or a verdict/settlement record, can be advertised if truthful, but you must include disclaimer language consistent with 2009 FEO 16.  To sum up, don’t talk about results you will obtain for future clients; past results must include disclaimer language.
  5. Most/Best/Top – These words should not be used to describe your services.  If you are saying you are the most, the best, or the top anything, then be ready for a Bar complaint.  This is a comparison of your services with others, and it cannot be factually substantiated.  Rule 7.1(a)(3).  Can you say you are “one of the leading attorneys in the State,” or “one of the premier law firms in the state”?  Well, even saying you are “one of” the attorneys who possess those qualifications is risky.  You must be able to factually substantiate that claim.  It’s safer to leave those kinds of descriptions out of your advertisements.
  6. Deserve – This one is also a bit ticklish.  There is no specific rule which prohibits the use of the word.  To use it in the following way, however, can potentially cause problems:  “We help clients obtain the money they deserve.”  Staff counsel at the State Bar takes the position that using “deserve” in this way is misleading because it implies a promise to do something and implies that everyone deserves to recover something.  You may be able to use deserve when discussing past results without implying that everyone deserves to recover monetary damages  — “we’ve helped clients recover the money they deserved,”  — but any discussion of results should include a disclaimer. Adding more qualifiers may eliminate the need for disclaimer language: “We’ve helped clients seek to recover the money they deserved.”
  7. Expert – This is another word that is not specifically prohibited by the Rules and there is no ethics opinion which says you can’t use the word to describe your services.  But be careful because its use may be deemed misleading. You need to be certain that, at a minimum, you have sufficient experience in the practice area before using this term.  I would not recommend saying you are an expert because you may be called upon to substantiate that claim.

The words “always” and “never” did not make the list but deserve mention.  Stay away from absolutes.  They are too much like promises or guarantees.

Are we picking nits here?  Absolutely.  Will your marketing professionals like it?  Absolutely not.  Heck, this is legal advertising folks.  If your ad is slick, novel, cute, interesting, flashy, catchy, or witty, you’ve likely violated some Rule of Professional Conduct.  But hopefully, these quick tips will help you avoid a Bar complaint.

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