The Super Lawyers Blog : Super Lawyers Blog : Information and Opinion on Legal Marketing and Lawyer Ratings

It's official. The New Jersey Supreme Court has adopted amendments to ethics rules that allow lawyers to mention their inclusion in Super Lawyers and other ratings. The revised rules go into effect immediately. This closes the final chapter of the three-and-a-half year saga arising out of Opinion 39.

It's a good day for consumers and lawyers in New Jersey as the rules now bring the state into step with the rest of the country. 

The rule and comments call for common sense disclosures of the name of the rating service and a reference to where the selection methodology can be found. And of course, the rules prohibit pay-to-play accolades.

None of this affects how we publish. We've always included a detailed description of the Super Lawyers selection process where ever we publish our lists. We want people to understand exactly what we go through in selecting lawyers. 

The only shortcoming with the rules is the required disclaimer, "No aspect of this advertisement has been approved by the Supreme Court of New Jersey." As is the case with most disclaimers of this type, you're left to wonder what purpose is served? Is there any evidence at all that without such language consumers would be misled? And if there is no such evidence, why require the disclaimer? 

What consumers really need is information and not disclaimers. Nevertheless, we feel the court has otherwise taken a sound approach in updating its rules. 

 

 

 

 

 

 

 

 

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 An item in today's New Jersey Law Journal daily news alert is potentially misleading and needs clarification. The Journal reports:

COURT LIKELY TO EASE, NOT LIFT, ITS BAN ON COMPARATIVE LAWYER ADVERTISING

New Jersey's Supreme Court seems poised to alter its current outright prohibition on advertising in which lawyers compare their abilities to others, probably by requiring that such ads include caveats to potential clients. The Court wants to create a "sensibly balanced rule," Chief Justice Stuart Rabner said Wednesday at a hearing on whether lawyer should be able, within limits, to tout their ratings in publications like Super Lawyers Best Lawyers. But it was clear from the tenor of the arguments and the justices' occasional remarks that comparative advertisements will likely have to be accompanied by some form of disclaimer that "super lawyer" or "best lawyer" designations do not have the Court's blessing.

Reading this, one might infer that lawyers are currently banned from advertising in, or mentioning selection to Super Lawyers (or Best Lawyers) in their advertising because of the comparative advertising rule. That is not the case. Over the past four years, hundreds of New Jersey lawyers have advertised in New Jersey Super Lawyers magazine, or have mentioned the Super Lawyers honor in their advertising or promotional materials. Not a single one of them has been disciplined, or threatened with discipline for doing so. The same can be said of the thousands of lawyers nationwide who advertise or mention their selection to Super Lawyers.

Super Lawyers has been around since 1991. In those 18 years, no court or discipline authority has ever prohibited lawyers from advertising in or about Super Lawyers. 

So, New Jersey lawyers and reporters, please note: There is no ban on Super Lawyers or Best Lawyers advertising. Never has been and, as long as the First Amendment is around, there never will be.

The only thing the New Jersey Supreme Court has banned is the clumsy and misguided  disaster known as Opinion 39 which itself sought to impose such a ban at the expense of free speech. Click here to read the court's opinion and here to read the report of Judge Fall upon which the court based its ruling. 

 

 

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I appreciate the coverage that the NJBIZ gave our victory in the Opinion 39 case, Caped Crusaders of the Courts -- N.J. Judges lift ban on advertising 'Super Lawyer' (sic) status.

But in the middle of his piece, Scott Goldstein tosses this little hand grenade into the story.

"For some, it was unclear how lawyers were selected to be on these lists, and there was speculation that lawyers whose firms advertise in the publications are more likely to be included."

Who are these "some"? And upon what do they base their speculation? It's never made clear. It's just a faceless, baseless claim that floats alone in a sea of facts to the contrary.

The Special Master in this case reviewed thousands of documents, and listened to weeks of testimony about the selection processes employed by Super Lawyers and the other list publishers involved in this case. He concluded that there is no relation between advertising and selection to the list. The New Jersey Supreme Court reviewed the Special Master's 300 plus page report and agreed with his finding that there is no pay-to-play element. In the more than two years this case went on, the New Jersey Attorney General's office could not produce a shred of evidence to the contrary.

We had hoped this urban legend that lawyers can somehow buy their way onto our list had been put to rest once and for all with the decision of the New Jersey Supreme Court.

 

 

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Who says Super Lawyers doesn't know how to pick 'em?

Two of the lawyers we chose to represent us in New Jersey to fight Opinion 39 -- Kevin McNulty, and Ben Wasserman -- have been named the New Jersey Law Journal's Lawyers of the Year for 2008. Also honored was Fred Dennehy, who represented Best Lawyers of America.

On December 17, the New Jersey Supreme Court vacated Opinion 39 which sought to prohibit lawyers' participation with Super Lawyers and Best Lawyers.

In recognizing the legal team's work in protecting lawyers' First Amendment rights to advertise, the Law Journal states:

“They championed the notion that the marketing of legal services has evolved and that consumers are not easily gulled.

“They argued New Jersey regulators out of taking a position at odds with lawyer advertising regimes in other jurisdictions.

“And they convinced a special master and the state Supreme Court that Opinion 39's blanket suppression of rating services with comparative words in their titles violated commercial free speech rights.”

Other lawyers playing key roles for Super Lawyers were Josh Rosenkranz of the New York office of Orick, and Minneapolis attorney Roy Ginsburg, who served as our local counsel.

Congratulations to our legal team on the well-deserved honor!

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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.
 

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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. 

 

 

 

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 On Monday September 15, Super Lawyers filed its "Comments on Report of Special Master" brief with the New Jersey Supreme Court. The Report of the Special Master was filed on June 30, 2008.

Briefs were also filed by Woodward-White, publisher of Best Lawyers in America, Martindale-Hubbell and New Jersey Monthly. The publishers are all intervenors in In Re Opinion 39 of the Committee on Attorney Advertising. The case arose out of the July 24, 2006, issuance of Opinion 39 by the New Jersey Committee on Attorney Advertising. Opinion 39 concluded that it was impermissible for attorneys to communicate their selection by Super Lawyers and Best Lawyers or even to participate in their surveys.

In its brief, Super Lawyers argues, among other things, that the lawyer ratings it publishes provide valuable information to consumers, and are not misleading under the New Jersey Ethics Rules.

“A lawyer’s truthful statement that he or she has been selected by an independent publication, such as Super Lawyers magazine, is not the equivalent of a prohibited 'comparison' and does not raise 'unjustified expectations' in violation of the ethical rules, RPC 7.1(a)(3) and RPC 7.1 (a) (2). And if the regulations were interpreted to prohibit such advertisements, they would run afoul of well-established First Amendment case law.”

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The other day I saw a warning on a restroom towel dispenser. It warned that putting your head in the towel loop could result in personal injury or death. I wondered, exactly who is this warning directed towards? What person would actually hang himself in a towel loop if it weren't for this warning?

I ask myself the same thing when I see regulators placing all sorts of restrictions and requirements on lawyer advertising. Take for example the mandatory warning that some states require attorneys to put in their advertising: “The hiring of a lawyer is an important decision and should not be based solely on advertising.”

I suspect that, like the bathroom warning, this warning doesn’t apply to any real people. People are simply not that stupid. And if they were, they wouldn’t read or heed these warnings anyway.

When it comes to regulating lawyer ads, Bates v. Arizona set the standard decades ago: Commercial speech may be regulated to advance a legitimate governmental interest as long as that regulation is not more extensive than is necessary to serve that interest. I suspect that the requirement that lawyers warn people that they shouldn’t rely solely on an ad in hiring a lawyer would not pass the Bates “necessary” test. Without proof that people actually engage in the warned against activity, the warning itself cannot be deemed to be “necessary.” 

So like the bathroom towel dispenser warning, this is just another warning directed at a clueless, but non-existent audience.

 

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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:

• 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 their clients.

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

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On Tuesday, the Federal Trade Commission filed a brief as amicus curiae in support of arguments to vacate Opinion 39 of the New Jersey Supreme Court's Committee on Attorney Advertising. The FTC -- which enforces laws regarding unfair trade practices and deceptive advertising -- notes that while deceptive advertising by lawyers should be prohibited,

"Courts and other state policy makers should be careful not to restrict unnecessarily the dissemination of truthful and non-misleading advertising that may help consumers make more informed choices. Overly broad restrictions of truthful and non-deceptive information are likely to harm consumers of legal services by denying them useful information and impeding competition among attorneys. Accordingly, consumers are better off when policy makers address concerns about potentially deceptive advertising with narrowly tailored restrictions."

The FTC argues that New Jersey's attorney advertising rules should be revised and Opinion 39 should be vacated because they restrict the free flow of truthful, non-deceptive information to consumers.

We couldn't agree more.

Click here to download the FTC brief.

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New Jersey Supreme Court Officially Grants Review of Opinion 39 and Appoints a Special Master to Develop an Evidentiary Record The New Jersey Supreme Court officially agreed to rule on the validity of Opinion 39. Before opining about the validity of the rule, the Court appointed a retired New Jersey judge to consider any evidence presented by the parties and make factual findings. The Court presumably took this step because various parties asked the Supreme Court to consider evidence that the Committee on Attorney Advertising had not considered (since the Committee did not inform any interested parties that it was making any inquiry in the first place). Since the Supreme Court is not typically cast in the role of a factfinder, it decided to appoint a factfinder. The Court could have returned the case to the Committee to flesh out the record, but it opted, instead, to enlist former Superior Court and Appellate Division judge Robert A. Fall.

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