[Editor’s Note: The Campbell Law Observer has partnered with the Brocker Law Firm, a local law firm that concentrates in ethics and disciplinary matters, to occasionally re-publish articles from the firm’s NC Legal Ethics blog. The following article was recently published on the firm’s site, along with other posts discussing ethics topics affecting North Carolina lawyers.]
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.
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.
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.
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 ___.”
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.
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.
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.”
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.