The Florida Bar recently updated the guidelines that dictate past result advertisements. The update took place on February 19th, 2014 to rules established December 13th, 2013.
The rules state that advertising past results is misleading, unless the results are objectively verifiable.
The Bar classifies media into two categories: Unacceptable Media and Acceptable Media.
- Indoor and outdoor display
- Radio and television
- Direct mail
- Direct e-mail
- Print advertisements
The inclusion of past results in advertising carries a particularly high risk of being misleading. Such advertising will require the inclusion of more information than most types of advertising in order to comply with rules.
The Bar generally will not issue a notice of compliance for advertisements in such media that include references to past results for unacceptable media.
Inclusion of Material Information
An advertisement of past results that does not prominently disclose information necessary to prevent the advertisement from being misleading violates the rules. The following are examples of ads that would be a violation:
- Advertising that the lawyer obtained a $1 million judgment without disclosing that the fees and costs exceeded the amount of the judgment.
- Advertising that the lawyer obtained a $1 million judgment without disclosing that the defendant offered to settle for $2 million.
- Advertising a success at trial without disclosing that the judgment was overturned on appeal.
- Advertising a success percentage without disclosing material limitations on the types of cases accepted.
- Advertisement by a criminal defense lawyer that an acquittal on one or more charges was obtained without disclosing that the client was convicted of other crimes in the same case.
Advertising Dollar Amounts
When an advertisement includes a dollar amount and language or an illustration that indicates that a client has received the specific amount (“My lawyer got me $X” with a photograph of a person receiving money), the dollar amount must be the net amount received by the client.
The advertisement may include a disclaimer that states: “After deduction of attorneys’ fees and expenses.”
When an advertisement includes a dollar amount of a verdict, judgment or settlement and does not contain language or an illustration that indicates that a client has received such amount (“Law firm has obtained ten verdicts over $1 million”), the dollar amount may be the gross amount of the verdict, judgment or settlement.
In such case, the advertisement must include a prominent disclaimer that states: “Before deduction for attorneys’ fees and expenses.”
All advertisements that include a reference to a dollar amount in connection with a result must include the following disclaimer prominently displayed unless objectively verifiable documentation to the contrary can be produced: “Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.”
Specific Results Other Than a Dollar Amount
All advertisements that contain specific results that are not specific dollar amounts must also prominently display this disclaimer: “Results may not be typical. You may not have as beneficial a result.” For example, advertising a not guilty verdict, a dismissal of a traffic ticket, or a loan modification resulting in lower payments all would require the disclaimer above.
Aggregate Past Results
Statements regarding collective or aggregated results about the amount of recovery are impermissible because they are inherently misleading as there is no way for the viewer to know how many cases, clients, and/or lawyers are involved or the amounts and facts of individual matters that would permit consumers to make informed decisions regarding them.
Characterizing Results as a Success or Win
Results should not be characterized as wins unless such a characterization is not debatable. The following are examples of ads that would be a violation:
- Advertising a case as a win when there were opposing claims and mixed results.
- Advertising a case as a win when the judgment was for substantially less than was sought or less than a settlement offer.