Alaska is the latest state to approve the use of one’s Super Lawyers selection in advertising.
State bar association Ethics Opinion 2009-2, states in part:
Lawyers and law firms may refer to a listing in Super Lawyers, Best Lawyers, or another commercial professional ranking so long as the reference includes the publication name, date, and the practice area, if one was specified, in which the lawyer was ranked or selected.
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
advertising."
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.
Retired New Jersey Appellate Division Judge Robert Fall has released his long-awaited report on Opinion 39, the 2006 ruling by the Committee on Attorney Advertising that prohibited attorney participation in listings such as Super Lawyers. Judge Fall's report, produced at the request of the New Jersey Supreme Court and fifteen months in the making, contains much that was worth waiting for:
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's rules 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 to non-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
The Delaware State Bar Association is the latest to offer its approval of Super Lawyers. The formal opinion, which was issued on February 29, 2008, held that attorneys may advertise the fact they were selected for inclusion in Super Lawyers in a particular practice area in a particular year. The Delaware approval follows recent favorable rulings in North Carolina, Florida, Iowa, and Michigan for Super Lawyers.
North Carolina joins Florida, Iowa and Michigan in blessing lawyer advertising and participation in Super Lawyers. In a Formal Ethics Opinion issued by the state bar on January 25, 2008, finds that Super Lawyers is published by a bona fide organization that employs clear and consistent standards in its selection process. The Opinion specifically approves lawyer participation in the selection process; advertising that mentions the lawyer's inclusion on the Super Lawyer list; and the placement of advertising in Super Lawyers publications.
We actually missed this one...but better late than never!
Back in June, the Michigan Bar Association issued an opinion on whether Michigan attorneys can advertise that they were on the Super Lawyers list. The upshot: yes, they can.
Attorney advertising in Michigan is governed by the Michigan Rule of Professional Conduct (MRPC), which prohibits false and misleading statements as well as comparing the lawyer's services with other lawyers' services, unless the comparison can be backed up by fact.
The Michigan Bar Association looked at the Super Lawyers methodology found that an attorney who advertises inclusion on this list was consistent with the MRPC. In other words, the Super Lawyers listing process is verifiable, discriminating, backed by research and not available for a price. The Michigan Bar cautions attorneys to note the year of their listing in the publication, and to assert that they are on the Super Lawyers list rather than saying that they are "the best" or "super".
Federal Trade Commission (FTC) Office of Policy Planning, Bureau of Economics, Bureau of Consumer Protection, and Bureau of Competition to submitted joint comments to the Louisiana State Bar Association (LSBA) regarding proposed revisions to the rules of professional responsibility with respect to attorney advertising. The comments express concern that "the proposed Louisiana rules would unnecessarily restrict truthful advertising by attorneys in the state."
The comments state the staff's belief the staff's belief that deceptive advertising by lawyers should be prohibited, but that "reasonable restrictions on advertising that are specifically tailored to prevent deceptive claims in a way that preserve competition provide the optimal level of protection for consumers." The comments conclude that consumers benefit from robust competition among attorneys and from important price and quality information that advertising can provide:
"Rules that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services in Louisiana."
The proposed rules are very similar to those recently proposed in New York State, about which the FTC submitted comments in September 2006. The FTC staff recommends that the LSBA reject or modify the proposed rules to address competitive concerns and to avoid limiting consumer choice.
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