Celebrity Client Testimonials — NYSBA Opinion 792/2006 | New York Legal Ethics Reporter

Celebrity Client Testimonials — NYSBA Opinion 792/2006

By Lazar Emanuel

[Originally published in NYPRR April 2006]

Opinion 792 — 2/14/2006

In Opinion 792, the Committee asked three questions concerning the use by a lawyer of a radio or TV testimonial by a celebrity client. Presumably, a celebrity client is one whose voice, face or name would be immediately recognized by people in the audience. The questions asked by the Committee were:

1. May a lawyer advertise by using a celebrity client to express the client’s satisfaction with the lawyer’s services?

2. If so, may the celebrity client be identified by name?

3. May the lawyer pay the celebrity client for the client’s time and services in recording the testimonial?

In reaching the answers to these questions, the Committee reviewed three of its prior Opinions. In Opinion 614 (1990) the Committee concluded that client testimonials could be presented by a lawyer, provided they did not contain “…statements of ‘overblown assurances of client satisfaction,’ statements that create unjustified expectations of ‘false hopes’, or statements that fail to contain sufficient information, thus rendering the statement false, deceptive or misleading.”

In order to avoid misleading the audience, the lawyer should attach to the client’s endorsement, a disclaimer stating in effect that the endorsement does not guarantee or predict a similar outcome in any future matter in which the lawyer is retained.

At the time of Opinion 614, DR 2-101(B) prohibited ads that contained “puffery, self-laudatory claims regarding the quality of the lawyer’s legal services, and claims that cannot be measured or verified.” DR 2-101(B) was repealed in 1999. Following the repeal, the Committee issued Opinion 771 (2003) which dealt specifically with client testimonials on the Internet. Concerned again that a testimonial without a disclaimer might mislead an unsophisticated potential client, the Committee in Opinion 771 said:

Accordingly, to determine whether a disclaimer is necessary in any advertisement that includes client testimonials or reports of past results, the lawyer must determine whether, without a disclaimer, the testimonials or past results render the advertisement false, deceptive or misleading in violation of DR 2-101(A).

In its current Opinion 792, the Committee again said (quoting Opinion 771) “compliance with DR 2-101(A) may require additional cautionary language if the testimonial … is misleading for reasons beyond the report of a positive outcome.” The Committee continued: “If a true, non-deceptive celebrity client testimonial is misleading, the law firm should determine whether a disclaimer accompanying that trial testimonial could be fashioned that would dispel the otherwise misleading quality of the testimonial.”

Because the identity of a celebrity witness would be disclosed by his or her face or voice, the Committee concluded that it was proper also to identify him or her by name.

But the Committee warned against paying the celebrity client for the testimonial.

We consider the celebrity client’s testimonial a recommendation of employment and, therefore, payment of the celebrity client by the lawyer or law firm would violate DR 2-103(B).

The Committee rejected the argument that payment to the celebrity was “merely payment of the cost of the advertisement” or payment “for the celebrity’s time and services.” The Committee distinguished between actors employed to read an ad and celebrity clients.

“…when the celebrity is the person actually making the recommendation, he or she is more than an actor with respect to the testimonial; the celebrity is the client making the recommendation.” This might “create the evil at which DR 2-103(B) is directed — a nonlawyer ’s having ‘an incentive to refer to lawyers who will pay the highest referral fee, rather than to lawyers who can provide the most effective services’”(quoting Restatement Third, The Law Governing Lawyers §10, cmt. d (2000).

The Committee reminded lawyers that New York’s Code imposes “certain record-keeping and other requirements upon lawyers who engage in any radio and television advertising” (DR 2-101(F), DR 2-101(K).

Lazar Emanuel is the Publisher of NYPRR

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Lazar Emanuel