6
Jun/03

May Lawyers Advertise Using Lies, Damn Lies or Statistics?


John Baden of Kenyon brought this interesting attorney advertising case to the attention of the INTA list yesterday: 

“[A] recent decision (published in BNA PCTJ 66,48(May 9, 2003)), held that “It is misleading and self-laudatory for an Ohio law firm to provide prospective clients or other firms with statistics about the number of intellectual property matters won, lost, and settled by the firm, the Ohio Supreme Court’s ethics panel advised April 11 (Ohio Supreme Court Board of  Commissioners on Grievances and Discipline, Op. 2003-2, 4/11/03).”

Apparently, the inquiring law firm wanted to distribute statistics about the number of intellectual property matters won, lost, and settled by the firm,  including all results, both unfavorable and favorable, ostensibly as “historical data, not predictors of the future outcome of any particular case.” “The board observed that the Ohio Code of Professional Responsibility forbids a lawyer to use any form of public communication that contains any “false, fraudulent, misleading, deceptive, self-laudatory, or unfair statement,” or that contains any “unverifiable” claim. Although the Ohio ethics code does not ban the use of statistics, they must be verifiable and their use must not be misleading, self-laudatory, or unfair, the board said.”

“The board concluded that it is likewise improper under the advertising rules to list statistics about the number of wins, losses, and settlements in intellectual property matters. Such statistics imply that wins and losses depend solely upon the firm’s skill and expertise rather than upon the merits, the board found. It also said that the firm’s proposed use of the statistics would be self-laudatory and would create unjustified expectations that the firm is able to control case outcomes.”

Still, like a pitcher’s win/loss record, taken together with his ERA and his batting average against, there will be some correlation to skill.  However, what might not be clear to the client, is that the perfect record would be no wins, no losses, all settled.

Photo of Greg Maddux, a pitcher with a good winning record, from Starwave.com.

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