"Super Lawyers" Beware
By Lauren M. Gregory, Litigation News Associate Editor – September 15, 2016

An ethics opinion condemning attorney accolades based on "popularity contents" rather than recipients' true merit has stirred debate over the ways in which lawyers should be permitted to promote themselves to potential clients. Contextual meritorious information is now required under some states' ethics rules, most recently New Jersey. Some ABA Section of Litigation leaders caution that blanket "Superlawyer" type advertisements could be viewed as misleading to potential clients if not presented with enough explanatory context.

New Jersey "Notice to the Bar" Warns Lawyers
The New Jersey Supreme Court Committee on Attorney Advertising has published a Notice to the Bar in response to "numerous grievances regarding attorney advertising of awards, honors, and accolades that compare a lawyer's services to other lawyers' services." The Committee warns that those who wish to advertise themselves as recipients of awards such as "Super Lawyers, " "Rising Stars," "Best Lawyers," "Superior Attorney," "Leading Lawyer," and "Top-Rated Counsel," may do so "only when the basis for the comparison can be verified and the organization has made adequate inquiry into the fitness of the individual lawyer."

The Notice places the burden on the lawyer seeking to advertise such an award to determine whether the organization conferring the award had made "inquiry into the attorney's fitness," which must be "more rigorous than a simple tally of the lawyer's years of practice and lack of disciplinary history."

Then, if the award meets this preliminary test, the lawyer must take the additional step of adding contextual information in proximity to any reference to the award, including: (1) a description of the standard or methodology on which the award is based (either in the advertising itself or by reference to a "convenient, publicly available source"); (2) the name of the comparing organization that issued the award; and (3) the disclaimer that "No aspect of this advertisement has been approved by the Supreme Court of New Jersey."

Finally, the Notice warns, when the name of the award contains a superlative such as "super," "best," "superior," "leading," or "top-rated," the advertising must "state only that the lawyer was included in the list with that name, and not suggest that the lawyer has that attribute."

How Much Regulation Is Really Necessary?
Most litigators are already self-regulating, taking care to describe themselves as "listed as a 'Super Lawyer' as opposed to 'I am a Super Lawyer,'" explains Dolly Hernandez, Miami, FL, cochair of the Section of Litigation's Family Law Litigation Committee. "As lawyers, we have a duty to market ourselves in an ethical fashion," Hernandez says. "I think people are very careful. You do not want to be associated with a fee-paid service, for example, where if you don't pay, you don't receive the award."

In Hernandez's experience, "Super Lawyers" and the like are not solely fee-based or "popularity contests," as asserted by the New Jersey Committee. But even if they were, potential clients could just as easily become confused by other media reports over which the attorney has no control, offers Helen E. Casale, Norristown, PA, cochair of the Section's LGBT Litigator Committee.

"I don't know how [an attorney advertising his or her own accolades] is any more misleading than picking up whatever publication in which it's published," Casale says. "If someone wants to put in their biography that they were voted a 'Super Lawyer' for three years in a row, I think they should have the right to say that."

Even so, notes Cynthia C. Albracht-Crogan, Phoenix, AZ, Cochair of the Section's Solo & Small Firms Committee, it is important to remember that not everyone is familiar with the vetting process behind certain awards, and for those individuals, context is key. "The advertisement of these types of awards can be confusing to prospective clients," Albracht-Crogan warns. "The [New Jersey] rule, which requires citation to the qualifications for the awards, helps eliminate that confusion and is a positive step towards honesty in advertising."

Keith Swisher, Phoenix, AZ, Cochair of the Attorney Advertising Subcommittee of the Section's Ethics & Professionalism Committee, also sees the benefit of providing potential clients with disclaimers. However, he believes state ethics committees should take a step back and view the issue with a more critical eye. "Statements will often be made about what a consumer will think without, say, a market survey or other empirical data supporting the proposition," Swisher says.

Meanwhile, it is important to balance public interest with attorneys' free speech rights in the advertising realm, he adds. "It's a tough issue," Swisher observes. "Disclaimers can be good, and they can fix advertising that would otherwise be misleading. But if you require too many disclaimers, you are then infringing too much on free speech rights. There is that line that is hard to find in some cases."

Wavering Ethical Standards
The debate over regulation of "Super Lawyers" and similar awards has been ongoing. In fact, New Jersey prohibited this form of advertising altogether pursuant to the Committee's Opinion 39 in 2006. But the New Jersey Supreme Court vacated Opinion 39 in 2008 due to First Amendment concerns.

Although debates continue in various other jurisdictions across the country, after continued dialogue over a period of years, "at least some of the ambiguities have been clarified and, as a general notion, more and more states have become comfortable with these types of lists," Swisher explains.

A practical approach to compliance that balances the interests of the attorney and client may be best, Swisher offers.  For example, Section members may want to include a hyperlink to information about a particular award to provide context for those who want it without having to overload promotional materials—especially pithy social media posts—with lengthy disclaimers, he suggests. "That wouldn't do too much damage to a Twitter-type advertisement or banner."

Keywords: attorney advertising, Rule 7.1, ethics

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