As I personal injury lawyer, at the conclusion of a client’s claim or case, I have asked clients if they are willing to let me record a video testimonial of them. This article applies to Florida lawyers. These testimonials may be used on my website because an attorney’s own website is not governed by the attorney advertising rules. Florida attorneys are not required to file websites for review with the Florida Bar and the Florida Bar is not allowed to review websites.
But, pursuant to Rule 4-7.1(i), the “general rule prohibiting a lawyer from engaging in conduct involving dishonesty, deceit, or misrepresentation applies to all communications by a lawyer, whether or not subchapter 4-7 applies to that communication.” A Florida attorney must obtain the client’s informed consent to use a testimonial related to the client’s matter, pursuant to Rule 4-1.6 (a).
“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (Terminology in 4 Preamble: A Lawyer’s Responsibility. Rules Regulating the Florida Bar)
The best practice is for the Florida lawyer to get the informed consent in writing. It will help the attorney in the event that the client disputes that he or she gave an informed consent, or the client disputes the terms of the informed consent.
It may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel.
The remainder of this article applies to the new Florida Bar advertising rules which are Effective 5-1-2013. Websites will be governed by the advertising rules and the definition of testimonial will be:
A testimonial is a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation. Clients as consumers are well-qualified to opine on matters such as courtesy, promptness, efficiency, and professional demeanor. Testimonials by clients on these matters, as long as they are truthful and are based on the actual experience of the person giving the testimonial, are beneficial to prospective clients and are permissible. (Comment to Rule 4-7.13)
Effective 5-1-13, the testimonial must include a disclaimer that “the prospective client may not obtain the same or similar results.” Rule 4-7.13(b)(8)(f). The testimonial must not be deceptive and inherently misleading. 4-7.13(b). There are also additional requirements for testimonials – which can be found in Rule 4-7.13(b)(8) – that I won’t discuss here.