June 12, 2009
It's A Bird, It's A Plane, No...
A recent ethics opinion from Alaska weighs in on the Super Lawyer controversy:
The use of lawyer rankings in advertising and promotional press releases has become controversial. Super Lawyers has received the most attention in recent ethics opinions.
A minority of jurisdictions has determined that references to rankings in a publication such as Super Lawyers are unethical. For example, the New Jersey Supreme Court’s Committee on Attorney Advertising ruled that advertising an attorney’s inclusion in Super Lawyers is a violation of Rule 7.1 because it is likely to create unjustifiable expectations and compares the “Super Lawyers” to non-“Super Lawyers.” This New Jersey Opinion has been stayed pending a challenge in the New Jersey Supreme Court. The New York Appellate Division proposed an amendment to their disciplinary rules that prohibited “any nickname, moniker, motto, or trade name that implies an ability to obtain results.” On July 20, 2007, the United States District Court found the amendment to be an unconstitutional limit on free speech.
The majority view regards advertising that mentions a rating received from a commercial publication to be ethically permissible. The State of Connecticut Statewide Grievance Committee offered a particularly thoughtful analysis. The Connecticut Committee determined that an unexplained reference to an attorney as a “Super Lawyer” in an advertisement is “potentially misleading and confusing to consumers.” The Connecticut Committee recognized that the Super Lawyer selection process is “subjective and arbitrary,” but decided that a truthful reference to a ranking by Super Lawyers is not unethical if sufficient information is provided to put the reference in context. To alleviate potential confusion, the Connecticut Committee requires that the reference to “Super Lawyer” must be explained. As an example, the Connecticut Committee indicated that announcing that a lawyer has been designated a Connecticut Super Lawyer in Connecticut Super Lawyers 2007 magazine is allowed, but stating simply that a lawyer is a Super Lawyer is not allowed.
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. By issuance of this ethics opinion, the Alaska Bar Association is not endorsing any of the commercial ranking systems referenced herein.
Specifically, a lawyer shall utilize essentially the following format when including a lawyer’s professional ranking in advertising materials:
Attorney’s Name was selected for inclusion in Publication Date.
Thus, for example, a lawyer may state:
Jane Doe was selected for inclusion in Alaska Super Lawyers 2008.
If the ranking was limited to a specific area of practice, such information shall be included as follows:
Attorney’s name was selected for inclusion in Publication Date in the area of field of practice.
Again, for example, the lawyer could state:
John Doe was selected for inclusion in Best Lawyers in America 2008 in the area of family law.
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You may want to update your readers regarding the status of the New Jersey case involving Super Lawyers.
In a ruling last December,the New Jersey Supreme Court ruled in favor of Super Lawyers by vacating Opinion 39. You can read the court's opinion at http://blog.superlawyers.com/uploads/file/NJSCOpinion.pdf.
Posted by: Bill White -- Publisher of Super Lawyers | Jun 15, 2009 12:10:34 PM