Concept
Recurring Problem Areas
False or misleading communications about the lawyer or legal services
Recurring Problem Areas
Three subjects generate most of the questions that arise under Rule 7.1: how a lawyer describes a fee, what a firm calls itself, and whether a lawyer claims to specialize or to hold a certification. One sentence governs all three. “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services,” and 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 rule adds no special test for fees, names, or credentials. Each setting applies the general definition to familiar subject matter, so a student who memorizes three separate rules is memorizing results the definition would produce on its own.
Each setting also runs on a short label that a prospective client reads quickly and cannot verify. A phrase describing a price, a name on a door, and a designation of expertise pack a good deal of meaning into a few words, and the reader fills the gaps with ordinary assumptions. A label can fail in two ways. It can assert something untrue, which engages the misrepresentation limb of the definition, or it can be accurate in every word and still leave a conclusion the facts do not support, which engages the omission limb.
The method is the same each time: identify what the communication tells a prospective client, compare that message with the facts, and decide whether any gap is material. The Constitution adds a ceiling. Misleading advertising may be prohibited entirely, but a state may not flatly ban a type of potentially misleading information that can also be presented without deception, and the Court has suggested that the remedy in the first instance is preferably a requirement of disclaimers or explanation.2 Fees come first because they show the general test working on the simplest kind of claim.
Describing Fees
The text of Rule 7.1 contains no fee-specific test, so a statement about price is judged like any other communication about the lawyer's services: does it contain a material misrepresentation, or omit a fact needed to keep it from misleading as a whole?3 A lawyer may publish fees, and publication helps clients, because advertising lets consumers compare rates among competitors and so reveals whether the rates are reasonable.4 A fee advertisement therefore raises a concern only when the particular statement deceives.
A stated figure and a descriptive adjective do different work. The figure can be checked against the bill the client eventually receives. The adjective adds a claim the figure does not make. “Give-away prices” tells a listener the lawyer charges less than the market, and “lowest in town” says so outright, yet neither claim can be tested from the advertisement itself. If the implied bargain is untrue, the statement is a misrepresentation. If the figure leaves out a charge that erases the bargain, the statement is an omission.
The spot fails on both limbs. “Give-away” tells listeners the price beats the market, and on these facts it does not, so the message contains a material misrepresentation. The separate charge for the signing meeting is a fact a listener needs in order to see that $450 is not the whole price, so omitting it makes the message misleading as a whole. The lawyer cannot answer that the $450 figure is accurate, because the adjective, and not the number, carries the false impression.
The advertisement in Bates used a comparable word and came out the other way. The advertised fee for an uncontested divorce was $175 plus a $20 court filing fee. Counsel for the appellee put the customary charge in the area between $150 and $300, and the appellee's own Legal Services Program set its rate at $250, so the Court found that the advertised rate seemed “very reasonable” in light of the customary charge.5 Three facts supported the word. The adjective rested on a number, the number could be compared with a verifiable local range, and the advertisement disclosed the filing fee clients would owe in addition. Take away the market comparison and the word rests on nothing, which describes the radio spot above. Because the Court tested the phrase against the facts, Bates does not clear “reasonable” in every advertisement.
A separate opinion in the same case regretted that the decision would let lawyers use a wide variety of adjectives, such as “fair,” “moderate,” “low-cost,” or “lowest in town,” to describe the bargain they offer the public.6 That opinion does not state the holding, but it names the risk that keeps some adjectives dangerous: a word detached from any checkable fact can promise more than the lawyer can deliver. Reading the two opinions together shows why the exam answer is neither “every fee adjective is forbidden” nor “every fee adjective is safe.” The answer turns on whether the word is anchored in something real.
The third step does the real work in adjective problems, and the fourth catches half-truths that pass the first three. An answer that stops at “the lawyer used a subjective word” has asked the wrong question, and an answer that stops at “the number was true” has ignored both the adjective and the omission.
Firm Names
A firm name is a communication about the lawyer's services, so Rule 7.1 governs it.8 The name appears on the office door, the letterhead, the website, and the directory listing, and in each place it tells a prospective client who stands behind the services on offer. Like any other statement, a name can fail in two ways: it can assert something untrue, or it can leave an impression the facts do not support. One question resolves nearly every problem. Does the name imply a connection that does not exist?
A name built from the surnames of lawyers who are or were members of the practice reports true facts, so it rarely raises a problem. A deceased founder's name stays truthful because the practice descends from that lawyer. A trade name carries more risk, because the label can be any phrase at all, and what the phrase suggests must be asked afresh each time.
Two reasons explain why the question matters. A name is the first thing a prospective client sees, so the impression it forms arrives before the client can learn anything else about the firm, and a name that sounds like a government office or a legal aid program suggests a source, a cost, and a motive the firm does not have. A name that borrows the reputation of a lawyer who never belonged to the firm, on the other hand, trades on trust the firm has not earned. The Court has upheld one state's ban on optometrists' trade names in Friedman v. Rogers, on a record of deception specific to that profession. The general principle remains the one stated in R.M.J.: misleading advertising may be prohibited entirely, but a state may not absolutely prohibit a type of potentially misleading information that can also be presented without deception.9 Rule 7.1 accordingly asks whether a given name misleads. It does not forbid names by category.10
Each of the following connections would be a false statement of fact if the firm could not support it:
- an affiliation with a government agency, as when a name suggests the office is part of, or approved by, a public body;
- a link to a public or charitable legal services organization, as when a name suggests free or subsidized help;
- a tie to a deceased lawyer who was never a member of the firm;
- a tie to a lawyer who is not associated with the firm; and
- a tie to a nonlawyer, as when a name presents a consultant as if the person were a lawyer in the firm.
In each case a reader would weigh the implied connection in deciding whom to hire, which makes the misstatement material, and the reader has no practical way to check the claim before relying on it.11
A caller who sees that name reasonably infers that the office is part of, or sanctioned by, a government program, or that help there costs little or nothing. The name misrepresents both the firm's source and its cost, so it violates Rule 7.1 even though every lawyer in the office is licensed and the firm's advertising describes its work accurately.
Names built on deceased lawyers show how little the surface of a name settles.
The first name reports who is and was part of the firm, and nothing in it is untrue. The second borrows a reputation the practitioner did not inherit, so callers will assume a continuity of practice that never existed, and the name is misleading. On a letterhead the two look alike, since each carries the surname of a lawyer who has died. What separates them is whether that lawyer was ever a member of the practice using the name. Students err in both directions here, some treating any name that is not a list of living partners as forbidden and others assuming a name is acceptable because each surname in it is real.
Two further problems follow from the same test. A joint name such as “Park & Delgado,” or the word “firm” itself, tells a client that the lawyers practice together, so lawyers who merely share office space, a receptionist, or a conference room while keeping separate clients, files, and fees misstate their relationship if they present themselves under a common name. The standard looks at what the name conveys. It does not list actual deception of a particular client as an element, and each surname can be accurate while the joint form of the name is false.12 A geographic term calls for caution and not a flat prohibition. A practice located on a lake may say so, but “National Injury Attorneys” on a one-office practice implies a nationwide reach the firm lacks, and a name built around “State” or “Capitol” can read as a link to government. A reviewer treats the term like any other part of the name and asks what a reader would take from it and whether that impression is true.
Specialization and Certification
Claims about a lawyer's field of practice and credentials are communications about the lawyer's services, so Rule 7.1 governs them without any special test. The words a lawyer uses fall along a spectrum. At one end is a plain report of what the lawyer does. At the other is a claim that an outside body examined the lawyer and found the lawyer qualified, which compresses a verification the reader cannot perform alone. The law treats the two ends differently, and the Constitution limits how far a state may go in policing the second.
A lawyer may generally tell the public that the lawyer concentrates on a particular area of law, subject to the rules against false and misleading statements, so a lawyer who does mostly estate work or real estate transactions may say so.14 The constitutional cases protect the same freedom. In In re R.M.J., a lawyer was reprimanded for deviating from the precise list of practice areas in a state advisory committee's addendum. The committee did not argue that his listing was misleading, and the Court observed that “real estate” in place of “property” could scarcely mislead the public, that areas such as “contracts” or “securities,” absent from the list in any form, presented no apparent danger of deception, and that in some respects his listing was more informative than the approved one.15 The protection depends on accuracy, however. A lawyer who lists a field in which the lawyer does no work makes an untrue statement about the practice, because a reader takes “I concentrate in this field” as a report of the lawyer's actual caseload.16
The words “specialist” and “certified” carry a different message, and the rules restrict them more closely. Many states forbid “specialize” and its variants unless the lawyer has completed a certification or similar process approved by the state bar, and a lawyer may not represent that he or she is “certified as a specialist” unless a state agency or other organization has granted the certification.17 Illinois went further when Peel was decided. Its rule let a lawyer designate any area in which the lawyer concentrated or limited his practice, but except as the rule itself allowed, no lawyer could hold himself out as “certified” or a “specialist.”18 The difference in treatment follows from what each statement reports. “Concentrates in” describes what the lawyer does, which the lawyer knows firsthand. “Certified specialist” reports a conclusion reached by someone else, which a prospective client has no easy way to test. A lawyer who claims a certification that no one granted therefore makes a material misrepresentation of fact, the first limb of the Rule 7.1 definition.19
The constitutional boundary came in Peel v. Attorney Registration and Disciplinary Commission of Illinois. Peel's letterhead described him as “certified” by the National Board of Trial Advocacy (NBTA) and as “licensed” by Illinois, Missouri, and Arizona.20 The Illinois Supreme Court held that the First Amendment did not protect the letterhead because it was misleading in three ways. The first was that placing “certified” beside “licensed” could lead the public to believe Peel's authority to practice trial advocacy came solely from NBTA certification, since the statements failed to distinguish voluntary certification by an unofficial group from licensure by an official organization.21 The Court asked two questions: whether the statement was misleading, and, even if it was not, whether its potential to mislead gave the state an interest substantial enough to justify a categorical ban.22
The Court found that the facts on the letterhead were true and verifiable. NBTA had certified Peel as a civil trial specialist, and three states had licensed him. No one contended that any client was actually misled, and neither the disciplinary commission nor the state supreme court made a finding of actual deception. They concluded as a matter of law that any claim of being “certified” as a “specialist” was necessarily misleading absent an official state certification program, and the letterhead was not found to violate the rule aimed at misleading statements, the rule under which Peel was originally charged.23
The Court's answer to the quality objection connects to the earlier discussion of results claims. A claim of certification is not an unverifiable opinion about the ultimate quality of a lawyer's work, and it is not a promise of success. It is a fact, though one with multiple predicates, from which a consumer may or may not infer the likely quality of the lawyer's work in a given area.24 A reader who wants to test it can examine the certifier and its standards, whereas no one can test whether a lawyer is one of the best. Like a trademark, a certification is worth what the organization behind it is worth.25
The same opinion marks the other pole of the boundary. Some consumers will infer from a certification that the lawyer's qualifications exceed the general qualifications for bar admission, so a certificate from an organization that made no inquiry into the lawyer's fitness, or one that issued certificates indiscriminately for a price, could be misleading even if literally true.26 A truthful statement of certification by a sham organization would not necessarily receive First Amendment protection, and a state may require a lawyer who advertises “XYZ certification” to demonstrate that it is available to all lawyers who meet objective and consistently applied standards relevant to practice in the area.27
Each lawyer holds the certificate named, so each statement is literally true. The first card reports a fact about vetting by a real standard-setter, and a state could not ban it. The second card tells readers that someone with standards examined him when no one did, so a state may treat it as misleading. The two cards differ in a single fact, which is whether anything stands behind the certificate. A common exam error is to miss that fact in one direction or the other: one answer protects every certification claim because it is literally true, and the other lets a state ban every certification claim because some are shams. Peel supports neither answer.
Peel leaves the state with narrower tools. A state may not completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations like NBTA, but it may consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of the specialty.28 The Court reached a similar conclusion about targeted direct-mail solicitation, reasoning that possible isolated abuses or mistakes do not justify a total ban when the state can regulate through far less restrictive and more precise means, the most obvious being a requirement that the lawyer file the letter with a state agency.29 Both lines of authority prefer correcting a potentially misleading statement to suppressing it, a theme the next section develops.