Are You “Experienced”?

Not only a good album, but a good question. Attorney advertising has been around as long as I’ve been practicing law, as have the Rules of Professional Conduct, which govern attorney behavior, including advertising.

In Pennsylvania, attorney advertising is governed by Rule 7.2 of the Pennsylvania Rules of Professional Conduct. As part of these rules, a lawyer may not use “inherently subjective terms” like “experienced” to describe their practice. This rule seems to be observed more in its breach than in lawyers’ adherence to it. Google “Experienced Pennsylvania Lawyer” (or just click that link) and you’ll see what I mean.

Comment 7.1:240 to the Rule further discusses what an attorney may and may not say when advertising their background:

7.1:240      Comparison with Other Lawyers

A lawyer can only make objective, measurable comparisons to another lawyer. Formerly associated lawyers who are discontinuing their association must ensure that all communications with clients comply with the requirement of the Rule. Phila. Eth. Ops. 92-8 (undated)94-30 (1994). A Lawyer may not use inherently subjective terms such as “experienced”, “expert”, “highly qualified” or “competent” to describe his services. See Spencer v. Honorable Justices of the Supreme Court, 579 F. Supp. 880 (E.D. Pa. 1984), aff’d. without op., 760 F.2d 261 (3d. Cir. 1985).

In Spencer, an attorney filed a §1983 suit against seeking a declaratory judgment that several parts of the Pa.R.P.C were unconstitutional, in violation of his right to free speech under the First and Fourteenth Amendments. Spencer was a lawyer who had a pilot’s license and master’s degree in computer science, and he wanted to be able to advertise his background as an “experienced” pilot and programmer to the public. Among other things, he specifically challenged Pennsylvania’s interpretation of the rules, which prohibited the use of the word “experienced” to describe his background. The State argued that such subjective characterization of Spencer’s background was “inherently misleading” and should be banned. The Court agreed with Pennsylvania, noting that “State has a substantial interest in maintaining professional standards among lawyers to protect consumers against the potential for misstatements and overstatements inherent in any subjective claims as to the quality of legal services or a lawyer’s credentials”. The Court drilled further into its ruling, though, and noted several terms that are off-limits:

Claims using terms such as “experienced,” “expert,” “highly qualified,” or “competent” are difficult for a layman to confirm, measure, or verify. A lawyer who has handled three or four tort or antitrust cases clearly is less “experienced” than one who has handled fifty, yet the term “experienced” would arguably be available to both.

Finally, the Court gave a pretty simple rule to follow when an attorney seeks to describe his or her background:

…[A] lawyer may describe the quality of his legal services only through the use of objective, verifiable terms such as the number of cases handled in a particular legal field or the number of years in practice.

It’s not that hard, and it’s easy to see what the court ruled this way. Experienced is a filler word that means nothing. It looks nice. It gives the illusion that a lawyer’s been around the block and knows what he’s doing. But because it’s “inherently subjective”, there’s no real value to the word. “Experienced” compared to what? “Leo, don’t be stupid” you might say. “‘Experienced’ means ‘experienced’ What else is there to it?” Let’s unpack that:

  • I’ve been practicing since 2010 (4 years). Jordan‘s been practicing since 2008 (6 years). But due to the nature of my criminal work—which requires frequent court appearances—I’ve appeared in court more times that Jordan has. Who’s more “experienced’?
  • A public defender in Philadelphia has done more preliminary hearings by the end of their first rotation in Philadelphia Municipal Court than many private criminal defense lawyers who’ve been practicing for several years—is the first-year public defender more “experienced” than the private criminal defense veteran?
  • A hypothetical partner in a litigation department at a large law firm has been practicing for 15 years, but has tried only two cases. Jordan and I have each tried more cases than that in 2014. Who’s more experienced?

Instead using an empty word, which the rules that governs our conduct have deemed “unethical” why not simply state concrete facts?:

  • “I have been a criminal defense lawyer my entire career.”
  • “In my more than 30 years as an attorney, I have tried more than 50 cases before a jury”
  • “Just this year, I settled a $1.25 million case for my client…”

Simple, concrete examples instead of abstract nonsense.

If you’re a younger lawyer who’s still cutting their chops, learn from Joseph Rakofsky’s mistakes— don’t lie and make yourself seem more important and knowledgeable than you are, especially to the derogation of your fiduciary obligations to  your client. It’s not good for you and it’s worse for your clients. The Rules of Professional Conduct set the floor of attorney conduct, not the ceiling.

Yes there are a lot of rules, and no one has them all committed to memory (I certainly don’t—that’s why I have that handy booklet from when I was admitted to practice. You can order it here). Whether is a matter of outsourcing marketing or lawyers simply not knowing or caring, I don’t know. In any case, I am not going to hold my breath for the Pennsylvania Disciplinary Board to do anything about it.

But let’s raise the bar—this is an easy rule to follow, whether you’re a newly admitted attorney or an old fart a curmudgeon.

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