Caution: Legal Directories under Attack
By Will Hornsby
Will Hornsby is author of the ABA book Marketing and Legal Ethics and serves as staff counsel to the ABA Standing Committee on the Delivery of Legal Services. He can be reached at whornsby@staff.abanet.org.
Last summer, the New Jersey Committee on Attorney Advertising surprised practicing Garden State lawyers by issuing an opinion concluding that it is unethical for lawyers to participate in the legal directories, Super Lawyers and The Best Lawyers in America.
Legal directories have been a staple of law practice marketing for over a hundred years. Simple, unembellished listings were one of the few marketing tools available during the period when lawyer advertising was banned from 1908 to 1977. Today, directories include a wide variety of methodologies. For many, any lawyer in good standing can pay to be listed. For some, listings are free, but lawyers must then pay to include additional information such as their credentials or representative clients.
However, Super Lawyers and Best Lawyers are different from most directories because the lawyers who are listed are selected by a “peer review” process. Essentially, peer review is a process centered on surveying a large number of lawyers and asking them which lawyers to their knowledge provide superior services in various fields of practice in their geographic area. Typically in a peer review process, lawyers cannot designate either themselves or other lawyers in their firm. Super Lawyers and Best Lawyers also impose other safeguards in their efforts to identify the lawyers with reputations for high-quality service. Those lawyers who are designated most frequently are then listed in the directory.
The New Jersey opinion concluded that participation in these two directories would be in violation of two specific state rules of professional conduct. First, the opinion determined that this peer review procedure was inconsistent with the New Jersey rule that prohibits a lawyer from comparing his or her services with the services of another lawyer. Second, the New Jersey opinion was based on an ethics rule that prohibits communications that are “likely to create an unjustified expectation about the results the lawyer can achieve.” In applying this rule, the committee took particular offense at the use of the superlatives “super” and “best,” which, it concluded, can mislead the public about the capabilities of the lawyers.
Unlike in most states, the New Jersey Committee on Advertising has authority from the state’s supreme court to issue opinions that obligate lawyers. In other words, it is unethical to violate the findings of an opinion. As a result, the corporate owner of Super Lawyers successfully petitioned for a stay of the opinion until the opinion could be reconsidered or the issues heard. Therefore, New Jersey lawyers can continue to participate in these directories until further word on the matter.
What does this mean for lawyers in other states? First, lawyers should check the rules of their states to see if they are similar to those of New Jersey. Advertising rules can be found at www.abanet.org/adrules. Most states do not prohibit comparisons across the board, like New Jersey, but many prohibit unsubstantiated comparisons of the lawyer’s services with that of another lawyer. If the peer review process used by the directories is one that is “substantiated,” then participation is not likely to violate this rule.
Many states also include a prohibition against the creation of unjustified expectations about the results a lawyer may achieve. This rule was designed to recognize that every case is unique and that prospective clients cannot rely on past successes obtained by a particular lawyer as a barometer of success in their cases. It has most frequently been applied to prohibit testimonials that involve the outcome of prior cases.
More Reasons for Caution
Beyond participation in the directories, lawyers need to be cautious about advertising the fact that they are listed. There are two common traps here. First, while communications, such as press releases, advertisements, or Web site bios, can make reference to the fact that the lawyer is honored by being listed, the communication should not infer that the lawyer is in fact superior than other lawyers by virtue of the designation. In other words, in many jurisdictions it would be inappropriate to advertise something to the effect that “Linda Lawyer is listed in Super Lawyers and is tops in her field.” The implication stemming from the listing is likely to cross that line and become an unsubstantiated comparison. Second, lawyers should be cautious about overstating their listing. For example, a lawyer who was listed one time, ten years ago, should consider the possibility it is misleading to continue referencing the listing without a date identifying when the listing took place.
Lawyers with questions about the propriety of participating in various directories or advertising their participation should check their state rules of professional conduct and the ethics opinions that interpret those rules. Directory listings can be an important part of a lawyer’s client development strategy, but as the New Jersey opinion illustrates, participation in some directories may be considered out of compliance with a state’s rules of professional conduct. While we watch to see what ultimately happens in New Jersey, lawyers should proceed with caution in all states.
