Concept
What Makes a Statement Misleading
False or misleading communications about the lawyer or legal services
What Makes a Statement Misleading
Rule 7.1 states its prohibition in one sentence and defines its key term in the next. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement, considered as a whole, not materially misleading.1 The definition has two limbs, and each describes a different way for a message to fail. Under the first, the message says something untrue and important, such as a credential the lawyer does not hold. Under the second, every sentence may be true, but the message leaves out something its audience needs, so that the whole conveys a picture the facts do not support. Both limbs measure a message by what a reader takes from it, and literal truth, sentence by sentence, protects the lawyer under neither.
The definition replaces an older method. Before 1977 most states banned solicitation and advertising by lawyers outright, partly on the view that a client should choose a lawyer on character and reputation and that promoting legal services like other consumer products was inherently deceptive to the public.2 The Arizona rule challenged in Bates took that approach. It barred newspaper and magazine advertisements, radio and television announcements, display advertisements in directories, and other means of commercial publicity, with a single exception for a listing in a reputable law list.3 Rule 7.1 asks the narrower question whether this communication deceives. The answer carries constitutional weight, because commercial speech comes within First Amendment protection only if it concerns lawful activity and is not misleading.4
Comment [3] adds a third problem that neither limb names. An advertisement may be deemed misleading when it truthfully reports a lawyer’s achievements but does so in a way that may cause a reasonable person to form an unjustified expectation about the results the lawyer may be able to obtain.5 Nothing in such an advertisement is false and no missing fact is obvious; the reader simply forecasts more than the facts warrant. The three failures run from the false statement to the incomplete message to the unwarranted forecast, and the subsections below take them in that order.
Material Misrepresentations
The first limb of Rule 7.1 reaches a communication that “contains a material misrepresentation of fact or law.”6 A misrepresentation is a statement, or a presentation that works like one, that conveys something untrue about the lawyer or the lawyer’s services. The untruth may concern fact, such as a credential or a record of experience, or law, such as the time left to bring a claim. Materiality confines the limb to untruths that matter, and in an advertisement that means matters a prospective client would weigh in choosing a lawyer.
Credentials, experience, and capabilities fill the reported decisions because a person shopping for a lawyer cannot check them before hiring. The advertiser stands in the opposite position. It offers the service, and presumably it can determine more readily than anyone else whether its statements about that service are true.7 A lawyer who reports an actual record bears almost no cost under the rule.
Disciplinary decisions show the limb at work on each subject. On experience, a lawyer’s commercial showed a simulated jury trial although the lawyer had never tried a case. On credentials, a lawyer advertised twenty years of Marine Corps experience as a former ROTC instructor. On capability, the lawyer in In re Kaszynski advertised “we speak Spanish” when only a nonlawyer assistant did.8
None of the three was an out-and-out lie, yet courts disciplined the lawyers, because they impose discipline on communications that get too clever with the truth.9 The harm lay in the inference. A viewer would conclude that the first lawyer could try a case, that the second had a long Marine Corps career, and that the third could speak with Spanish-speaking clients. A test that checked each sentence for literal truth might pass all three advertisements. Rule 7.1 asks what impression the message leaves with a prospective client, and a false impression on a material point is the misrepresentation.
Materiality keeps the limb from reaching every imprecision, and the three decisions show where it draws the line. Trial experience, a military background, and the language in which an office can serve clients are all facts a prospective client plainly weighs. The rule’s text offers no further formula, so the working question is whether the false fact would matter to a person choosing a lawyer. Bates added a caution about the audience: because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising.10
Falsity is measured against the facts, and a regulator that alleges it must be ready to prove it. In Bates the State Bar argued that the lawyers’ advertisement was misleading in three particulars. It used the allegedly undefined term “legal clinic.” It claimed “very reasonable” prices although, at least for an uncontested divorce, the advertised price was no bargain. And it did not tell consumers that a name change can be had without a lawyer.11 The Court found those assertions unpersuasive on that record. It suspected that the public would readily take “legal clinic” to mean an operation geared to standardized, multiple services, and it found the advertised fee of $175 plus a $20 filing fee reasonable beside a customary charge that the State Bar’s counsel put at $150 to $300 and the State Bar’s own Legal Services Program set at $250.12 The price claim was a checkable fact, and it held up when checked. The third complaint, about the name change, concerns an omission and returns below.
The first limb reaches law as well as fact, but a correct statement of either is not a misrepresentation, even in an advertisement that seeks clients. In Zauderer v. Office of Disciplinary Counsel, a lawyer advertised to women with claims arising from the Dalkon Shield, a product that had spawned an impressive number of lawsuits. The advertisement reported that fact and advised readers that the lawyer was handling such suits and was willing to represent other women with similar claims.13 Ohio disciplined him, but disciplinary counsel stipulated that this information and advice were not false, fraudulent, misleading, or deceptive.14 The Supreme Court agreed that they were entirely accurate. The advertisement did not promise that the lawsuits would succeed, and it suggested no special expertise beyond the lawyer’s work on other such suits.15 That the advertisement also sought business changed nothing. All advertising is at least implicitly a plea for its audience’s custom, and a rule that treated the plea as a defect would forbid all lawyer advertising, a result obviously not in keeping with Bates.16
Because the statements were neither false nor deceptive, Ohio carried the burden of showing that prohibiting them directly advanced a substantial governmental interest.17 That burden is what the label “misleading” removes from a regulator, which is why accuracy matters well beyond the disciplinary hearing itself.
The brochure misstates the law, and the misstatement is material because a recipient who believes it may delay until the claim expires, which is precisely what a person weighs before deciding whether to see a lawyer. Zauderer shows an accurate advertisement that solicits business, and this brochure is an inaccurate one. A common mistake is to treat an advertisement as a misrepresentation merely because it solicits clients or discusses a specific legal problem. The first limb asks only whether the communication says something untrue, or leaves a false impression, on a point that matters to the choice of a lawyer.
Omitted Facts and Half-Truths
The second limb reaches communications in which every statement is accurate and something left out does the damage. A communication is false or misleading if it “omits a fact necessary to make the statement considered as a whole not materially misleading.”19 The lawyer has made no false assertion for a regulator to point to, and the defect is a gap. The words “considered as a whole” make the entire message the unit of analysis, so an advertiser cannot defend by showing that each sentence, read alone, is true. Two other words limit the limb. The omitted fact must be necessary, and the misleading effect must be material.
The reader who sets the measure is the ordinary prospective client. A lawyer knows what fee and cost terms mean and which facts bear on price and quality. A layperson fills a silence with the everyday meaning of the words, and because the public lacks sophistication concerning legal services, the gap between the two matters.20 When everyday meaning and technical meaning diverge, a lawyer can say only true things and still leave the reader with a false belief.
Zauderer shows the problem in a real advertisement. The advertisement described a contingent-fee arrangement and told readers that clients would owe no legal fees if there was no recovery, without mentioning that clients would remain liable for costs. Ohio did not allege that it was false or deceptive in any respect other than that omission, and disciplinary counsel stipulated that the rest of its information was accurate.21 The Supreme Court found the State’s position reasonable. A layperson unaware of the difference between fees and costs could read the advertisement to promise that a losing case would cost nothing, and the possibility of deception was so self-evident that the State did not need to survey the public before concluding that the advertisement tended to mislead.22
Every sentence in that advertisement was true, since a client who lost really would owe no legal fee. What was missing was the fact that costs remain, and it was necessary because without it the reader reaches the no-lose conclusion. One added sentence, telling readers they stay liable for costs win or lose, would have made the message match the facts, and the omission charge would have had nothing to attach to. The defect and the cure are the same fact, so the limb asks what the message needs in order to be accurate.
Exam stems often pose the same problem as a statistic that is correct on the lawyer’s own arithmetic.
Each fact behind the claim is accurate, yet a prospective client who reads “win” in its ordinary sense will conclude that the lawyer prevails in nine of ten contested fights. The unstated definition of a win is the missing fact needed to keep the message from misleading, so the website violates the omission limb. The firm’s arithmetic invites a defense of literal truth, but the question is what a prospective client takes from the word, and an ordinary reader hears a claim about the lawyer’s record in contested matters. Saying that ninety percent of the firm’s matters ended without a conviction on the original charge describes the same record in terms that match it. The rule asks for the fact the message needs, and it does not require the lawyer to publish a complete case history.
The word necessary keeps the limb from turning every advertisement into an exhaustive disclosure. In Bates the State Bar also complained that the lawyers’ advertisement did not tell consumers they could obtain a name change without an attorney, and on that record the Court found the complaint unpersuasive.23 The bar, the Court added, retains the power to correct omissions that have the effect of presenting an inaccurate picture.24 The two cases separate on that point. The costs in Zauderer belonged to the price of the very service advertised, and the ordinary understanding of “fees” led straight to a false conclusion about what a losing case would cost. Nothing similar was shown for the name-change advertisement, and on that record the State Bar had not shown that leaving out the do-it-yourself alternative misled anyone. A student who treats every gap as a violation overreads the limb, and a student who treats the truth of each sentence as a complete defense ignores it.
The doctrine also indicates how the defect is cured. Bates describes the preferred remedy for an incomplete advertisement as more disclosure, not less, since adding the missing fact repairs the message while the truthful information keeps flowing to consumers.25 Zauderer applied that thinking when it upheld a requirement that the advertiser disclose the client’s liability for costs. An advertiser’s rights are adequately protected, the Court said, as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers, although unjustified or unduly burdensome requirements might offend the First Amendment by chilling protected commercial speech.26 A later section takes up that standard in full.
Unjustified Expectations About Results
Neither limb of Rule 7.1 mentions results, yet lawyers advertise results constantly. Comment [3] fills the gap. An advertisement may be deemed misleading when it truthfully reports a lawyer’s achievements but does so in a way that may cause a reasonable person to form an unjustified expectation about the results the lawyer may be able to obtain.28 This defect differs from the first two. A misrepresentation is a statement that is wrong, and an omission is a missing fact. Here every reported fact is accurate and nothing identifiable is missing, and the trouble lies in the inference the audience draws about its own matter.
A prospective client who reads of someone else’s victory tends to treat it as a forecast for the client’s own case, although outcomes turn on facts, law, and parties that differ from matter to matter. The audience cannot test the forecast either. A price can be compared with the bill, but a prediction about results can be checked only after the lawyer is hired and the matter ends. Bates saw the difficulty when it observed that advertising claims as to the quality of services “are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction.”29 The Court left the question open, so the observation is dictum and not a holding, but it explains why quality and results claims draw scrutiny.30
Farrin v. Thigpen supplies the cleanest illustration. A federal district court found misleading a dramatization that showed an insurance company settling when it learned the identity of the plaintiff’s lawyer.31 No word in the scene need be false. The viewer nevertheless takes away a picture of what hiring this lawyer accomplishes, namely that the insurer pays, and no lawyer can promise that outcome in every matter.
The Dalkon Shield advertisement in Zauderer, discussed earlier, lies on the other side of the line. It reported that the product had spawned many lawsuits and that the lawyer was handling such suits. It promised no success and claimed no special expertise, and apart from the omission about costs it was neither false nor deceptive.32 Both messages addressed injured people looking for a lawyer, so the difference lies in what each invites the audience to conclude. The Farrin scene predicts a result for the viewer, while the Zauderer advertisement reports facts about a body of litigation and the lawyer’s work.
Announcements of big verdicts raise the same problem in plainer form. The comment hedges: such advertisements are sometimes considered misleading, because a prospective client may believe they implicitly promise similar results.33
The firm cannot answer a charge by proving that the verdict happened, because the charge concedes that fact. The question is whether the billboard, taken as a whole, invites a reasonable person to expect similar results in a matter unlike the one that produced the verdict. A message saying only that the firm handles catastrophic-injury claims invites no such forecast. That contrast is why the word sometimes in the comment matters: a verdict figure raises the risk, and the surrounding message decides the outcome. Whether a disclaimer can cure a results advertisement belongs to the later discussion of potentially misleading speech.
Superlative claims work the same way. A lawyer who calls himself one of the top lawyers in the state may be found to have created unjustified expectations in prospective clients, as In re Peters illustrates.34 The claim measures quality, so it carries the unverifiability that Bates flagged. The reader has no means of checking the superlative and is likely to expect better results than other lawyers could deliver.35 Typography is not the test. In Shapero v. Kentucky Bar Association, the Court said that a truthful and nondeceptive letter, no matter how big its type and how much it speculates, can never “shou[t] at the recipient” or “gras[p] him by the lapels” as a lawyer engaging in face-to-face solicitation can.36 The remark addressed overreaching rather than deception, but it points the same way here. The inquiry is what the content leads a reader to expect, not how loudly it speaks.
The Model Rule leaves results to its general standard. Commentary on a proposed formulation of the rule suggested that it would prohibit “advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts, and advertisements containing client endorsements.”37 The rule now in force lists only the two limbs, with the comment supplying the gloss on unjustified expectations, so a results advertisement is judged by what it would lead a reasonable person to expect.38
Some states go further than the Model Rule. Florida’s rule, as amended in 2009, lists a reference to past successes or results obtained, and a promise of results, as separately prohibited content alongside its general ban on false or misleading communications.39 On that text the reference itself is the violation, so a lawyer in such a state cannot rely on the accuracy of a verdict figure. When an exam question names no jurisdiction, the Model Rule governs and the analysis is the one above: identify the expectation the communication creates in a reasonable person.