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Prof Responsibility • Advertising and Solicitations
PR#007
Legal Definition
In California, communications are presumed to be false and misleading under Business and Professions Code § 6158.1 in the following circumstances:
(a) The communication contains an express guarantee or warranty of the result of a particular representation.
(b) A truthful statement is made but omits a necessary fact that makes the communication as a whole not materially misleading.
(c) A truthful statement is presented in a manner that creates a substantial likelihood of leading a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable foundation.
(d) A communication that states or implies "no fee without recovery" without also expressly disclosing whether the client will be liable for costs if no recovery is obtained.
(e) A communication that states or implies that the lawyer can provide legal services in a language other than English when neither the lawyer nor their employees can actually provide those services in that language.
(a) The communication contains an express guarantee or warranty of the result of a particular representation.
(b) A truthful statement is made but omits a necessary fact that makes the communication as a whole not materially misleading.
(c) A truthful statement is presented in a manner that creates a substantial likelihood of leading a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable foundation.
(d) A communication that states or implies "no fee without recovery" without also expressly disclosing whether the client will be liable for costs if no recovery is obtained.
(e) A communication that states or implies that the lawyer can provide legal services in a language other than English when neither the lawyer nor their employees can actually provide those services in that language.
Plain English Explanation
There are many ways that you can argue that a statement is a lie or misleading, but California recognizes a few types of statements that are so obviously shady that they are, by default, considered "false and misleading." They are:
(a) Overly confident gurantees about the outcome of a case (this is why when clients ask attorneys, "Will we win?" the answer is, "We don't know, but I feel the case is strong." Ultimately, there are many factors that go into winning a court case and many are outside of the control of an attorney, so giving false hope is not allowed.
(b) If a laywer says, "I have won 100% of my cases," but they actually lost 1, this is a clear lie. But imagine if you needed a lawyer for a super specific type of lawsuit, like medical malpractice, and an attorney told you, "Don't worry, I've won 95% of the cases I try!" In reality, you find out that the lawyer has won 95% of the cases they try, but those cases all involved simple, basic littering and traffic ticket issues. More importantly, the 5% of cases the lawyer has lost are all medical malpractice. Technically, the lawyer didn't lie to you, but because they omitted important information in their statement, like "I've won 95% of the cases I try, but none of them were like yours, and the ones like yours I lost," it is materially misleading.
(c) Sometimes even truthful statements can be misleading if their purpose is to cause a potential client to interpret that statement in a way that results in them being misled. Like if an attorney tells a potential client, "I was able to get each of my client's $10 million settlements last year." This isn't a gurantee, so it doesn't violate the first example. And it may actually be true and not omitting any material information. But there is obviously a substantial likelihood that when the potential client hears this, they will think, "Oh, wow, that means they can get me a $10 million settlement, too!" It's like a sneakier way of offering a gurantee without explicitly saying it.
(d) There are a lot of costs associated with a lawsuit, and many of them are not just the fees you pay to an attorney. It's sort of like if a restaurant told you, "You can have dinner here for free!" but then, at the end of the meal, you are still expected to pay taxes and tip. Technically the Restaurant didn't charge you any money, but the meal was not completely free. Similarly, the law doesn't want people to feel like they aren't on the hook for any and all costs associated with a lawsuit even if the attorney is willing to not charge.
(e) Lastly, and most obviously, if you can't speak Spanish (or another language) you're not allowed to trick Spanish speakers into hiring you to represent them.
(a) Overly confident gurantees about the outcome of a case (this is why when clients ask attorneys, "Will we win?" the answer is, "We don't know, but I feel the case is strong." Ultimately, there are many factors that go into winning a court case and many are outside of the control of an attorney, so giving false hope is not allowed.
(b) If a laywer says, "I have won 100% of my cases," but they actually lost 1, this is a clear lie. But imagine if you needed a lawyer for a super specific type of lawsuit, like medical malpractice, and an attorney told you, "Don't worry, I've won 95% of the cases I try!" In reality, you find out that the lawyer has won 95% of the cases they try, but those cases all involved simple, basic littering and traffic ticket issues. More importantly, the 5% of cases the lawyer has lost are all medical malpractice. Technically, the lawyer didn't lie to you, but because they omitted important information in their statement, like "I've won 95% of the cases I try, but none of them were like yours, and the ones like yours I lost," it is materially misleading.
(c) Sometimes even truthful statements can be misleading if their purpose is to cause a potential client to interpret that statement in a way that results in them being misled. Like if an attorney tells a potential client, "I was able to get each of my client's $10 million settlements last year." This isn't a gurantee, so it doesn't violate the first example. And it may actually be true and not omitting any material information. But there is obviously a substantial likelihood that when the potential client hears this, they will think, "Oh, wow, that means they can get me a $10 million settlement, too!" It's like a sneakier way of offering a gurantee without explicitly saying it.
(d) There are a lot of costs associated with a lawsuit, and many of them are not just the fees you pay to an attorney. It's sort of like if a restaurant told you, "You can have dinner here for free!" but then, at the end of the meal, you are still expected to pay taxes and tip. Technically the Restaurant didn't charge you any money, but the meal was not completely free. Similarly, the law doesn't want people to feel like they aren't on the hook for any and all costs associated with a lawsuit even if the attorney is willing to not charge.
(e) Lastly, and most obviously, if you can't speak Spanish (or another language) you're not allowed to trick Spanish speakers into hiring you to represent them.
Hypothetical
Hypo 1: Bob, a personal injury attorney, runs a TV commercial that boldly states, "I guarantee you'll win your case or you don't pay a dime!" Sam, who was recently injured in a car accident, sees the ad and decides to hire Bob based on this promise. Result: Bob's advertisement violates the California rule because it contains an express guarantee of the result of his representation. This type of absolute promise is presumed to be false and misleading, as no lawyer can truly guarantee the outcome of a case. The rule exists to prevent potential clients like Sam from being misled by unrealistic expectations.
Hypo 2: Bob creates a radio ad for his law firm that states, "We've won millions for our clients! No fee unless you win!" Sam hears this and decides to hire Bob for his workplace injury case. When Sam loses the case, Bob informs him that he still owes $5,000 in court filing fees and expert witness costs. Result: Bob's advertisement violates the California rule because it states "no fee unless you win" without expressly disclosing that the client may still be liable for costs even if no recovery is obtained. This omission is presumed to be false and misleading, as it could lead potential clients like Sam to misunderstand the financial risks involved in pursuing a case.
Hypo 3: Bob, who only speaks English and has no bilingual employees, creates a billboard advertisement in Spanish that says, "¡Hablamos Español! Llámenos hoy para su consulta gratuita." (We speak Spanish! Call us today for your free consultation.) Sam, a Spanish-speaking immigrant, sees the ad and calls Bob's office for help with his immigration case. Result: Bob's advertisement violates the California rule because it implies that he can provide legal services in Spanish when neither he nor his employees can actually provide those services in that language. This is presumed to be false and misleading, as it could lead Spanish-speaking clients like Sam to hire Bob under false pretenses, potentially compromising their ability to effectively communicate about their legal matters.
Hypo 4: Bob creates a website for his law firm that includes a page titled "Our Results." On this page, he lists several large settlements and jury verdicts he's won for past clients, including specific dollar amounts. He doesn't include any disclaimer or explanation about these results. Sam, looking for a lawyer for his medical malpractice case, sees these results and decides to hire Bob. Result: While Bob's advertisement doesn't explicitly violate any of the presumptively false and misleading categories, it could still be considered misleading under the California rule. The rule states that a truthful statement presented in a manner that creates a substantial likelihood of leading a reasonable person to formulate a specific conclusion about the lawyer's services, for which there is no reasonable foundation, is presumed to be false and misleading. By listing only his successful cases without context, Bob may be creating an unrealistic expectation of similar outcomes for all clients, which could be misleading to potential clients like Sam.
Hypo 5: Bob creates a simple business card that includes his name, "Attorney at Law," his office address, phone number, and email address. He hands these out at a local business networking event, where he meets Sam. Result: This scenario does not violate the California rule on false and misleading communications. Bob's business card contains only factual information about his practice and does not make any claims or guarantees about his services. It doesn't omit necessary facts, imply services in other languages, or make statements about fees or results. This type of basic, informational advertising is permissible and not presumed to be false or misleading under the California rule.
Hypo 2: Bob creates a radio ad for his law firm that states, "We've won millions for our clients! No fee unless you win!" Sam hears this and decides to hire Bob for his workplace injury case. When Sam loses the case, Bob informs him that he still owes $5,000 in court filing fees and expert witness costs. Result: Bob's advertisement violates the California rule because it states "no fee unless you win" without expressly disclosing that the client may still be liable for costs even if no recovery is obtained. This omission is presumed to be false and misleading, as it could lead potential clients like Sam to misunderstand the financial risks involved in pursuing a case.
Hypo 3: Bob, who only speaks English and has no bilingual employees, creates a billboard advertisement in Spanish that says, "¡Hablamos Español! Llámenos hoy para su consulta gratuita." (We speak Spanish! Call us today for your free consultation.) Sam, a Spanish-speaking immigrant, sees the ad and calls Bob's office for help with his immigration case. Result: Bob's advertisement violates the California rule because it implies that he can provide legal services in Spanish when neither he nor his employees can actually provide those services in that language. This is presumed to be false and misleading, as it could lead Spanish-speaking clients like Sam to hire Bob under false pretenses, potentially compromising their ability to effectively communicate about their legal matters.
Hypo 4: Bob creates a website for his law firm that includes a page titled "Our Results." On this page, he lists several large settlements and jury verdicts he's won for past clients, including specific dollar amounts. He doesn't include any disclaimer or explanation about these results. Sam, looking for a lawyer for his medical malpractice case, sees these results and decides to hire Bob. Result: While Bob's advertisement doesn't explicitly violate any of the presumptively false and misleading categories, it could still be considered misleading under the California rule. The rule states that a truthful statement presented in a manner that creates a substantial likelihood of leading a reasonable person to formulate a specific conclusion about the lawyer's services, for which there is no reasonable foundation, is presumed to be false and misleading. By listing only his successful cases without context, Bob may be creating an unrealistic expectation of similar outcomes for all clients, which could be misleading to potential clients like Sam.
Hypo 5: Bob creates a simple business card that includes his name, "Attorney at Law," his office address, phone number, and email address. He hands these out at a local business networking event, where he meets Sam. Result: This scenario does not violate the California rule on false and misleading communications. Bob's business card contains only factual information about his practice and does not make any claims or guarantees about his services. It doesn't omit necessary facts, imply services in other languages, or make statements about fees or results. This type of basic, informational advertising is permissible and not presumed to be false or misleading under the California rule.
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