New Jersey Considering Restrictions on Rules for Use of Testimonials in Attorney Advertising
The New Jersey Supreme Court is considering adopting proposed attorney advertising guidelines governing the use of client testimonials.
According to a story in today’s ABA eJournal report entitled, “A Tempest Over Testimonials” by David L. Hudson, Jr., the guidelines are largely the result of the ongoing efforts of a New Jersey firm to get clarification from the state’s Committee on Attorney Advertising about the use of client testimonials. After the committee issued several opinions over the past several years, the firm, Levinson Axelrod, requested a court review. The court requested that the committee put the issue in guideline form.
Levinson, Axelrod’s attorney has been in contact with the FTC, who has issued comments regarding the proposed guideline, and is apparently concerned that the guideline goes too far in banning testimonials that might provide valuable information to consumers of legal services. The FTC recommends a ban only where the testimonial is deceptive to consumers.
The guideline prohibits, among other things, testimonials which compare one lawyer to another, as well as testimonials which describe the work or the quality of the work that the lawyer has provided for the client. A client testimonial which discusses the lawyer’s professionalism, concern, or regular communication with the client would be permissible.
Comments were also submitted by the New Jersey Bar opposing the guideline as too restrictive.
If the guideline is accepted as it is currently worded, chances are that testimonials would become of little or no value. The restriction is so broad and leaves so little room for clients to comment that every lawyer would have the exact same, cookie-cutter, permissible testimonials which would ultimately be useless.
The ban on any discussion of the quality of work, regardless of the presence of a disclaimer, would prohibit any discussion of the client’s satisfaction (or even excitement) about the result a lawyer achieved. Although the rule appears to permit testimonials that discuss a vital aspect of the attorney-client relationship – client service – those testimonials would be limited to factual accounts, rather than any expression of feeling on the part of the client. Even sticking to ‘just the facts,’ the testimonial cannot discuss the work performed, and therefore cannot demonstrate by specific example how the client service was performed.
One of big the problems with a lot of law firm marketing is that the lawyers fail to adequately differentiate themselves – they fail to convey what it is that makes their law firm or the service they provide to clients unique. Website after website, brochure after brochure, and ad after ad proclaims that the firm provides “quality, responsive service.” This kind of watered down marketing message isn’t effective. Testimonials are a great way to give potential clients a glimpse, through the client’s words, of what the client experience is like with a particular firm – what is different about the firm and what makes clients happy about working with the firm. But the testimonials that would be permissible under this guideline can’t convey that information.
The proposed New Jersy rule appears to restrict not only the ability to discuss the quality of work and whether the client was satisifed with the result, but also anything that is unique about the firm – because demonstrating the firm’s uniqueness is, of necessity, implying that the firm is different, which runs afoul of the guideline’s prohibition on testimonials which “compare one lawyer to another.”
Lawyers need to identify what it is that they provide to their clients that nobody else provides, and this should be the central core of their marketing, including any testimonials or case studies that are used. If a client testimonial cannot specifically state the benefit that a client received from working with a lawyer, the testimonial is probably not worth the space.