Super Lawyers Facts

FTC Recommends Vacating Opinion 39

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.

Click here to download the FTC brief.

New Jersey Supreme Court Officially Grants Review of Opinion 39

New Jersey Supreme Court Officially Grants Review of Opinion 39 and Appoints a Special Master to Develop an Evidentiary Record The New Jersey Supreme Court officially agreed to rule on the validity of Opinion 39. Before opining about the validity of the rule, the Court appointed a retired New Jersey judge to consider any evidence presented by the parties and make factual findings. The Court presumably took this step because various parties asked the Supreme Court to consider evidence that the Committee on Attorney Advertising had not considered (since the Committee did not inform any interested parties that it was making any inquiry in the first place). Since the Supreme Court is not typically cast in the role of a factfinder, it decided to appoint a factfinder. The Court could have returned the case to the Committee to flesh out the record, but it opted, instead, to enlist former Superior Court and Appellate Division judge Robert A. Fall.

FTC Objects to Proposed Louisiana Bar Association Attorney Advertising Restrictions

Federal Trade Commission (FTC) Office of Policy Planning, Bureau of Economics, Bureau of Consumer Protection, and Bureau of Competition to submitted joint comments to the Louisiana State Bar Association (LSBA) regarding proposed revisions to the rules of professional responsibility with respect to attorney advertising.  The comments express concern that "the proposed Louisiana rules would unnecessarily restrict truthful advertising by attorneys in the state."

The comments state the staff's belief the staff’s belief that deceptive advertising by lawyers should be prohibited, but that “reasonable restrictions on advertising that are specifically tailored to prevent deceptive claims in a way that preserve competition provide the optimal level of protection for consumers.”  The comments conclude that consumers benefit from robust competition among attorneys and from important price and quality information that advertising can provide: 

“Rules that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services in Louisiana.”

The proposed rules are very similar to those recently proposed in New York State, about which the FTC submitted comments in September 2006. The FTC staff recommends that the LSBA reject or modify the proposed rules to address competitive concerns and to avoid limiting consumer choice.

Click here to download the FTC's comments to the LSBA.

NYU Professor Stephen Gillers on Use of Super Lawyers Designation

At our request, Stephen Gillers, professor at the New York University School of Law, and a nationally-renowned expert in the regulation of lawyers and professional responsibility, provided his opinion on use of the Super Lawyers designation by attorneys licensed in New York. In part, his opinion reads:

“You have asked me whether in my opinion New York lawyers listed in Super Lawyers may advertise or publicize that fact consistent with the provisions of the New York Code of Professional Responsibility (as recently amended) that address professional advertising. My answer is that they may.”

Professor Gillers cautions that attorneys should not be misleading -- that they should "make it clear that the lawyer is included or listed in Super Lawyers, not that the lawyer is presenting himself or herself as a super lawyer." He also suggests that advertisements not in the Super Lawyers publication refer to the Super Lawyers website to provide consumers a link to the selection process.

Click here to download the full text of Prof. Gillers' Opinion.

Click here to download Attachment A - Prof. Gillers' CV.

Click here to download Attachment B - excerpts from Key Professsional Media's letter to Michael Colodner (ref. in Prof. Gillers' opinion), 8/30/2006

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Martindale-Hubbell Sees Threat in Opinion 39

LexisNexis Martindale-Hubbell has submitted a motion to intervene in the New Jersey Supreme Court proceedings relating to Opinion 39 that restricts attorney advertising. Their brief is attached here.  Martindale Hubbell's brief is aimed at correcting alleged errors on how its Peer Review Ratings system has been characterized in briefs by Best Lawyers and Super Lawyers. Moreover, Martindale Hubbell seeks to participate in oral arguments or other hearings required by the New Jersey Supreme Court and have input into rule-making that may result from the court's review of Opinion 39.

The potential addition of Martindale-Hubbell highlights the fact that Opinion 39's restrictive approach to commercial speech by attorneys has potentially far-reaching effects on a wide range of activities. Martindale-Hubbell states that:

"Martindale-Hubbell has an interest in the outcome of this Court's review of Opinion 39 as it likely will impact Martindale-Hubbell's right to continue its Peer Review Rating system. Though Opinion 39 approved of Martindale-Hubbell's current Rating system, Martindale-Hubbell seeks to protect its interest and rights to expand or modify its Rating system. Second, this Court's review of Opinion 39 may impede or impair Martindale-Hubbell's interest by limiting its flexibility to change the services it provides and manner in which it markets these services, and locking it into its current Rating system."

The Martindale-Hubbell brief later states:

"The Petition for Review of Opinion 39 raises important constitutional issues. A per se ban of participation in and use of certain peer review rating systems potentially infringes on the legal community and consumers of a useful means to refer and select counsel."

For our part, we believe our brief accurately portrays the Martindale-Hubbell attorney rating publications, as well as its related policies and procedures.

Click here to read the Martindale-Hubble brief, and, as always, feel free to email me at bwhite@lawandpolitics.com.

New York Revised Rules A Victory for Consumers

Good news for consumers and lawyers named in New York Super Lawyers magazine. It appears New York will not be following New Jersey's lead in prohibiting lawyers from mentioning the Super Lawyers designation in their advertising.  The revised NY rules, released today, incorporate language we recommended in the comments to the proposed rules we submitted last August.

The rules now state that lawyers may include information as to "bona fide professional ratings." Read Section 1200.6 (b)(1)  here. This is a victory not just for us and all other bona fide rating services, but most importantly, for consumers who need this sort of reliable information in order to make rational judgments in selecting legal counsel.

UPDATE - JAN 19, 2007:  There was an article published today about the New York rules in the New Jersey Law Journal (via law.com).  The author, Henry Gottlieb, notes that: 

"The New York courts have amended advertising rules to allow attorneys to tout their "bona fide professional ratings" -- another example that New Jersey could be out of step if it adopts a proposed ban on services like Super Lawyers and Best Lawyers in America."

Click here for the full text. 

Super Lawyers Response to New Jersey AG Opposition Brief

Today, we filed our response to the New Jersey Attorney General’s Opposition brief, filed back in November.  Click here to download our legal brief. 

As part of our response to the Committee’s opinion, we retained one of the nation’s leading market research and consulting firm Global Strategies Group (GSG) to conduct an independent assessment of our methodology.  They concluded that our process is scientific and objective.  They state:

“…the process adopted by Super Lawyers to identify and select its nominees is as scientific and objective as any such model of a complex system could be.  In its particulars – the broad range of sources used to obtain a large and representative nominee pool, the comprehensive data search on each candidate, the protocols used to evaluate nominees, the expert panel system, and the meticulous checks and balances built into the process – it leaves little to chance or idiosyncratic influence.

In our brief, we argue that lawyers have a constitutionally protected right to advertise a Super Lawyers designation, and that the New Jersey Committee on Attorney Advertising is wrong in asserting that advertising a Super Lawyers listing is inherently misleading.

At this point, the timing of what happens next is up to the Supreme Court and on that point, my crystal ball is no better than yours.  As always, we welcome your questions and comments.  Feel free to email me at bwhite@lawandpolitics.com

UPDATE 12/20/2006: We now have added the briefs filed by the other parties affected by Opinion 39, Best Lawyers and New Jersey Monthly, which raise many of the same points we made in our brief.  

NJ Attorney General Files Opposition Brief

The New Jersey Attorney General has filed its Brief In Opposition To Our Petition. It is disappointing that despite having access to the details of our Petition, the Attorney General continues to misstate the Super Lawyers selection process, as well as details of our publications, policies and procedures.

We respectfully disagree with all of the positions taken by the Attorney General in the Opposition Brief, and our attorneys will file a formal response in the next few days.

In the meantime, the stay granted by the New Jersey Supreme Court continues in force.

The AG's Brief unfortunately propagates the CAA's elitist perspective reflected in Opinion 39 (peer review) and Opinion 33 (testimonials)...that consumers are too stupid to understand what lawyers do, and too imprudent to make wise, informed decisions in selecting a lawyer. Worse, the AG has taken the position consumers are so naive they must be shielded from the most rigorous and thorough peer review process imaginable -- that even when experts are prepared to give them critical information about an attorney's reputation, consumers should not be allowed to assess the information because someone may incorrectly believe it is an absolute guarantee of quality or success.

NJ Attorney General Requests Extension

The Committee on Attorney Advertising’s Response to our Petition for Review of Opinion 39 was to have been filed and served on our New Jersey attorneys on Friday November 3^rd. Late that afternoon, our attorneys received a phone call from the Attorney General’s office advising that their Response was not ready and that they would be asking the Court for yet another extension of time. This will be the third time that the Attorney General has requested more time. Although our attorneys have extended the courtesy to the Attorney General’s office by not opposing their prior two requests for more time, our attorneys are now prepared to oppose this request. We believe the issues raised in our Petition require the Court’s immediate attention. We will therefore continue to do everything possible to impart to the Court the sense of urgency we feel about the damage that Opinion 39 has caused to members of the bar and to the consumers of legal services.

Tennessee's Opinion

The Board of Professional Responsibility of the Tennessee Supreme Court issued a non-binding Advisory Ethics Opinion yesterday regarding an inquiry into whether a lawyer or law firm may advertise their selection in listings or publications such as Super Lawyers or Best Lawyers in America.

The Board cited Tennessee's Rules of Professional Conduct, noting that "the use of subjective characterizations or descriptions conferred by organizations may be permissible if the organization has made inquiry into the lawyer's fitness and does not issue or confer such characterizations for a price."

In a non-binding opinion, the Board concluded that:

"Based on the information which has been reviewed regarding the selection methodology of both the captioned publications, we are unable to conclude that their selection methodologies are indiscriminate, or that lawyers are conferred such designations for a price.

"Accordingly, law firms and lawyers are permitted to advertise the facts that certain lawyers have been selected by and listed within the above publications, as long as the lawyers do not go further and refer to themselves subjectively as "super" or "the best" on the basis of such designations contained within these publications."

Click here to download the opinion.