Opinion Sets Parameters for Award, Settlement Advertising
By Gina Hendryx, OBA Ethics Counsel

The Legal Ethics Committee has prepared and the OBA Board of Governors has approved Legal Ethics Advisory Opinion No. 320 pertaining to the advertising of specific amounts obtained by jury verdicts or settlement negotiations. The advisory opinion states that an attorney may advertise jury awards and settlement amounts if specific requirements are met and disclaimers included.

JURY VERDICT AWARDS

The listing of a jury verdict amount must not violate the attorney’s duty of confidentiality under Rule 1.6 of the Oklahoma Rules of Professional Conduct (ORPC). Rule 1.6 prohibits the attorney from revealing information relating to the representation of the client unless the client consents to the disclosure. Before advertising an award, the attorney would be well advised to seek the written consent of her client for the use of the information.

The statement must be factually accurate. If you advertise that you obtained the “largest dog-bite verdict in Oklahoma County,” it should be true when advertised and the ad should indicate the date as of which this statement is true since someone else may have obtained a larger verdict since the ad was prepared.

The statement must include a disclaimer. The disclaimer is necessary so as not to create an unjustified expectation that similar results can be obtained for prospective clients. The disclaimer should include language that each case stands on its individual merits. The disclaimer language must be presented in the same manner and with the same emphasis as the statement to which it applies.

SETTLEMENT AMOUNTS

Like jury awards, attorneys may also list settlement amounts in advertisements. These advertisements must also not violate ORPC 1.6 (Duty of Confidentiality) and must be factually accurate.

Similar disclaimers must be included. With regard to settlement listings, the disclaimer must also contain information that settlements are the result of private negotiations between the parties involved and may be affected by factors other than the legal merits of a particular case.

It is the committee’s opinion that “statements concerning settlements must be much more stringently regulated than statements concerning verdicts.” Verdicts are public record while settlement agreements are usually the result of private negotiations, more difficult to confirm, and may be the subject of a confidentiality agreement.

Many other jurisdictions and state ethics committees have struggled with a lawyer’s right to advertise versus the protection of the public from unjustified expectations and misleading advertisements. The key factors when considering any type of legal advertising are that it not be false, misleading or deceptive. Careful attention should be given to the content of the ad. Is the information current, factually accurate and verifiable? Can claims made in ads be substantiated without violating client confidences and settlement agreements?

Finally, does the ad contain sufficient disclaimer language in the proper form and placement? A 2000 D.C. Ethics Opinion reviewed advertising on a firm’s internet Web site. The opinion stated that disclaimers should be readily available and not buried in links that are several clicks removed from the main page. District of Columbia Ethics Op. 301 (2000). The language of the disclaimer is important, but don’t neglect the type style, size and placement of the disclaimer. The full text of Legal Ethics Advisory Opinion No. 320 can be found at page 2571 in this issue of the Oklahoma Bar Journal.