Fake It Until You Make It: Be Careful In Promoting Your New Practice

April 2025

By Karen M. Goodman

Everyone has heard the saying “fake it until you make it” in the legal profession.  This means being confident and acting like you know what you are doing even if you don’t.  Certainly, every lawyer confronts a seemingly endless number of “first times” (facing a judge, facing a jury, taking a deposition) so acting like “you have been there before,” is a good idea.  But there are limits to the “fake it until you make it” when it comes to how a lawyer promotes themself in public.

Let’s take an ambitious lawyer, we’ll call him Vinnie Gambini, who wants to attract clients in Elder Abuse litigation.  He has seen the large verdicts in the Daily Recorder and thinks “I can do that.”  So, he has his website developer create a page extolling his accomplishments in the field.  The page describes him as “experienced” in trying Nursing Home cases.  His website represents he is “certified” as an Elder Abuse law specialist.  The page represents that he has negotiated “millions of dollars in settlements” for families of Nursing Home and Assisted Living Facility residents.

One problem:  he has never taken a single Elder Abuse case to verdict; he isn’t “certified” by the state bar (or any recognized authority) as a specialist in any field, much less “Nursing Home” litigation (which isn’t recognized as a specialty by the state bar or any other third party service), and his role in negotiating settlements in Elder Abuse cases consists of settling pre-suit a single case he litigated for his grandmother.

But Vinnie knows that today’s consumer of legal services pays more attention to online reviews than word of mouth in selecting a lawyer.  He is in a hurry to attract clients interested in hiring him to prosecute their Elder Abuse cases.  So, he asks his sister to post a review on Google about his acumen in litigating Elder Abuse cases.  His sister is happy to help.  She posts: “Our family is so impressed in Vinnie Gambino’s skills in litigating the case against the Nursing Home for our grandmother.  He is a fierce advocate and obtained a wonderful jury verdict after years of the Nursing Home denying liability.”  Vinnie doesn’t ask his sister to correct the misstatements about the single Nursing Home case he settled pre-suit. 

Vinnie is informed he was selected by the City’s magazine as “a top lawyer” in civil litigation.  He places a full-page ad in the same magazine where he advertises that he is the City’s “top lawyer” and features his Elder Abuse practice.

It should come as no surprise to the reader that Vinnie’s communications, through his website, the google review and his magazine advertisement violate Rules of Professional Conduct 7.1 and 7.2.  Rule 7.1(a) prohibits a lawyer from making false or misleading statements about the lawyer or the lawyer’s services, or omitting a fact necessary to make the communication not materially misleading.  Representing he is “experienced” in trying Nursing Home cases violates the Rule.  So does the representation that he is a “certified specialist.”  Both are false. His representation about settlement results is misleading since it suggests many successful results, not a single case.  The fact his single Elder Abuse case settled pre-suit, which was omitted, would have illustrated Vinnie’s relative inexperience in the specific practice area.

Inflating results in websites and trade publications is unfortunately a common practice even though it violates Rule 7.1(a).  Lawyers who advertise on their websites that they have the “most 8 figure Elder Abuse verdicts of anyone in the country,” when that statement is patently false, violates Rule 7.1 and Rule 7.2.  Similarly, Lawyers who “advertise” large verdicts on their website knowing that only a fraction of the verdict has been collected violates Rule 7.1 without a disclaimer that “actual collection” was much less.  Rule 7.2 permits advertising so long as the contents are not false or misleading.  Even a “truthful statement,” such as verdict amounts can be considered misleading when the Lawyer knows that he has only been able to collect a fraction of the verdicts awarded.  Moreover, without a disclaimer, a consumer is likely to believe that the lawyer’s outstanding prior results can – and maybe will – be replicated.  

Vinnie’s website is a form of advertising that misleads the consumer into believing that he is an experienced, successful Elder Abuse litigator.  The misleading representations on the website violate Rule 7.2(a) which requires compliance to Rule 7.1.  Similarly, the paid print advertising in the City magazine misleads the public into believing that Vinnie has been recognized in the community as the “best lawyer” in Elder Abuse law. 

Rule 7.2(b) prohibits a lawyer from paying for positive reviews.  That means offering a $50 gift card to a client to post a positive review at the end of the case will get Lawyer in trouble for violating the Rule.  But a Lawyer can pay employees, agents and vendors who are hired to provide marketing services for the lawyer.  (See Comment [3] to rule 7.2).  But false reviews, even by well-meaning family members, violate Rule 7.1 and 7.2 because they are misleading.   Certainly, the sister’s relationship to Vinnie and the single Elder Abuse case that Vinnie successfully resolved pre-suit should be disclosed in a responsive post by Vinnie. (See Cal. State Bar Form. Opn. 2019-99).

False online reviews are a widespread problem for consumers.  Just this year, the Federal Trade Commission announced it was banning fake customer reviews.  15 CFR Part 465 was effective October 21, 2024, and bans deceptive or unfair practices involving consumer reviews.  This includes soliciting reviews from employees or relatives without instructing them to disclose their relationship with the Lawyer.  The Commission has the authority to allow Courts to impose civil penalties up to $50,000 to deter this misleading conduct.  The Commission adopted this Rule to address consumer harm due to false online reviews.  A Lawyer who is selling legal services is engaging in Commerce under FTC’s definition and so would subject to penalties for relying on false reviews. 

Vinnie has also violated Rule 7.4(a) in representing in his website that he is a “certified specialist” in Elder Abuse law.  Rule 7.4 prohibits a Lawyer from stating that he is a certified specialist when he is not, (Rule 7.4(a), even though a lawyer may communicate that his or her practice specializes in, is limited to, or is concentrated in a particular field of law. (Rule 7.4(b).) California State Bar’s Board of Legal Specialization (“BLS”) certifies legal specialist in 11 areas of the law:  Admiralty and Maritime Law, Appellate Law. Bankruptcy Law, Criminal Law, Estate Planning, Trust and Probate Law, Family Law, Franchise and Distribution Law, Immigration and Nationality Law, Legal Malpractice Law, Taxation Law and Workers’ Compensation Law. 

BLS also accredits several organizations to offer certifications in 11 other areas of the law (such as Bankruptcy, Trial Advocacy and Medical Malpractice).  Currently, there isn’t a recognized “specialty” in Elder Abuse law despite its complexity.  Vinnie’s representation that he is a “certified specialist” is false and violates Rule 7.4(a).  Again, nothing prohibits Vinnie from truthfully representing his areas of practice.  (Rule 7.4(b)). 

Misrepresentations on websites and advertising about a lawyer’s qualifications are a fertile ground for tort (or legal malpractice) claims when the client has received a poor result.  A lawyer who holds himself or herself to the public as a “specialist” will find that the standard of care is measured by what the reasonable “specialist” would do and not simply by what an ordinary lawyer would do.  “We thus conclude that a lawyer holding himself out to the public and the profession as specializing in an area of the law must exercise the skill, prudence, and diligence exercised by other specialists of ordinary skill and capacity specializing in the same field.”  (Wright v. Williams (1975) 47 Cal.App.3d 802, 810). 

What should Vinnie have done to avoid the foregoing violations? Vinnie’s marketing for Elder Abuse cases should focus on his demonstrated skills as a civil litigator.  Vinnie would be well-advised to develop real life experience in his targeted field by shadowing an experienced Elder Abuse lawyer, watching relevant trials, and studying the jury verdicts and published Elder Abuse cases.  Vinnie can’t fake his credentials (which focuses on what he has done) to obtain new Elder Abuse clients.   

Karen Goodman is a California Certified Specialist in Legal Malpractice Law and practices in Sacramento through her firm Goodman Law Corporation.  She has been a member of the CLA Ethics Committee.  The opinions in this article are her own.