Client Testimonials on Attorney Websites: Are They Ethical?

Ethics and attorney advertising: sticky, significantly different from one jurisdiction to another, and ever-evolving. And the ethics of promoting client reviews or testimonials gets special attention from many bars. Since displaying testimonials on a law firm website is so beneficial to your marketing, it will do you well to get to know what your bar allows so you can make the most of your client accolades.

Do Rules of Professional Conduct on Attorney Advertising Permit Use of Client Testimonials?

Yes — the RPCs governing most bars do allow you to display client testimonials on your law firm website. But restrictions and necessary disclaimers often apply, with a lot of variation among jurisdictions. I obviously can't address every U.S. jurisdiction here, but I will go over some rules as illustrations so you'll know what the main issues are and where to look in your own jurisdiction's rules to be sure your website complies.

ABA Model Rules of Professional Conduct Don't Say a Whole Lot on Client Endorsements

The American Bar Association Model Rules of Professional Conduct are often a good place to start when it comes to ethics rules on attorney advertising. A majority of states have adopted the ABA Model Rules of Professional Conduct in some form or another. And the ABA also provides some nice resources to help attorneys quickly see how their individual states' RPCs differ from the model RPCs. In particular, take a look at the Differences Between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct (updated June 2, 2016). I wouldn't rely solely on this document, which is not perfectly accurate (by my reading, anyway) and can quickly become outdated. But it's a great place to look to get a sense of how state rules depart from the ABA rules and where to check for possible disparities in the rules that apply to you.

In brief, an attorney's use of client testimonials, endorsements (by clients) or reviews in advertising is generally governed by Rule 7.1 on Communications Concerning a Lawyer's Services. The crux of RPC 7.1 is that it prohibits "false or misleading communication about the lawyer or the lawyer's services." But, importantly, the comments no longer suggest that client endorsements, in particular, are inherently likely to be misleading. In fact, the rule and comments don't directly address testimonials or client endorsements at all. Rather, they are presumed to permit testimonials, so long as they are truthful.

The FTC Weighs in on Testimonials in Favor of Attorneys

Permitting lawyers to display truthful testimonials is — as it so happens — consistent with Federal Trade Commission Rules on advertising. Did you know that your website is governed by the FTC? Yep it is. The FTC enforces, among other laws, the Truth in Advertising laws.

As a general rule, the FTC comes out on the side of testimonials, which it concludes are generally useful to consumers. In fact, a few years back in a staff comment on potential changes to New Jersey's attorney advertising guidelines, the FTC explicitly weighed in in favor of attorneys using client endorsements in their advertising. For, such endorsements "can convey valuable information to consumers and help spur competition" when they communicate "truthful, non-misleading claims about the nature of legal services, the quality of legal services, and comparisons between providers of legal services."

Upshot: Testimonials Are Generally Permitted; Disclaimers Are Required or Recommended, Depending on Your Jurisdiction

So where does that leave us? The upshot is that, under the ABA model rules — and consistent with Truth in Advertising and commercial free speech laws — truthful testimonials are generally fine. But, some states require specific disclaimers or otherwise regulate testimonials. And I, personally, recommend a disclaimer, regardless.

My recommendation that all attorneys include a disclaimer with client testimonials comes both from a better-safe-than-sorry attitude and Comment [3] to ABA Model Rule 7.1, which states:

An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case.

Although this Comment most squarely applies to sections of a website listing representative work — such as successful results at trial or settlement amounts — it certainly would also apply to a testimonial stating the outcome of the client's matter. Of course, most testimonials don't focus on specific outcomes, but are "soft" endorsements of a lawyer's positive qualities or express the client's general satisfaction (or relief!) when a matter has resolved. But, even in the latter cases, I think the best practice is to go ahead and include a disclaimer, consistent with the final line of Comment [3]:

The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.

Further, the vast majority of states to specifically address client testimonials in their RPCs require or recommend a disclaimer. A few examples of states that require particular disclaimers are:

• California — Requires an express disclaimer such as "this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter." Rule 1-400, Standard (2)
• Florida — Requires a disclaimer conveying that the prospective client may not obtain the same or similar results. Rule 4-7.13(b)(8)(F)
• New York — Requires the disclaimer: “Prior results do not guarantee a similar outcome." Rule 7.1(e)(3).
• South Carolina — Requires the advertisement to "clearly and conspicuously state that any result the endorsed lawyer or law firm may achieve on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients." Rule 7.1(d)(4)
• South Dakota — Requires a disclaimer substantively similar to the following: “This testimonial or endorsement does not constitute a guaranty, warranty, or prediction regarding the outcome of your legal matter.” Rule 7.1(c)(12)

Sample Disclaimers for Law Firm Client Testimonials

If you practice in a state that offers specific disclaimer language, of course your rules have you covered: you should include the required language. If the placement of the language isn't specified by the rule, The Modern Firm generally recommends that you include it on the page of your website where all of your testimonials are listed. And, pro tip from lawyer coach and advisor Roy S. Ginsburg, J.D.: as many rules advise explicitly, use a legible font that doesn't overly minimize the disclaimer. For our attorney websites, we also usually include the following statement on the general disclaimer page: "Nothing on this site predicts or guarantees future results."

If your bar rules suggest that a disclaimer is useful to cure anything potentially misleading, but they don't offer specific language or a hard rule on whether a disclaimer is required, we often recommend language such as:

And here is a variation for firms that also want to direct clients to stellar reviews on third party sites (each third party site name should link to the firm's profile on that site):

Do Any States Prohibit Lawyers from Using Client Testimonials or Endorsements Altogether?

Despite that use of client testimonials is widely considered to be ethical (within bounds), our attorney clients tell us fairly often that they think their bars might prohibit the use of client testimonials. They thus often rule out testimonials as a feature of their websites, likely to their own detriments! So, we looked into it. Thus far, the only state I've come across that still appears to prohibit testimonials altogether is Arkansas. The black letter of Arkansas RPC 7.1 unequivocally states: "A communication is false or misleading if it: ... (d) contains a testimonial or endorsement." And yet ...

If you dig into the comments, you'll find evidence of deviation from the letter of the rule. Comment [1] states, instead, that the prohibition on statements creating "unjustified expectations" would "ordinarily preclude" (not outright preclude?) client endorsements because they "may" create unjustified expectations. And Comment [2] goes on to say that an "appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public." 

The comments are thus consistent with the majority of RPCs allowing testimonials so long as the advertisement does not, overall, create unjustified expectations.

Now, Antonin Scalia would have said you're nuts to ignore the black letter of anything, regardless of evidence of its liberal interpretation by others. Whereas, when technology and social conventions make it hard for formal rules to catch up to common practice, many a good marketer — and, indeed, even an ethical one — would tell you not to hamstring your practice by following a rule that is effectively null as evidenced by the very comments to the rule. Suffice to say: if you're an Arkansas lawyer who gets to the bottom of this by calling your ethics hotline or requesting an advisory ethics opinion on the matter, I'll be your best friend if you email me to let me know what they say!

Can a Lawyer Pay Clients for Positive Reviews?

You might be surprised that many bars' ethics rules permit you to give cash or other items of value for client testimonials. Many RPCs, like the model rules, are simply silent on the matter. Here, again consistent with FTC rules on use of endorsements in advertising, the best advice is that you should clearly state when value has been given for a testimonial, consistent with the rules that expressly address the matter. (Importantly, note that, although ABA model rule 7.2(b) states that a lawyer generally "shall not give anything of value to a person for recommending the lawyer's services," this rule is commonly applied only to recommendations by other professionals or referral services.)

Just some of the state bars that expressly require attorneys to identify paid testimonials (and thus implicitly permit them) are: Georgia (Rule 7.2(c)(3)), Louisiana (Rule 7.2(c)(1)(H)), Missouri (Rule 4-7.1(h)), Montana (Rule 7.1(h)), New York (Rule 7.1(c)(1)), Pennsylvania (Rule 7.2(e)), South Carolina (Rule 7.1(d)(2)), South Dakota (Rule 7.1(c)(13)), and Wisconsin (Rule 20:7.1(d)).

Florida is a good example of a state that still appears to prohibit outright the use of paid testimonials as inherently misleading:

Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain: ...

(8) a testimonial: ...

(E) in exchange for which the person making the testimonial has been given something of value [Rule 4-7.13(b)(8)(E)] 

Keep in mind that these rules generally explicitly or implicitly refer to an attorney (to use the words of the South Dakota rule) giving or exchanging, "directly or indirectly," "anything of value." In other words, credits against a client's account, discounts on services, or other items of value all count.

Other Restrictions on Client Testimonials

Some states restrict the use of testimonials in other ways. For example, Florida expressly prohibits a lawyer from displaying a testimonial that has been "written or drafted by the lawyer" (Rule 4-7.13(b)(8)(C) & (D)). States including New York require that, if a testimonial is given by a client whose matter is still pending, the client give informed consent in writing (Rule 7.1(e)(4)). Many states include instructions that might seem obvious, such as that testimonials must be from actual clients (or, in some jurisdictions, that testimonials from non-clients must be clearly identified as such) and be based on their actual experiences with the attorney. Some also impose specific rules on the location or font size of disclaimers.

What About Reviews of an Attorney on Social Media or Other Third-Party Websites Like Avvo, LinkedIn, or Google?

So, what about reviews of attorneys on sites like Avvo, LinkedIn, Google, Yelp, Martindale-Hubbell, etc.? As many of us have learned (some painfully), you usually have no control over which reviews are displayed or whether disclaimers are provided. Whether and how attorney ethics rules apply to such sites is an evolving hot topic beyond the scope of this post. But, as bar committees, courts, and other commentators have begun grappling with these issues, a central distinction to emerge is between sites over which the attorney being reviewed has little or no control (e.g. Yelp) and those for which you have some control (e.g. you have affirmatively claimed your profile) including, in particular, those where you actively pay for marketing or referral services. And the review sites, themselves, often have rules or functions that may affect this calculation. For example, Google encourages you to actively request reviews and Avvo provides a platform for you to directly ask for them through its site. Contrast Yelp, which actively discourages you from soliciting reviews in any way.

For the sites that offer control or engagement, attorneys are often deemed responsible for at least some of the content displayed. See, for example, New York RPC 7.1, which states that a lawyer shall not "use or disseminate or participate in the use or dissemination of" unethical advertising (emphasis added). The best advice for the moment is to stay tuned and pay attention to what the ABA and your bar or state supreme court are saying on the matter.

Can we help? The Modern Firm is a big believer in the effectiveness of using client testimonials to promote your legal services and we work with our website design clients on collecting client testimonials and displaying them in ways that are eye catching, tasteful and ethical. Our marketing team also works with clients on strategies to collect and manage online reviews. Get in touch to tell us about your needs.