It’s permissible to use a client testimonial in a lawyer ad. It’s allowable to use an actor in a lawyer ad if it contains the appropriate disclaimers.
So is it allowable to use an actor to read the client’s testimonial in an ad if the ad contains disclaimers that an actor is used and the reading is a dramatization?
No, said the Bar Board of Governors, reaching the same conclusion as Bar staff and the Standing Committee on Advertising when they reviewed the ad.
At issue were two proposed TV ads from a law firm.
One contained this testimonial: “When I was injured in my car accident, my first thought was: How will I be able to take care of my family? That’s why I called the law offices of (name withheld). They made sure I could continue to take care of my family with $650,000 in insurance compensation for my car accident injuries.”
The second had this testimonial: “I love sports — baseball, soccer, all kinds of sports, but after my car accident, I wasn’t sure if I would be able to enjoy playing sports again. I called the law offices of (name withheld) and they helped get me back in the game with a $100,000 insurance settlement.”
Board member Carl Schwait, chair of the Board Review Committee on Professional Ethics, said the committee voted 7-2 to recommend the ads violate Bar Rule 4-7.13 on deceptive and misleading ads.
Rule violations, Schwait said, occur because the testimonials appear to have been drafted or edited by the law firm; the speakers are not relating their own experiences; the speakers are not qualified to evaluate the law firm; and the speakers received compensation.
Board member Dennis Kainen said he was one of the two votes on the BRCPE to allow the ads.
“What we’re trying to do always is protect the public, and the question is: Is the public not being protected when you have an ad where people are saying the exact words of individuals who are providing a testimonial for the lawyer who represented them?” Kainen said.
“We have to permit ads; we also know that we have to permit testimonials. In this case, is the public going to be misled because there is an actor repeating what the testimonial says? … To think the public is misled is really a disservice to the public,” he said.
Committee member Gary Lesser disagreed. “I don’t think we’re insulting members of the general public by enforcing our rules, which are really, really clear,” he said. “This is facially deceptive.”
But committee member Michael Hooker said the ad violates the strict construction of the rule.
“It contains a testimonial that is not the actual experience of the person making the testimonial,” he said.