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                                         2 N.J.L. 588
                                        April 12, 1993

                                        133 N.J.L.J. 1370
                                        April 5, 1993


Appointed by the New Jersey Supreme Court



    The Committee has received an inquiry from an attorney whose practice is limited to collection matters. He states that he would like to send general solicitation letters to collection agencies inviting them to send him claims on behalf of creditors located throughout the country. The creditors are either businesses or medical providers such as doctors or dentists who have provided goods or services to debtors who either reside or maintain business offices in New Jersey. Inquirer asks whether he may attach testimonial letters from current and former clients attesting to his abilities.
    According to Inquirer, "collection agencies are sophisticated in the art of collecting claims or in the alternative, forwarding them to attorneys for possible legal action. They are aware that their collection results depend on many factors." Among these factors are the extent and quality of the creditor's efforts; the age, size and nature of the claim; and whether or not the claim is disputed. Inquirer further states that the agencies are also aware that the results attorneys achieve are a function of these same factors. Therefore, he argues, the collection agencies would not be misled by client testimonials.

    Testimonials have traditionally been prohibited on the grounds that they create unjustified expectations about results the lawyer can achieve. RPC 7.1(a)(2). The primary objection has been that statements of satisfaction about results obtained or the lawyer's services tend to mislead the public into believing that similar results can be achieved for them. An additional objection has been that claims regarding the quality of the lawyer's legal services cannot be measured or verified. Suffolk County (New York) Ethics Opinion 85-11 (1985); Moss, "Law Practice Marketing," 61 Notre Dame L. Review 601, 621 (1986).
    Although the content of testimonial advertising may in some cases create unjustified expectations, the technique is not inherently misleading. The fact that such advertising may tend to mislead the public or present lawyers with opportunities for isolated abuses or mistakes does not justify a total ban on this mode of protected commercial speech. Cf. Shapiro v. Kentucky Bar Ass'n., 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed. 2d 475 (1988). There are less restrictive and more precise means through which such potential abuses may be regulated. Id.
    In the context of advertising, a testimonial is commonly understood to be a first-hand expression of appreciation. If it is to be a truthful statement about the lawyer's services, as required by RPC 7.1(a)(1), it must be uttered by or quoted from an identifiable person who actually received those services. Consequently, a testimonial may not be employed unless the statement has been uttered by an actual named client who has received the lawyer's services.
    Model Rule of Professional Conduct 7.1(b), the equivalent of our RPC 7.1(a)(2), would nevertheless prohibit the use of client testimonials. The Comment to Model Rule 7.1(b) provides that:
        Statements that may create "unjustified expectations" would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.

However, we remain convinced that a total ban on this mode of advertising is both unjustified and unwarranted. Although generally disfavored, disclaimers are less restrictive and a more precise means through which any potential abuses may be regulated. Shapiro v. Kentucky Bar Ass'n, supra, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed. 2d 475.
    Statements regarding past performance may well create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances. Yet, any requirement that a disclaimer or disclosure recite the specific facts and legal circumstances peculiar to an individual matter would be unduly burdensome. Therefore, we believe that the following, more generic disclaimer will address these concerns: "Results may vary depending on your particular facts and legal circumstances." This disclaimer must be prominently and effectively displayed in all print and television advertising. In order to reinforce this message, the disclaimer must also be recited by the narrator at least once prior to the conclusion of a television or radio advertisement. In circumstances such as those presented here, the attorney should include this disclaimer in any general or targeted direct-mail solicitation letter and/or make certain that it is included and prominently displayed in the body of the testimonial letter itself.

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