ABA Journal



Federal district court cautions lawyers to be careful about repeating judges’ compliments

Oct 1, 2013, 08:20 am CDT


It seems like common sense to take a judge’s comment off your website if he writes a letter asking you to do so.  Why waste the goodwill?

By LawLOL on 2013 09 25, 1:25 pm CDT

Couldn’t the lawyer simply place a link to a PDF of the opinion on his website? That doesn’t sound like it would be very burdensome.

By Smeliot on 2013 09 25, 1:52 pm CDT

Why not allow quotes unless they are in fact misleading? I don’t see the inherentness of it.  I’ve seen quotes that are right on the money and some that are misleading.

By SME on 2013 09 25, 3:08 pm CDT

In light of the controversy,  judges will likely refrain from including lawyer compliments in their opinions, thus resolving the problem.

By H. Richard Penn on 2013 09 25, 4:13 pm CDT

Just publish the full opinion and use this handy PDF tool called “highlight text” to call out the section you’d like to draw your reader’s attention to…or make the print of that section bigger or bolder or in bright green…not hard at all.  The issue is whether the advertisement contains a prohibited judicial testimonial…a lone quote praising the attorney’s work looks like a judicial testimonial to the public and this rule is designed to safeguard the public…quit making a case for why people (including judges) hate attorneys

By Stephanie on 2013 09 25, 5:56 pm CDT

There’s little question using judicial quotes in ads meets the bar for “inherently deceptive.” 

But this Guideline isn’t a disclosure requirement - it’s a prohibition on speech (and likely an overbroad one, at that).  And to make matters worse, the court completely blew the analysis of how disclosure requirements are supposed to be applied.  What a mess.  I hope it gets taken up on appeal.

By Josh King on 2013 09 26, 12:15 am CDT

There’s little question that judicial quotes that are used out of context are inherently deceptive.  If they are presented as intended however then that is a different story.  If one means to complement me by saying that “I did a good job” then it’s not inherently deceptive for me to state that absent he rest of the writing.  However if someone means to criticize me by saying I did a good job making an ass of myself then it’s deceptive for me to state that the person said “I did a good job”. It’s a case by case analysis, not simply inherent.

By SME on 2013 09 26, 12:55 am CDT

This is great - judges complaining about quotations taken out of context!

Because that will deceive the public, no less!

By Holmes on 2013 09 26, 8:45 pm CDT

If the judge does not mean to endorse the firm or lawyer, it’s deceptive to take something he said in another context and use it for a testimonial directed at prospective clients.  The whole point of speech and opinions is that the person making the statement can take it back at any time.  Being notified that they do not want you distributing a past compliment is the same as taking it back.  It doesn’t get more arrogant than acting like he’s entitled to use the compliment however he wants for however long he wants without including the entire document showing the limitations of the compliment.

By Santana on 2013 10 05, 6:45 am CDT

“If the judge does not mean to endorse the firm or lawyer, it’s deceptive to take something he said in another context and use it for a testimonial directed at prospective clients.”

Not necessarily.  Suppose the court is called on to award attorney’s fee, which many statutes provide for.  The judge is required by his job to pass on the application and determine whether the requested fee is reasonable.  The decision often goes into both the quality and efficiency of the lawyers’ work. 

I once had a fee application where the other side complained of everything—too high rates, too many hours, two lawyers on the case, etc., etc.  The judge rejected all these arguments—he said we were highly experienced attorneys in that area of law, had done a good quality job, were very efficient with hours, and our rates were competitive with similar practitioners in the district.  All of this ends up in a published opinion in the federal supplement.

The quality and efficiency of our work was found by a court to be high, and the court awarded money to our client based on that, which is part of the judicial function on a fee application.
So what is deceptive about my repeating the interesting portions on my firm’s website?

By Tal Benschar on 2013 10 16, 4:18 pm CDT

What’s deceptive about it is that the judge did not intend that you would behave that way in another prospective client’s cause.  Did not intend to endorse you in general to a future client.  But in the case at issue, it’s mostly deceptive because the judge took back his favorable compliments by asking that it be removed from advertising.  It means he does not feel that way about the lawyer outside the context of that limited ruling.  So the deception begins when the judge refuses to have his words placed as a testimonial directed to prospective clients and the lawyer disregards it as if a past compliment is written in stone and can be used as a present one.

By Santana on 2013 10 18, 7:14 am CDT

SANTANA—sorry, I disagree.  It WOULD be deceptive if someone said that Judge X endorsed them.  It is not deceptive to say Judge X ruled that their fees in a case were reasonable.  Most clients are sophisticated enough to understand the difference between the two.

As for the judge “taking back his compliments”  that is not true.  The judge made a ruling.  That is his job—what the public pays him to do.  In order to award fees, the judge had to find that the fees were reasonable, and that usually includes subsidiary findings about the lawyers’ rates, billable time and competence in the case.  Does the judge’s ruling still stand?  Did he discover some new facts that made him retract the ruling?  No, he didn’t. 

The fact is that in one case a court reviewed the firm’s work and found it competent and the rates reasonable, enough to require the other side to pay those fees.  That fact can be truly and non-deceptively presented to potential future clients.  That the judge did not “intend” that he be quoted that way is neither here nor there.  Does the judge stand by his ruling or not?

The bottom line here is that there is a difference between a ruling and testimonial, and most people understand the difference.  No reason, IMO, that a lawyer cannot truthfully present the former.

By Tal Benschar on 2013 10 18, 3:36 pm CDT

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