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Guaranteed Outcomes by California Attorneys (California Rule of Professional Conduct 7.1)

Here is a video I have on my Youtube channel where I go over guarantees a lawyer might make a client make ask for when it comes to the outcome of a case.

In short, I argue that it’s not realistic for a client to ask their lawyer for a guaranteed outcome (e.g. the client will win at trial, etc). The reason is because that outcome will depend on many factors that are outside of the lawyer’s control. At a minimum, it will depend, for instance, on what evidence the opposing party or parties have, what witnesses will testify to, and the habits and idiosyncrasies of the judge and jury.

In my experience, many clients don’t understand this and think incorrectly that they should hire a lawyer who gives a guarantee over a lawyer who does not. If you are in a position where a prospective attorney is offering you such a guarantee, it may be prudent to stop and ask yourself whether this attorney is just offering you the guarantee in order to get your business and your money.

In this blog post, I’m going to add on to my video above by citing to some authority, specifically the California Rules of Professional Conduct (CPRC). I have a video on my Youtube channel about the CPRC also which I’ll embed below. That video is a bit old so it uses the old CPRC numbering scheme of a number, a dash, and additional numbers (e.g. Rule 3-100). The current CPRC scheme dispenses with the dashes in favor of decimal points (e.g. Rule 1.5).

If any of you need it, the State Bar of California has a conversion chart between the old and new and numbering schemes available here.

Anyway, when it comes to guaranteed outcomes, one particularly relevant CPRC rule under the current numbering scheme is Rule 7.1 Communications Concerning a Lawyer’s Services. Rule 7.1 came in to effect on November 1, 2018, but the same idea was present in the prior CPRC numbering scheme as Rule 1-400.

Rule 7.1(a) says the following which spells out a general principle or idea which I’ve bolded and underlined:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the communication considered as a whole not materially misleading.”

Rule 7.1(b), however, expands on this general principle/idea by giving the State Bar of California the ability to make more detailed rules and standards about how 7.1(a) might actually be applied in the real world. 7.1(b) says:

“The Board of Trustees of the State Bar may formulate and adopt standards as to communications that will be presumed to violate rule 7.1, 7.2, 7.3, 7.4 or 7.5. The standards shall only be used as presumptions affecting the burden of proof in disciplinary proceedings involving alleged violations of these rules. “Presumption affecting the burden of proof” means that presumption defined in Evidence Code sections 605 and 606. Such standards formulated and adopted by the Board, as from time to time amended, shall be effective and binding on all lawyers.”

The “standards” that 7.1(b) refers to are in the comments to Rule 7.1. The standard that applies to guaranteed outcomes is comment [2] to Rule 7.1 which says:

“A communication that contains an express guarantee or warranty of the result of a particular representation is a false or misleading communication under this rule. (See also Bus. & Prof. Code, § 6157.2, subd. (a).)”

Section 6157.2(a) of the California Business and Professions Code says: “No advertisement shall contain or refer to any of the following: (a) Any guarantee or warranty regarding the outcome of a legal matter as a result of representation by the licensee.”

If you read all of the code sections and rules together, they say that a statement by a lawyer to the client guaranteeing the outcome of the client’s case is a false or misleading communication which is prohibited by Rule 7.1 of the California Rules of Professional Conduct for attorneys.

As always, this post was not meant to be an exhaustive discussion about the California Rules of Professional Conduct or how guarantees of outcomes are forbidden. If you have a situation involving either the CPRC or statements of a guaranteed outcome or any other legal issue, please do find a lawyer in your area with whom you can discuss your situation.

Lastly, here is my video about the California Rules of Professional Conduct under the old numbering system (i.e. pre-November 2018).

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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