Panel issues guidance on best-lawyer advertising
Illustration by Sam Ward
Many observers view such ads as a form of puffery, a long-standing form of advertising that tries to attract attention by making self-laudatory statements. But some legal ethics experts believe that puffery, when used by lawyers, can be misleading to prospective consumers of legal services. Their concern is that some members of the public will be led to believe that the “super” or “best” lawyer will win their case. Lawyers, therefore, have to be more circumspect with ads that talk about quality of legal services or make comparisons with other lawyers.
In a recent expression of this concern, the Committee on Attorney Advertising of the New Jersey Supreme Court issued a notice to the bar explaining that lawyers may advertise awards, honors and accolades from outside groups “only when the basis for the comparison can be verified and the organization has made adequate inquiry into the fitness of the individual lawyer.” Examples of such awards, the committee stated, include numerical ratings as well as “super lawyers,” “rising stars,” “best lawyers,” “superior attorney,” “leading lawyer” and “top-rated counsel.”
In its notice, the committee explained that it had “received numerous grievances regarding attorney advertising of awards, honors and accolades that compare a lawyer’s services to other lawyers’ services.” Pete McAleer, the communications manager for the New Jersey Administrative Office of the Courts, says that “we do not have statistics on how many separate grievances are on bad law firm websites, but there are more than 50 law firm websites that have come to the committee’s attention with improper super-lawyers references.” The committee stated that an attorney should not post such an award unless the attorney determines that the organization giving the award had inquired into the attorney’s fitness. The organization or group must have a methodology that considers the attorney’s actual qualifications and accomplishments.
NO POPULARITY CONTESTS
The committee warned about awards that are nothing more than popularity contests—such as when members of the public email, telephone or text their votes. Still other awards come after an attorney has paid a fee to the rating entity or after the lawyer participates with the conferring organization’s website. “Lawyers may not advertise receipt of such awards unless, as a threshold matter, the conferring organization made adequate and individualized inquiry into the professional fitness of the lawyer,” the notice states.
Lawyers in New Jersey must describe in their advertising the standard or methodology on which the award, honor or accolade is based. Lawyers also must include the following disclaimer: “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.”
Lawyers also may state that they were on a superlative list of lawyers, but they may not say that they are a super lawyer or the best lawyer.
Peter Joy, a professor at Washington University School of Law in St. Louis who teaches legal ethics, sees benefits to the advice that the Committee on Attorney Advertising is giving lawyers in New Jersey. “Restrictions on self-laudatory claims can be good provided they are limited to prohibiting claims that are false or misleading,” he says. “Those types of restrictions protect the public and are permissible restrictions on free speech. No lawyer has a right to lie and mislead the public to attract clients. This means that claims of being the ‘winningest lawyer’ or ‘obtaining the highest settlements’ have to be true and factually accurate, or the bar has the right to prohibit them to protect the public.”
COMPELLING DISCLOSURE
Clay Calvert, a First Amendment scholar at the University of Florida in Gainesville, expresses a similar view. “This is one instance where compelled disclosure of objectively verifiable factual information is reasonable,” says Calvert, the director of the Marion B. Brechner First Amendment Project at the university. “It makes complete sense because the information required for disclosure in ads provides greater context for prospective clients to better evaluate award claims and to make more informed choices before selecting counsel.
“For prospective clients who are sufficiently concerned about an attorney’s qualifications, transparency regarding the methodology for selection to an awards list can be important,” Calvert says. “New Jersey wants to ensure that these awards are not bought-and-sold honors or dime-a-dozen popularity contests. When we see the words super or best or top, we may initially think of them as nothing more than mere puffery. But when they are associated with a confined list, which necessarily implies inclusion of some attorneys and the exclusion of others, then we see these terms as more objectively verifiable. That’s also why the New Jersey rules make sense.”
This is not the first time that New Jersey has examined the use of superlatives in attorney advertising. In July 2006, the Committee on Attorney Advertising issued an opinion stating that it was impermissible for attorneys to communicate their designation as super lawyers or similar rankings. But in December 2008, the New Jersey Supreme Court, in In re: Opinion 39, ruled that an outright ban could be unconstitutional absent proof that such ads are misleading. A year later, the court adopted a new ethics rule that allowed attorneys to tout their designation as super lawyers or best lawyers as long as ads included the names of the rating services as well as the disclaimer that remains in effect today. A comment to the rule further stated that lawyers shouldn’t mention their selection by a ratings service unless the company inquired into the lawyer’s fitness and the honor wasn’t purchased.
In many ways, the committee’s notice to the bar reinforces the provisions of the ethics rule.
“Certainly the requirements will force Garden State attorneys to spend a little more time up front before touting awards, but those requirements also may make the cottage industry of award companies add some rigor to their analyses,” Calvert says.
“That too is another benefit of the requirements. Such prohibitions are found in virtually every U.S. jurisdiction. A greasy spoon may be able to get away with claiming it has ‘the world’s best chili,’ but a lawyer can’t claim to be ‘the world’s best lawyer’ unless he or she can back up that improbable claim with cold, hard facts.”
This article originally appeared in the August 2016 issue of the ABA Journal with this headline: “Prove It: New Jersey committee says lawyers may advertise superlative rankings from outside groups if they have been verified."
