A Caution for Legal Advertising

There’s an interesting article in today’s ABA Journal E-Report about a Colorado case involving lawyer advertising.  Here’s the link to the opinion of the Colorado Supreme Court.  The case demonstrates once again that attorneys must take care in crafting their marketing messages, not just for fear of malpractice or ethical violations, but also to ensure they are in compliance with state consumer protection statutes. 

While differentiating oneself from the competition is necessary, attorneys must ensure that the claims they make in advertisements reflect reality in how the firm conducts itself and its practice and in the results it can achieve for its clients.  No matter what the outcome of this particular case, promising a specific result, either in an advertisement or in any client consultation, is an invitation for trouble.  While there does not seem to have been a specific result guaranteed in this case, the court has at least determined that the question of whether the advertising was deceptive should not have been dismissed outright.

The article and the decision are must-reads for any lawyer, but the bare bones of the case involve a personal injury plaintiff who sued his attorney claiming he was forced into an early settlement of his case for less than full value, and that the case was not yet ripe for settlement at the time because (among other reasons) the plaintiff had not yet reached maximum medical improvement. 

In addition to claims of malpractice, the lawsuit alleged a breach of the Colorado consumer protection law and breach of fiduciary duty.  The plaintiff alleged that the defendant law firm acquired their clients by misleading advertisements promising high quality legal services and full value settlements, but then short-changed clients by settling cases early and cheaply, without having to spend time or money working up the cases.

The trial court dismissed all but the legal malpractice claims, stating that they were duplicative.  One of the arguments at the trial level was that the consumer protection law did not apply since the plaintiff’s claims arose out of the negotiation of the settlement, not the attorney’s advertising.

The Colorado Supreme Court disagreed, stating in part that there was nothing in the consumer protection statute that distinguished between the ‘entrepreneurial aspects’ of the practice of law and the ‘actual practice of law,’ and that the issue of whether there was a violation of the consumer protection law should have been submitted to the fact finder for determination.

There has been no determination as to whether the advertising in question did violate the Colorado statute.  The court specifically noted in its opinion that in order be liable under this particular statute, there would have to be a showing that the lawyer did not intend to make good on the claims made in the ads, as distinguished from acting negligently in attempting to bring about the result.  Furthermore, in order to make a claim under the Colorado consumer statute, the plaintiff would have to show an injury to the public, and not just the individual plaintiff, as a result of deceptive trade practices.