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.
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."
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.