United States: Where Ethics And Advertising Collide: Colorado Court Dismisses False Advertising Suit Between Two Law Firms

Last Updated: January 24 2019
Article by Tyler Maulsby

Late last year, a Colorado federal court  dismissed  a law firm's false advertising claims against a rival law firm on the grounds that the plaintiff firm could not sufficiently show that an anonymous online review about his business constituted false advertising under the Lanham Act.  As regular readers of this blog know, there is no shortage of false advertising claims (or negative online reviews) between competing businesses.  But as the blog's resident ethics lawyer, this one caught my eye as it raises both advertising and ethics issues.

The Facts

This case, Wilson v. AdvisorLaw, LLC, stemmed from a fractured business relationship between two financial services law firms – Wilson Law Ltd. and its principal Mark Wilson and AdvisorLaw LLC and its principal Dochtor Kennedy.  Wilson and Kennedy had a business relationship which ended in October 2016.  Shortly after the breakup, Wilson came across a negative online review about himself and his firm on the website ripoffreport.com.  The review accused Wilson of dishonesty and fraudulent behavior and purported to be from an ex-client.  According to the lawsuit, forensic evidence showed that the review was posted at 8:23 p.m. from Mr. Kennedy's home. Although the evidence was not conclusive, it strongly suggested that Mr. Kennedy or one of the other two individuals in his home (his wife or a friend who was there for a brief period of time) posted the review.  After discovering the source of the negative review, Wilson sued Kennedy and AdvisorLaw for, among other things, false advertising under the Lanham Act. 

The Law on False Advertising and the Court's Decision

To prevail on a Lanham Act claim (15 U.S.C. § 1125(a)), a plaintiff must show that the defendant made a materially false or misleading statement of fact in connection with the defendant's "commercial advertising or promotion," that the statement was made in commerce and misrepresented the nature of the plaintiff's services and, as a result of the statement, the plaintiff suffered (or will likely suffer) injury.  "Commercial advertising or promotion" in the context of the Lanham Act requires that the factual statement:  (i) constitute commercial speech; (ii) is made by (or on behalf of) defendant who is in commercial competition with the plaintiff; (iii) is made for the purpose of influencing consumers to obtain the defendant's services; and (iv) is disseminated sufficiently to the relevant audience so that it would constitute advertising or promotion within the relevant industry.  In other words, as the court recognized, the statements at issue "must reach some significant number of actual or potential customers" in order to be actionable.

In this case, Kennedy argued that there was no evidence that the negative online reviews sufficiently reached Wilson's potential clients and therefore the Lanham Act claim must be dismissed.  Wilson made several arguments in response, most of which were based on an assertion that he was "having a hard time getting new clients" after the review was posted. But in the court's view, Wilson did not provide any evidence specifically linking his difficulty obtaining new clients to the online review.  Specifically, the court held: "Plaintiffs have only come forward with a theory that the Review was broadly disseminated to the Plaintiffs' prospective customers and that it had a tendency to discourage those customers from retaining the Plaintiffs, but they have not come forward with any particular proof  that this is indeed what occurred."  As a result the court dismissed Wilson's Lanham Act claim and left the parties to litigate the remainder of their competing state law claims in state court.   

The Ethics Issues

The conduct between the parties (both of whom are lawyers) also raises a number of legal ethics issues. Although each state's ethics rules are slightly different, most are based on the ABA Model Rules of Professional Conduct.  With respect to attorney advertising, Model Rule 7.1 provides that a lawyer may not "make a false or misleading communication about the lawyer or the lawyer's services."  Here, even assuming Kennedy wrote the online review, it is still probably not an advertisement under Rule 7.1 since it was not about AdvisorLaw's services (e.g. it did not purport to be an anonymous client saying "Wilson is a cheat, go hire AdvisorLaw, LLC instead!"). This highlights an important difference between false advertising claims, which are meant to remedy a wrong to a business competitor, and the attorney advertising rules, which are meant to protect the public from false and misleading lawyer advertisements. 

But the anonymous review is problematic for other reasons.  Model Rule 8.4(c) prohibits a lawyer from engaging in conduct involving "dishonesty, fraud deceit or misrepresentation."  Similarly, Model Rule 8.4(h) prohibits conduct that adversely reflects on a lawyer's "honesty, trustworthiness or fitness as a lawyer."  Although the record in Wilson did not show conclusively who authored the negative review, the court recognized the likelihood that it was either Kennedy or someone in his immediate circle.  This evidence could be enough for a disciplinary authority to intervene and, as a general rule, those bodies do not take kindly to lawyers disparaging each other in anonymous online reviews.  In other words, even though one side may have won this battle, this could very well be a case where both sides end up losing the war.


This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions