Special Master Report on Opinion 39 Is Welcome Addition

Retired New Jersey Appellate Division JudgeRobert Fall has released his long-awaited reporton Opinion 39, the 2006 ruling by the Committee on Attorney Advertising thatprohibited attorney participation in listings such as Super Lawyers. Judge Fall's report, produced at the requestof the New Jersey Supreme Court and fifteen months in the making, contains muchthat was worth waiting for:

  • It is good news for consumers and others looking for valuable information about lawyers;
  • It's good news for attorneys wishing to exercise their constitutional right to commercial free speech;
  • And, it's good news for everyone in the media concerned about our right to publish editorial opinion regarding lawyers who provide exceptional service to theirclients.

Judge Fall did an excellent job of distilling eight days of testimony and 1,800 pages of documents. The result is a 304-page report that provides a thorough and comprehensive history of attorney advertising, a survey of current practices in various jurisdictions and a detailed discussion of the application of New Jersey'srules of professional conduct to surveys and other marketing practices. The report, like the hearings Judge Fall conducted in preparation for this report, is a powerful example of the jurist's fair and meticulous approach to the issue.

The complete report is well worth reading, but for those interested in the executive summary, Judge Fall found much to praise about the Super Lawyer process, noting for example that our selection procedures are "very sophisticated, comprehensive and complex."   Similarly, Judge Fall notes with favor our system of checks and balances, our database and system safeguards and the various steps we take in assessing the qualifications and good standing of the lawyers on our list.

By contrast, there's little praise for Opinion 39 or its underlying theories. To the contrary, Judge Fall devotes more than 100 pages of his report to a discussion of Supreme Court decisions regarding the constitutional right of lawyers to advertise, and the responsibility imposed on states in regulating free speech.

Overall, the report is an eloquent reminder that Opinion 39 is a constitutional outlier and is completely out of step with the rest of the country.With the full weight of Judge Fall's report to inform it, we are confident that the New Jersey Supreme Court will protect both its lawyers' right to commercial free speech, and our right as independent journalists tonon-commercial free speech. The Court has yet to indicate when it will take up the matter, but thanks to Judge Fall, the ground has certainly been well-prepared for that possibility.

- Bill