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Effective Date: 10/1/2010

A lawyer shall not make a false or misleading communication about the lawyer, a person professionally associated with the lawyer, or their services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;

(c) compares the lawyer with other lawyers, unless the comparison can be factually substantiated; or

(d) compares the lawyer's services with other lawyers' services based on the lawyer having received an honor or accolade, unless:

(1) the name of the comparing organization is stated, and 
(2) the basis for the comparison can be substantiated.


[1] This Rule governs communications about a lawyer, a person professionally associated with a lawyer, or their services. The Rule applies to communications about nonlawyers professionally associated with lawyers and their services. See Rule 5.4. The communications covered by this Rule include advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer's services, statements about them must be truthful.

[2] An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading, if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. A truthful communication that the lawyer has received an honor or accolade is not misleading or impermissibly comparative for purposes of this Rule if: (1) the comparing organization has made inquiry into the lawyer's fitness, (2) the comparing organization does not issue the honor or accolade for a price, and (3) a truthful, plain language description of the standard or methodology upon which the honor or accolade is based is available for inspection either as part of the communication itself or by reference to a convenient, publicly available source.

[3] When a communication becomes inaccurate because of a change of circumstances, a lawyer has the responsibility to make every reasonable effort to make the information accurate as quickly as feasible under the circumstances. Subsequently occurring misrepresentations in a published annual directory may continue for a year without the lawyer having the ability to amend the material. In such cases, lawyers should take steps to otherwise communicate the changes to potential clients. However, information conveyed via other media, such as an Internet web site, can be changed quickly and it is the lawyer's responsibility to do so.

[4] Technology may allow use of information that is not readily apparent within a commercial communication. For example, Internet sites may include devices to facilitate an Internet search for a site or topic, such as legal services. A lawyer must avoid the use of any information that is not seen, for example meta-tags or similar devices, if that information would be inappropriate under these rules if it were seen.

[5] See also Rule 8.4(c) for the prohibition against stating or implying an ability to influence improperly a government agency or official.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 11/08/85, 12/13/85 and 01/10/86 and Pursuant to Resolution of the State Bar Association of North Dakota on 06/13/86; Minutes of Joint Committee on Attorney Standards on 06/08/99, 09/16/99, 11/19/99, 03/23/00, 06/13/00, 09/15/00, 11/17/00, 06/11/02, 09/12/02, 11/15/02, 06/24/03, 12/11/09, and 03/19/10.

Effective Date Obsolete Date
10/01/2010 View
08/01/2006 10/01/2010 View
03/01/2004 08/01/2006 View
11/08/1985 03/01/2004 View