Legal Marketing & PR

N.J. Supreme Court Eases Restrictions on 'Super Lawyer' Advertising

By Larry Bodine, Esq.

The state Supreme Court put New Jersey back in step with the rest of the nation Wednesday and changed the ethics rules to allow lawyers to mention their inclusion in Super Lawyers, Best Lawyers in America or Martindale-Hubbell AV rankings.

The changes take effect immediately. The amendment to Rule of Professional Conduct 7.1(a)(3) requires lawyers to include in ads the name of the rating service and a disclaimer saying, "No aspect of this advertisement has been approved by the Supreme Court."

The justices also added a comment to the rule that lawyers will want to read carefully before touting their selection by rating services to make sure the ads aren't misleading. It says the conferring service has to have made an inquiry into the attorney's fitness. The honor can't be given for a price. And the ads must describe the methodology, or at least tell the reader where the description can be found.

The Court's action ends a dispute that began on July 26, 2006, when the Committee on Attorney Advertising made the first, and ultimately only, ruling by any state's regulators that lawyers who trumpeted their inclusion in Super Lawyers and Best Lawyers in America were violating rules against misleading advertising.

The ads compared qualifications of lawyers, which is inherently unethical under RPC 7.1(a)(3), the committee said in the decision, Opinion 39. The Supreme Court stayed the ruling, while the rating services and the committee began marshaling their arguments.

They said other states' regulators had found the 21st century public is savvy enough to understand that a designation by Super Lawyers or Best Lawyers in America isn't misleading or can be mitigated by disclaimers.

The state Attorney General's Office argued for the committee but said that if the justices decided the ratings were permissible, they would have to change the rules.

And that -- after three years of litigation, months of hearings by a special master, deliberations by three Supreme Court committees and comment by the public -- is what the Court did.

Last December, as the rating services continuing to operate under the stay, the Court ruled that "state bans on truthful, fact-based claims in lawful advertising could be ruled unconstitutional when the state fails to establish that the regulated claims are actually or inherently misleading."

and asked the Professional Responsibility Rules Committee and other panels to draft recommendations for rule changes to accommodate the ads without disturbing the core meaning of the ethics strictures.

Under the amendment to RPC 7.1(a)(3) promulgated Wednesday, it remains unethical for New Jersey lawyers to compare their services to those of attorneys. The rule is based on the theory that clients shouldn't be led to believe that any particular lawyer has some special advantage over a peer or can guarantee a result.

But the amended rule carves out an exception for ads that include the name of a rating organization that has used a methodology that can be substantiated.

Lawyers for the rating services told the justices at a hearing in September that they wouldn't want a rule requiring a clutter of disclaimers in lawyer ads similar to the fine print in car ads or the rapid-fire list of possible side effects in drug commercials on television.

"The message should get through," said Fred Dennehey of Wilentz, Goldman & Spitzer in Woodbridge, N.J., representing Best Lawyers in America. "They should not be drowned in a tsunami of prose. A frantic pace at three times speed is understood by few and cared about by fewer still."

The Court was listening. Yes, the new rule requires "a truthful plain language description of the standard or methodology upon which the honor or accolade is based is available for inspection."

But it also says the ads would be on firm ethical ground if they merely include a "reference to a convenient, publicly available source" for the standards. That appears to mean the fine print need only say something like this: "For methodology, see martindale.com"

Full post as published by Larry Bodine's LawMarketing Blog on November 07, 2009 (boomark / email).