Disclaimers: Better Safe Than Sorry

by Jimmy Bewley | September 30, 2012

During our September cj conference, we brought everyone up to speed on our philosophy and processes concerning disclaimers and the advertising rules.   Among ethics lawyers the advertising rules are sometimes affectionately referred to as the “The Magic 7s”…because in most states they’re found in Section 7 of the Rules of Professional Conduct.  That is except for CA, which always has to be a little different from everyone else.

On a daily basis we are working with the rules in about 71 markets in 32 states.  However, due to our national efforts we have studied and mastered all 50 states.   We consider the top 3 toughest jurisdictions to be Florida, Louisiana and Texas.

1.  Florida is currently in a state of flux somewhat based on recent challenges and may not stay at the top, but they have long been the leader of advertising restrictions.

2.  Louisiana, the new kid on the block, has within just in the past few years followed Florida’s rules adding their own little nuances.

3.  Coming in a strong third is Texas and they too have been fairly restrictive for quite some time.

We consider these 3 the “leaders of advertising restrictions” because their boards are active and they have aggressively stayed on top of the changes in media and technology and they continuously revise their rules to reflect those changes.  However, we certainly do not think they are most dangerous when it comes to compliance issues.  The vast majority of states do not account for the new trends or new technology.  Many do not even reference the internet, websites, not to mention Facebook, Twitter, LinkedIn, Google Plus and other forms of digital media.

So, here’s our process when it comes to disclaimers.

First, we review the rules to determine the approved or prohibited methods of communication.  For example, in Arkansas testimonials or endorsements are not allowed.

Rule 7.1 – A communication is false or misleading if it: (d) contains a testimonial or endorsement.

There’s no interpretation needed on whether you can or cannot have testimonials, although it can still be argued what defines or constitutes a testimonial.  But, that’s another subject.

Next, we break disclaimers down into 2 categories: Mandatory vs. Content.  Example, this is a mandatory disclaimer in Alabama.

No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

It must be included regardless of the media platform.

Content based would be something like this disclaimer used in South Carolina when the   “No Fee Guarantee” is included in an ad.

“Clients are responsible for case related costs in addition to the fee.  The attorney’s fee is calculated before expenses are deducted”.

If the “No Fee Guarantee” is not used, neither is the disclaimer.  The decision is based purely on the content involved.

Our philosophy is simply “Better Safe than Sorry”.  We believe most people are desensitized by disclaimers and the greater concern should be your compliance to your state’s advertising rules.