January 2005
Featured Disciplinary Case
Topic
Misleading Advertising-Claims of Expertise that can not be Verified or Substantiated
Summary
In re PRB Docket No. 2002.093, 2005 VT 2 (Vermont, Jan. 11, 2005). An attorney described his law firm as "INJURY EXPERTS" in large capital letters placed at the top of a Yellow Pages advertisement that he placed. Below the description was a list of the firm's attorneys and a second, smaller caption reading "WE ARE THE EXPERTS IN" followed by three enumerated areas of law. Formal disciplinary charges were lodged alleging that the advertisement was misleading and violated Rule 7.1 of the Vermont Rules of Professional Conduct. He was not charged with violating Vermont Rule 7.4 dealing with the communication of the fields of practice. A hearing panel concluded that the phrase "THE EXPERTS" was "an implicit statement of superiority" as compared with other firms and thus violated Rule 7.1(c). The panel initially held, however, that the description was not "likely to create an unjustified expectation" about the results the lawyer could achieve. Therefore, the advertisement was therefore not misleading in violation of Rule 7.1(b). In taking this initial position on Rule 7.1(b), the panel was influenced by two factors. The first was the historical evolution of attorney advertising. As noted by the panel, in a relatively short time, the Bar had gone from an absolute ban on advertising to liberal rules that allow many different forms of marketing. Second, the panel focused on the consumer. Sophisticated advertising has become pervasive and the panel believed that today's consumer has also become much more sophisticated and discerning when reviewing advertising. Disciplinary Counsel filed a motion to reconsider the decision and was able to persuade the panel that the use of the term "expert" in the context of this particular marketing piece was likely to create an unjustified differentiation and expectation among those reading the advertisement about the results that could be achieved by a lawyer claiming to be an expert. Moreover, Disciplinary Counsel was able to assert successfully that factually substantiating a claim that one is an "expert" is problematic. The panel reversed its initial ruling in this regard and noted:
The Panel is troubled by the ramifications if its previous decision leads lawyers to conclude that they can label themselves, to continue the example, as "injury experts" without violating the Rule. Other practitioners in the field would then have to choose between also claiming to be "experts," or risk placing themselves at a competitive disadvantage. Upon reflection, we are persuaded that use of the term "expert" in this context benefits neither the Bar nor the consumer.
The Vermont Supreme Court upheld the panel's recommendation of an admonition. In doing so, the court reviewed the First Amendment commercial speech case law. The Court concluded that the ads were false or misleading because the claims could not be verified or substantiated and were likely to create an unjustified expectation about the results the lawyer could achieve. It should be noted that the firm revised its telephone book advertising and decided to remove the offending language in future editions after disciplinary investigation was instituted.
