False, Misleading, and Worth Your Attention

Revisiting the ethical principles guiding Illinois Rule of Professional Conduct 7.1.

This August, the ABA's House of Delegates approved changes to the ABA Model Rules of Professional Conduct concerning communications about a lawyer's services, i.e. advertising. For a number of years, ethics-minded bar groups have discussed amending rules to address new forms of lawyer advertising. The specific amendments adopted by the ABA in August would reformat a number of advertising provisions. But most notably, they would expand certain permissible forms of person-to-person solicitation. Of course, any ABA Model Rules change has no effect in Illinois until the Illinois Supreme Court adopts it. When-or even whether-the supreme court might act is unknown. Relevant to this debate is that the ISBA filed formal comments raising concerns about the ABA's proposed changes.

What has not changed, and what is worth considering, is the fundamental principle set out in Illinois Rule of Professional Conduct (IRPC) 7.1-that lawyers may not make false or misleading communications about themselves, their practices, or their services. Given the ABA's recent action, revisiting this fundamental principle is worthwhile.

While the words "false and misleading" may sound like two sides of the same coin, they each cover broad sets of behaviors. What is "false" should be clear enough. For example, when seeking to represent clients in Illinois, if the lawyer says he or she is licensed to practice law in Illinois, when in reality he or she is not, the statement about Illinois licensure is false. Whether a communication is "misleading" may require a more nuanced analysis. The IRPC state a communication can be 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."

Clear misrepresentations

Illinois disciplinary decisions have identified a number of very clear instances of misrepresentation. These instances have involved:

• Office relationships (In the Matter of JFS, 01-CH-58 (Hearing Board, June 17, 2004) approved and confirmed M.R. 20117 (May 20, 2005), regarding an implied partnership where none existed);
• Inaccurate levels of experience (In the Matter of GAW, 04-CH-67 Petition for Discipline on Consent, M.R. 20082 (June 10, 2005), regarding a lawyer who had been licensed for seven years, but claimed 15 years of experience);
• Capabilities and skills (In the Matter of MS, 04-CH-97 Petition for discipline on consent, M.R. 20399 (November 11, 2005), regarding a lawyer who referred to himself as the "lion of the courtrooms" although he did not regularly appear in court or customarily litigate cases); and
• Creating a false sense of urgency to hire the lawyer (In re Komar, 125 Ill.2d 427 (1980), in which the court held that an advertisement that "contained statements which created an unrealistic sense of urgency and assurance that [the lawyer] would save them from foreclosure" was misleading).

Unjustified and unreasonable claims

Perhaps the most recognized example of an advertising misrepresentation is failing to adequately communicate accurate information about fees and expenses. The potential for misstating a lawyer's fee may require special attention today, when nonlawyers, e.g. lead generators, may be advertising the lawyer's fee. Accurately describing fees and expenses still remains the lawyer's obligation, and at least one ARDC disciplinary proceeding found that this obligation cannot be cured by post-retention discussions: "Any subsequent communications do not alter the fact that the Respondent used improper advertisements to attract business that otherwise may have gone to another attorney. The Rules of Professional Conduct do not allow such 'bait and switch' practices." In the Matter of AJR, 07-CH-96 (Review Board, Nov. 18, 2009) Respondent's petition for leave to file exceptions denied, M. R. 23585 (May 17, 2010).

Even truthful statements can be misleading, according to IRPC 7.1. While disciplinary treatment is sparse, Comments to Rule 7.1 provide helpful guidance. Comment [2] expresses the general concept that a truthful statement can be misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer's services for which there is no factual basis. Comment [3] addresses two specific categories of problematic advertisements: creating unjustified expectations and making unsubstantiated comparisons to other lawyers' services or fees. The most common iteration of the "unjustified expectations rule" is a lawyer's recitation of successful outcomes and the inference that other clients can expect similar success.

The "unsubstantiated comparison rule," designed in part to preserve the integrity of the bar in the eyes of the public, has been violated when a lawyer suggested in an advertisement that lawyers hired by insurance companies to defend their insureds could not be as loyal to a client as the advertising lawyer could be. In the Matter of MAS, 98 CH 93 (Hearing Board Dec. 17, 1999) and Hearing Board reprimand issued (Feb. 10, 2000). In both instances, however, Comment [3] sanctions the use of appropriate disclaimers as an acceptable means to avoid any misleading effect.

In addition to the substantive restrictions noted above, lawyers must recognize that the restrictions on communications are broad and apply no matter what the medium. While telephone directories, newspapers, radio, and television were once the focus of these rules, lawyers now have numerous additional opportunities to publicize their services on the internet and through social media. Even dispersed information that was not intended as advertising still may be subject to the professional standards of the IRPC. As such, lawyers need to remain vigilant when making statements about themselves, their professional successes, and the services they provide.

Charles J. Northrup is the ISBA general counsel.
cnorthrup@isba.org