Your Results May Differ

A law firm’s website advertises the services of a commercial litigator in the firm. The website touts the lawyer’s past successes, including:

1.    “Won a $2.1 million jury verdict for the plaintiff in a case involving a partnership dispute.”
2.    “Obtained an $8 million settlement in a case between two companies in which the plaintiff company made fraud claims.”
3.    “Negotiated a $450,000 net recovery in a contract dispute in arbitration.”
4.    “Obtained a permanent injunction against a former employee under a non-compete agreement.”
5.    “Served as local counsel in an appeal in which a $5 million tortious interference judgment was affirmed.”
6.    “Obtained a defense jury verdict of no liability in a case alleging $15 million in damages.”

Which of these descriptions of past successes is proper under the Texas lawyer advertising rules?

A.    #1, #5 and #6 are proper, but the rest are improper.
B.    #3 and #4 are proper, but the rest are improper 
C.    #4 is proper, but the rest are improper.
D.    #2 and #4 are proper, but the rest are improper.
 

Rule 7.02(a) of the Texas Disciplinary Rules of Professional Conduct provides:

A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it:

(2) contains any reference in a public media advertisement to past successes or results obtained unless

• (i)    the communicating lawyer or member of the law firm served as lead counsel in the matter giving rise to the recovery, or was primarily responsible for the settlement or verdict,
• (ii)    the amount involved was actually received by the client,
• (iii)    the reference is accompanied by adequate information regarding the nature of the case or matter and the damages or injuries sustained by the client, and
• (iv)    if the gross amount received is stated, the attorney’s fees and litigation expenses withheld from the amount are stated as well;

Consider each of the website’s description of past successes in light of Rule 7.02(a)

1.    This description is improper because the reference to the jury verdict alone does not identify the net recovery by the client.  Further, it is misleading if the jury verdict was or could be reduced or set aside by the trial court or an appellate court.

2.    This description is improper because it does not identify the net recovery by the client.

3.    This description is proper because it reports the net recovery by the plaintiff, and the nature of the plaintiff’s claim is adequately described.

4.    This description is proper because, even though there was no monetary recovery, the successful permanent injunction in a non-compete dispute constitutes a “past success” and the matter is adequately described.

5.    This description is improper for two reasons:  (1) the advertising law firm served only as local counsel, not lead counsel; and (2) the net recovery to the client (or alternatively, the attorney’s fees and expenses) are not identified.

6.    This description is improper because it includes no information describing the “nature of the case.”  

Therefore, only results #3 and #4 are proper.