As you may have already heard, on Dec. 17th the New Jersey Supreme Court vacated Opinion 39, the 2006 ruling of the Committee on Attorney Advertising which sought to prohibit lawyers from advertising in Super Lawyers and participating in the Super Lawyers selection process. In overturning Opinion 39, the Court found shortcomings in the advertising rules themselves and referred the matter to three committees to review and modify RPC 7.1(a)(2) and (3) because of "constitutional concerns" and "in light of emerging trends in attorney advertising." This is a ruling well worth a read.
The Court's ruling is a significant victory for consumers looking for valuable information about lawyers, for attorneys wanting to exercise their right to commercial free speech and for the First Amendment and the press' right to publish editorial opinion regarding lawyers.
We've made no secret of our belief that Opinion 39 was misguided in conception and poorly executed; as a result, we're truly delighted that Court has vindicated our positions. Yesterday's ruling confirms that lawyers have a constitutional right to truthfully advertise bona fide honor and awards and that publications such as Super Lawyers can - and should - be a much-needed resource to both consumers and attorneys.
Even a cursory read of the opinion makes it clear that the Court found the Special Master's report, issued in July, to be very persuasive. In that report, Judge Fall lauded our selection process, stating,
"Suffice to say, the selection procedures employed by Key Professional Media, Inc. are very sophisticated, comprehensive and complex."
He also noted that it is clear from the record that Super Lawyers "is a comprehensive, good-faith and detailed attempt to produce a list of lawyers that have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field."
Similarly, Judge Fall noted 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.
We're also pleased that the Court explicitly cleared away any ambiguity regarding the appropriateness of participating in the Super Lawyers process and of promoting an attorney's inclusion in our publication.
Going forward, we hope to be a resource to the New Jersey Advisory Committee on Attorney Advertising, the Advisory Committee on Professional Ethics and the Professional Responsibility Rules Committee to which this issue has been remanded for reconsideration.
Throughout this two-year odyssey, we have been sustained and encouraged by the support we have received from the ranks of New Jersey attorneys and others. On both a personal and a professional level, I appreciate your notes and calls and thank you for each of them.
My best wishes to you for joyous holiday season and a prosperous new year.
In an Opinion posted just minutes ago, the New Jersey Supreme Court has vacated Opinion 39 which sought to ban advertising in or related to Super Lawyers. The court ruled that the New Jersey Rules of Professional Conduct 7 (a)(2) and (a)(3) must go, stating:
"we acknowledge that Opinion 39's shortcomings
are the inevitable result of the plain language of RPC 7.1(a)(3)
(prohibiting comparative advertising statements) and, to a
lesser extent, RPC 7.1(a)(2) (prohibiting advertising "likely to
create an unjustified expectation about results"). Indeed, we
are persuaded that the standards set forth in the RPCs require
review and, at least in respect of RPC 7.1(a)(3), modification
both because of the constitutional concerns identified in the
Report and in light of the emerging trends in attorney
The court has referred the matter to three committees for consideration of a revised rule in light of the policy consideration in the Special Master's report and legitimate free speech concerns.
We are thrilled that Opinion 39 has been completely rejected, and feel vindicated in our assertions that lawyers have a constitutional right to truthfully advertise bona fide honor and awards, and that publications such as Super Lawyers provide much needed information to both consumers and attorneys who are beginning the search for legal counsel, or want to validate a referral.
She's always been an overachiever. At the University of Cincinnati, she played four years of varsity tennis and served as student body president -- the youngest ever elected and only the second female. Today, Janine Dascenzo is associate general counsel of GE. Her profile appears in the current issue of Super Lawyers -- Corporate Counsel Edition and is available online at superlawyers.com.