The Delaware State Bar Association is the lates to offer its approval of Super Lawyers. The formal opinion, which was issued on February 29, 2008, held that attorneys may advertise the fact they were selected for inclusion in Super Lawyers in a particular practice area in a particular year. The Delaware approval follows recent favorable rulings in North Carolina, Florida, Iowa, and Michigan for Super Lawyers.
North Carolina joins Florida, Iowa and Michigan in blessing lawyer advertising and participation in Super Lawyers. In a Formal Ethics Opinion issued by the state bar on January 25, 2008, finds that Super Lawyers is published by a bona fide organization that employs clear and consistent standards in its selection process. The Opinion specifically approves lawyer participation in the selection process; advertising that mentions the lawyer's inclusion on the Super Lawyer list; and the placement of advertising in Super Lawyers publications.
A federal suit challenging a number of Florida's lawyer advertising rules has been filed in the U.S. District Court for the Middle District of Florida. For more information and a copy of the complaint, see: http://www.sunethics.com/news_item_14.htm.
The lawsuit, by the Harrell and Harrell firm and Public Citizen, seems aimed at introducing consistency to the definition of “false and misleading”, which currently varies from state-to-state, and regulator-to-regulator.
This crazy quilt of commercial regulations places an unconstitutional burden on free speech and interstate commerce. The network of conflicting commercial regulations, mandatory state-by-state filings and fees, inhibit the flow of information essential to consumers in making prudent, informed choices of legal counsel.
For news coverage, see:
http://www.abajournal.com/news/lawyer_sues_fla_bar_over_bad_ad/
http://legalblogwatch.typepad.com/legal_blog_watch/2008/01/florida-suit-ch.html
The Iowa Bar's Committee on Ethics and Practice Guidelines took a close look at the selection process for the Super Lawyers list as well as that of Best Lawyers in America. On October 31, the Committee issued an opinion stating that:
...the peer review process engaged by Super Lawyers and Best Lawyers in America is deemed to have met the criteria established by the Committee in Ethics Opinion 07-04... Consequently an Iowa lawyer may include in their marketing and advertisements that they are rated by either publication, their rating and the meaning thereof.
These opinions set a simple and practical standard for judging a bona fide ratings process: that it is open to all Iowa lawyers, regardless of whether they subscribe or otherwise pay for service, that all lawyers have the potential to be rated, and that they are rated by a number of peers familiar with their work.
You can read the full opinion here."
Attorneys are starting to take note that some of the more extreme restrictions on attorney advertising and marketing are pointless in terms of protecting consumers and excessive in terms of a basic right to free speech. See Kevin O'Keefe's post, referring to a post by Connecticut attorney Norm Pattis. O'Keefe notes that ethics regulators may not stop at advertising.
em>Lawyers, not wanting to take a chance, seek informal ethics opinions approving the lawyers plans to tell the world about themselves. I am already seeing it with blogs. Lawyers are asking me, 'should we submit our blog to the bar for ethics approval?'
As Norm says, few (I'm not aware of any) decisions seem to be directed toward the blogosphere. But unless lawyers, presumably the defenders of the First Amendment, take a stand we're going to find lawyer blogs regulated on the basis that someone may reach the conclusion the lawyer publishing the blog has some expertise and experience. God forbid. Protect the children."
As we've said many times, it's reasonable to ask that lawyers be truthful and not misleading when marketing themselves. Beyond that, consumers are harmed by too little information about lawyers -- certainly not by too much.
The Connecticut Statewide Grievance Committee issued two advisory opinions regarding the Super Lawyers publication this week. You can find them here.
The first thing that Connecticut attorneys should know is that we have fully responded to the Committee’s request for additional information regarding the selection process. On our website at www.superlawyers.com, we include the additional empirical information about the Super Lawyers selection process requested by the committee, and our magazine will include a reference to this information. We also have updated our website to remove language that the Committee found to be “misleading.”
The Committee has informed us that these changes are acceptable; see the letter from the Statewide Governmence Committee to our attorney.
A couple other points:
Some lawyers don’t like Super Lawyers. We get it. Some just don’t like the attention; others find it “unseemly” to be chosen for a list labeled “Super”. Still others just don’t like the thought of being ranked at all.
But more – perhaps many more -- are justifiably proud to be chosen to the Super Lawyers list. The otherwise snarky article by Karen Donovan that appeared last week in Conde Nast Portfolio quotes New York attorney Theodore V. Wells Jr. of Paul, Weiss, Rifkind, Wharton & Garrison:
"I live in a world where we don't advertise, but I believe strongly that lawyers ought to be able to advertise and I think that the Super Lawyers publication is first-rate.”
A Google News search reveals nearly 50 press releases in October alone referencing attorneys’ rankings on the Super Lawyers list. Do the advertisements that accompany the lists work for lawyers? We have many willing to say so – visit www.superlawyers.com and refresh to see the testimonials on the lower right-hand side.
The Portfolio writer offers, supposedly for shock value, the $20,000 price tag for a full-page advertising profile in the Super Lawyers supplement to the New York Times Magazine published on September 23. But she offers no perspective. Here is one: A recent issue of The Economist has a full-page, $64,000 ad for a prestigious national firm featuring a ferocious looking grizzly bear – and this ad is part of a much larger campaign.
Is the price too much for a full page advertising profile in New York Super Lawyers? Well, 950,000 readers opened up the New York Times Magazine that Sunday morning. Considering that the Super Lawyers special section took up half the magazine, chances are good that these people saw it.
We also sent New York Super Lawyers magazine to virtually every lawyer and judge in the New York metropolitan area -- more than 120,000 potential referral sources. And, we distributed the magazine nationwide to the in-house counsel of the Russell 3000 and to every ABA accredited law school library in the country.
Call that 1.7 million high-end consumers and potential referral sources.
And what about the ads? If Portfolio’s writer had taken a few seconds to thumb through the Super Lawyers publication, she would not have mistakenly concluded that the ads are a bunch of lawyers congratulating each other. They are, in fact, attorney and firm profiles that provide useful information about the lawyers: practice areas, past experience, accomplishments, past cases, transactions, preparatory background, philosophy regarding the practice, information about the firm and so forth – precisely the information consumers and referring attorneys need.
Super Lawyers profile ads are certainly more informative than the firm’s name on the side of a building, more relevant than a public television sponsorship, more client-friendly than an expensive glossy brochure, and less expensive than a flash-animated website.
Firms who follow the advice of self-styled legal marketing gurus miss an opportunity to deliver a highly relevant, “scientific and objective” message to a lot of influential people: “Our lawyers are outstanding, and here’s why.”
Let’s be clear: Advertising in Super Lawyers is not the end-all of law firm marketing. But whether or not some lawyers like being ranked alongside others, Super Lawyers gets read -- by attorneys, judges and high-end consumers. And we know that often as not, the client chooses the attorney, not the firm. Since Super Lawyers highlights attorneys who are considered in the state’s upper echelon, it merits a look as part of the mix.
We actually missed this one...but better late than never!
Back in June, the Michigan Bar Association issued an opinion on whether Michigan attorneys can advertise that they were on the Super Lawyers list. The upshot: yes, they can.
Attorney advertising in Michigan is governed by the Michigan Rule of Professional Conduct (MRPC), which prohibits false and misleading statements as well as comparing the lawyer's services with other lawyers' services, unless the comparison can be backed up by fact.
The Michigan Bar Association looked at the Super Lawyers methodology found that an attorney who advertises inclusion on this list was consistent with the MRPC. In other words, the Super Lawyers listing process is verifiable, discriminating, backed by research and not available for a price. The Michigan Bar cautions attorneys to note the year of their listing in the publication, and to assert that they are on the Super Lawyers list rather than saying that they are "the best" or "super".
A ruling by the US District Court, Northern District of New York declared key new provisions of New York's new rules on attorney advertising unconstitutional. The suit was brought by consumer advocacy organization Public Citizen. According to Public Citizen's press release:
"In a victory for First Amendment rights, the court permanently enjoined enforcement of most of the challenged rules against attorney advertising, including rules against attention-getting techniques, the use of nicknames and mottos, the use of client testimonials, the portrayal of judges and the use of Internet pop-up ads."
A copy of the Court's ruling is available on Public Citizen's website here, and noted on their blog here. Public Citizen also has complete information on the case at its Consumer Law & Policy Blog, co-sponsored by Public Citizen's Consumer Justice Project, at http://pubcit.typepad.com/clpblog/advertising/index.html.
On Tuesday, the Federal Trade Commission filed a brief as amicus curiae in support of arguments to vacate Opinion 39 of the New Jersey Supreme Court's Committee on Attorney Advertising. The FTC -- which enforces laws regarding unfair trade practices and deceptive advertising -- notes that while deceptive advertising by lawyers should be prohibited,
"Courts and other state policy makers should be careful not to restrict unnecessarily the dissemination of truthful and non-misleading advertising that may help consumers make more informed choices. Overly broad restrictions of truthful and non-deceptive information are likely to harm consumers of legal services by denying them useful information and impeding competition among attorneys. Accordingly, consumers are better off when policy makers address concerns about potentially deceptive advertising with narrowly tailored restrictions."
The FTC argues that New Jersey's attorney advertising rules should be revised and Opinion 39 should be vacated because they restrict the free flow of truthful, non-deceptive information to consumers.
We couldn't agree more.
