An opinion worthy of discussion was issued in Ohio back in February 2017 but I didn’t stumble across it until this past week. (A tweet by ALAS got it onto my radar screen.)
Advisory Opinion 2017-1 from the Ohio Board of Professional Conduct addresses advertisement of contingent fee arrangements and, in particular, it addresses the following question:
Whether it is proper for a lawyer who advertises to use statements such as “No fee without recovery” or “You pay no fee unless you win” or “There’s no charge unless we win your case” or “You pay us only when we win.”
The opinion focuses only on the distinction in a contingent fee arrangement between fees and repayment of advanced expenses and, as a result, offers the same answer to all of the examples – no. Now even on the opinions own terms – focusing only on the distinction between expenses and fees, I disagree that all of those should get a “no” answer, but I also think that the Ohio opinion missed an opportunity to evaluate an even more significant question about these kind of statements that has always hit me as potentially problematic.
First, as the opinion explains all of these statements must be run through the filter of RPC 7.1 and a determination has to be made about whether they are false or misleading. The Ohio opinion concludes that all of the variations of statements tackled are “inherently false or misleading” because they “omit reference to the client’s responsibility for expenses and costs” and thereby “impl[y] that the client will not be required to pay litigation costs, regardless of the outcome of the litigation..”
On one level, I think that goes too far in terms of a harsh result for the two of the four examined statements that plainly speak in terms of “fees.” To say that those are inherently misleading is a conclusion with which I just disagree.
On another level though, I think this opinion doesn’t go far enough because it fails to address a more legitimate question of how such advertisements can be misleading.
In my opinion, three of the four statements have a problem but it is because of the use of “win” as the conditional event triggering payment of fees. A client who pursues a contingent fee case and has a serious injury but ends up settling their case for a small amount, let’s pick $30,000 as a random amount, might very well not consider their lawyer to have “won” their case. For me, the statement that ought to be the exemplar for use is the first one “No fee without recovery.” And the second one ought to be acceptable if it were to say “You pay no fee unless we recover for you.” Maybe each of those statements would be even better if “attorney” came before “fee” but I think that’s the path where a consumer is more likely to feel misled or deceived by such an advertisement rather than on the basis that there is an implication about expenses if a lawyer only speaks in the advertisement in terms of fees.