New Jersey Opinion 39 Archives

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. 

 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. 

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.