There is a local attorney I know who shows up in my social media feeds. It seems like every day this lawyer is boasting about settling this case for BIG BUCKS or settling that case for many $$$$$. This lawyer’s posts got me thinking about whether attorneys in South Carolina should advertise their clients’ settlements and verdicts.
The subject of lawyer advertising on television and elsewhere has always been a touchy one for both the public and for attorneys. The debate over lawyer advertising continues at the competition between personal injury lawyers in Charleston and elsewhere becomes fiercer. Essentially, a very small number of lawyers saturate the online and TV ad markets in Charleston, South Carolina and elsewhere trying to distinguish themselves from one another. One way they try to set themselves apart from other lawyers is by advertising how much money they’ve received from settlements or verdicts. This type of advertising has sparked additional concerns as to how far lawyers may go to market themselves to the public.
Before I continue, I want to say that I know several lawyers who advertise on TV who are excellent lawyers. Additionally, some of these lawyers market their settlements and verdicts which were well-earned by them and their clients.
May a South Carolina Lawyer Advertise Settlements and Verdicts?
Many states, including South Carolina, allow lawyers, under certain conditions, to advertise their settlements and verdicts. Rule 7.1 of the South Carolina Rules of Professional prohibits a lawyer from making “a false, misleading, or deceptive communications about the lawyer or the lawyer’s services.” An example of a misleading or deceptive communication is when the lawyer’s ad “is likely to create an unjustified expectation about results the lawyer can achieve . . ..” Under Rule 7.1, if the lawyer chooses to advertise a verdict or settlement, they must include a disclaimer that “clearly and conspicuously [states] that any result the lawyer or law firm may have achieved on behalf of clients in other matters does not necessarily indicate similar results can be obtained for other clients.”
Is it Confusing for South Carolina Lawyers to Advertise Settlements and Verdicts?
Although South Carolina allows lawyers to advertise their verdicts and settlements with a disclaimer, the question is whether those ads still inflate the public’s expectations. The answer is – maybe. The following are some reasons why ads about a lawyer’s verdicts and settlements may be misleading:
1. Was the Verdict or Settlement Adequate?
Without knowing all of the facts and legal circumstances about the case, there is absolutely no way of knowing whether any settlement or verdict amount was adequate. Let’s say, for example, the lawyer advertises that they settled a personal injury case for $450,000.00. From that ad, there is simply no way for the public to know how much that case was truly worth to the client. On the one hand, maybe $450,000.00 was an excellent result. On the other hand, maybe the case was worth two to three times more if the lawyer had pressed harder for the client. In the end, there is simply no way to know whether $450,000.00 was a good settlement.
2. How Much Did the Client Actually Get from the Verdict or Settlement?
South Carolina lawyers’ advertisements about settlements and verdicts don’t inform the public as to how much money the client actually received. Other states, such as Florida, require that the lawyer disclose how much the client actually received out of the settlement or verdict. Unfortunately, South Carolina doesn’t have a similar rule.
In a recent ad, a lawyer boasted about a jury verdict of over 1 million dollars. However, there is more to the story behind that case. In that case, there was MUCH less than 1 million dollars of insurance coverage. So, as remarkable as the verdict sounds on TV, the client did not receive the amount advertised.
Using the previous example of a $450,000.00 settlement, that ad likewise doesn’t tell us how much the client received from the settlement. In a personal injury case, the lawyer typically takes a percentage of the settlement such as one-third or forty percent. Also, any case costs (such as deposition costs, expert witness fees, copying costs, etc.) are subtracted from the settlement. So, in the example I gave, it is possible that the client received less than half of the total settlement.
3. Is Comparing Lawyers “Success Stories” Like Comparing Apples to Oranges?
In another article, I wrote how the outcome of any legal case depends on so many factors. If you take the same case and try it ten different times in front of ten different judges and ten different sets of jurors, you will get ten different outcomes. Some judges will let in evidence they shouldn’t or keep out evidence that the jury should hear. Some jurors are more conservative than others. Some clients make better witnesses for themselves than others. Also, where you present the case can make a HUGE difference in the outcome. For example, Hampton County, South Carolina is notoriously generous in its jury verdicts. So, whether it is by settlement or jury verdict, a case in Hampton County is valued substantially higher than it would be in Charleston, South Carolina (where jurors are notoriously conservative in their awards). In other words, settlement and verdict numbers alone, without further context, speak little about any lawyer’s true ability or to really educate consumers.
Confidentiality vs. Lawyers Advertising Their Clients’ Settlements
Oftentimes, personal injury settlements are confidential. Essentially, many defendants (and their insurance companies) don’t want the public to know how much they payout to victims. However, I still see lawyers who advertise that they reached a “confidential settlement” for X dollars. In my opinion, these lawyers are running a HIGH risk of breaching the confidential settlement agreement and jeopardizing their client’s recovery from the settlement. Here is a real-world example of how boasting about a settlement may cause the client harm. A few years ago, a well-respected attorney reached a “confidential” settlement for over 1 million dollars on behalf of a client. A junior associate with the lawyer’s firm self-congratulated the firm and listed the dollar amount on an email mailing list (listserv) for plaintiffs lawyers. Although the lawyer didn’t mention the defendant by name, word got back to the defendant’s lawyers who withdrew from the settlement before a single dollar was paid. Unfortunately, that slip-up caused the lawyer to negotiate all over again on the client’s behalf and may have resulted in less money for the client. In the end, confidential means exactly that – THE SETTLEMENT IS CONFIDENTIAL. When a lawyer advertises the dollar amount of any case they settle, they run the risk of breaching that settlement agreement at their client’s expense.
Real-World Example of a Lawyer’s Misleading Claim of Success
In this article, I’ve focused on lawyers who market their verdicts and settlements mainly in the area of personal injury. However, the same issues apply to other lawyers, such as criminal defense lawyers, who market their “success” stories. For example, I recently handled the appeal of a person who was convicted of murder. Out of curiosity, I visited the website of the attorney who defended my client during the jury trial. On this lawyer’s website, the lawyer claimed that he had never lost a criminal case. Obviously, that claim wasn’t true because I was trying to get his client’s murder conviction reversed on appeal!
I realize that many of my attorney friends may not agree with my final thoughts, but I believe that lawyers shouldn’t be allowed to advertise about the dollar amount of settlements or verdicts. My reason for this is simple – advertising these amounts does nothing to educate potential clients about the lawyer’s services. The only benefit is to the lawyer who is marketing for new business by increasing consumers’ expectations of results in a personal injury claim. Again, many of the lawyers who advertise their verdicts and settlements are EXCELLENT lawyers. However, a lawyer’s need for more business should always give way to preserving the integrity of South Carolina’s justice system. In the end, I feel that the likelihood that the public may be confused by verdict and settlement amounts outweighs a lawyer’s need to market himself or herself. Having said that, if a lawyer markets settlement and verdict amounts, then they should only do so under the following conditions:
- There should be no risk of breaching the confidentiality of a settlement agreement;
- The client should consent to the publication or advertisement;
- The ad should include a synopsis of the facts, legal issues, and damages claimed in the case that should give the consumer a basic understanding of what the case was about; and
- The disclaimers, particularly on TV ads, should be prominently displayed throughout the ad (unlike the tiniest of print shown at the last ten seconds on many ads).