Do Comparative Lawyer Rankings Run Afoul of Ethical Guidelines?

The most worthy and effective advertisement possible ' is the establishment of a well-merited reputation for professional capacity and fidelity to trust. American Bar Association Canons of Professional Ethics, Canon 27, 1908.

A Brief History

The practice of law has long been categorized as a profession in the same group as the practice of medicine or divinity. The traditional view, originating in Great Britain, was that law was no mere “trade”; rather, attorneys were seen as delivering a vital public service. To enforce the responsibility inherent in this profession, strict ethical guidelines were adopted that included the prohibition of most forms of commercial advertising by attorneys for much of the 20th century. In fact, the Canon of Professional Ethics approved by the ABA in 1908 allowed just “ordinary, simple business cards.” A century and two Supreme Court decisions later, the ABA's Model Rules of Professional Conduct, adopted in many jurisdictions, now allow attorney advertisements but restrict “misleading” communications. Significantly, such misleading communications may include unsubstantiated comparisons to other lawyers. See ABA Model Rules of Professional Conduct, Rule 7.1, cmt. 3. The emergence of publications that rank lawyers and provide attorneys the opportunity to pay for individual promotion have brought these rules to the fore: How should the profession balance the competing concerns of consumer protection and an attorney's right to commercial speech and consumer protection.

Attorney Ads

Restrictions on attorney advertisements began melting away in the late 1970s, with Bates v. State Bar of Arizona, 433 U.S. 350 (1977). In that case, the Supreme Court struck down an Arizona rule against all commercial publications by attorneys, finding that such advertisements were commercial speech and thus protected by the First Amendment. “[T]he disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance.” Id. at 365. Then, in 1990 the Court ruled that an Illinois attorney should be allowed to publicize his National Board of Trial Advocacy certification as a trial specialist, striking down Illinois rules against advertising such designations. See Peel v. Attorney Registration and Disciplinary Committee of Illinois, 496 U.S. 91 (1990). According to Peel, a state may not “completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA.” Id. at 110.

These decisions paved the way for attorney ranking publications, which in effect provide consumers in a given market with what purport to be a list of the best lawyers in the area. These publications employ relatively straightforward selection procedures. Once candidates enter the nomination pool through one of several routes, a research team typically evaluates each candidate based on a number of categories of peer recognition and professional achievement, awarding points on the basis of verdicts, professional activity, licenses and certifications, and similar attributes. Candidates are then normally reviewed by a panel of peers and grouped into firm-size categories. In one case, attorneys with the highest point total within each category are selected for inclusion, with no more than 5% of the attorneys in a state represented.

For a fee, attorneys can increase the prominence of their listings. Advertising options range from the inclusion of a color photo and a 100-word biography to multi-page spreads created with the assistance of a professional photographer and a copy editor. Many publications utilize this model. One ranks individual lawyers and firms in various “bands” for free, but also offers options for “enhanced profiles.”

Although such evaluative rankings appear to be gaining popularity, they raise interesting ethical issues. Any ranking or designation, by its nature, implicitly or explicitly compares the attorneys it names with those it does not. Most states allow comparative advertisements only if the comparison is substantiated and if it is done in way that does not mislead the consumer. The first question, then, is whether these rankings are done in a meaningful way. The second, perhaps more difficult, question is whether these rankings mislead the consumer. One potential stumbling block could be the rankings' use of superlatives such as “super” or “best.” Some argue that such terms are inherently misleading. No matter the number of objective professional criteria on which they are based, these terms are not precise and may induce consumers into thinking that a particular result can be achieved by this attorney only. Some are also concerned that the publications' options for ranked attorneys to pay for the prominence of their listings. Although basic attorney designations in the main listing are uniform, the more noticeable purchased listings could imply greater distinction among the ranked attorneys. Accordingly, critics argue that a consumer who is not familiar with the policies of such publications could fairly believe that the more prominently featured attorneys are more skilled, even though the distinction is tied solely to that attorney's (or firm's) pocket book.

Case Law

The few jurisdictions to have addressed these questions so far have generally approved the advertisements. Some, like Arizona, have concluded that the rankings are not misleading: “A consumer who wishes to investigate the underlying basis for a lawyer's listing in The Best Lawyers in America can simply read the introduction to the publication.” State Bar of Arizona Comm. on the Rules of Prof'l Conduct, Op. No. 05-03 at 4 (July 2005). Virginia allows the advertisements, but prohibits descriptions such as “the best” or “the greatest” on the basis of that listing. Connecticut found that the advertisements are inherently misleading, but noted that this could be alleviated by a disclaimer detailing the selection process.

Most recently, the New Jersey Supreme Court addressed these issues in In re Opinion 39 of the Committee on Attorney Advertising, 197 A.2d 722 (N.J. 2008). The court reviewed a 2006 decision by the state's Committee on Attorney Advertising that found that advertisements describing attorneys as Super Lawyers or Best Lawyers in America violated New Jersey's prohibition against comparative advertisement. See Committee on Attorney Advertising Appointed By The New Jersey Supreme Court Opinion 39 at 2 (July 19, 2006). Staying the Committee's decision, the court first appointed a Special Master to conduct a detailed examination of the matter and present recommendations to the court. Regarding the process employed, the Special Master closely examined the recognition process of rankings publications. His July 2008 report stated, “Although each methodology can be criticized, and perhaps improved, it is very clear from this record that each
is a comprehensive, good-faith and detailed attempt to produce a list of lawyers that have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field.” According to the Special Master, the selection processes seem to be as substantiated as any rankings of this sort can be. The court agreed, adopting the Special Master's findings and concluding that such rankings are not misleading: “[M]ere consumer unfamiliarity with a privately conferred honor or designation does not establish that advertising such honor or designation is actually or inherently misleading so long as the honor or designation is actually issued by a legitimate professional organization with verifiable criteria that are available to consumers.” In re Opinion 39, 197 A.2d at 728. The court therefore held that a flat ban on such advertisements could raise significant constitutional questions and vacated Opinion 39.

Issues Remain

Despite the New Jersey court ruling permitting comparative attorney rankings, issues remain regarding the potentially misleading effects of advertisements based on them. While the New Jersey Supreme Court vacated the ruling strictly barring these publications, it also referred the ethical rule at issue back to the state bar for review and redrafting, in order to strike a balance between constitutional concerns and consumer protection. This could involve, as described in the Special Master's report, a rule requiring a disclaimer for any advertisement of attorney rankings. Such a requirement is currently in place in jurisdictions including Connecticut, Pennsylvania, Florida and Arizona. Another option is the regime currently in place in New York, which permits advertisement of “bona fide professional rankings” only. This approach focuses on whether a ranking is in good faith, which again seems to implicate the question of whether the ranking was done in a substantive manner. Pennsylvania has a similar requirement. Finally, some states, including Texas and Kentucky, require that attorney advertising be prescreened and approved by an advertising review commission.

Conclusion

Regardless of whether evaluative rankings gain in popularity as a method of promoting legal services or run into tighter regulation involving disclaimers, approvals, or continued attempts at outright bans, it remains the case, as pointed out by the ABA more than a century ago in the Canons of Professional Ethics, that the best advertisement for “super” lawyers is a well-earned reputation for doing “super” work.

Malachi Boyuls and Charles Floyd are litigation associates in the Dallas office of Gibson, Dunn, & Crutcher, LLP.

The most worthy and effective advertisement possible ' is the establishment of a well-merited reputation for professional capacity and fidelity to trust. American Bar Association Canons of Professional Ethics, Canon 27, 1908.

A Brief History

The practice of law has long been categorized as a profession in the same group as the practice of medicine or divinity. The traditional view, originating in Great Britain, was that law was no mere “trade”; rather, attorneys were seen as delivering a vital public service. To enforce the responsibility inherent in this profession, strict ethical guidelines were adopted that included the prohibition of most forms of commercial advertising by attorneys for much of the 20th century. In fact, the Canon of Professional Ethics approved by the ABA in 1908 allowed just “ordinary, simple business cards.” A century and two Supreme Court decisions later, the ABA's Model Rules of Professional Conduct, adopted in many jurisdictions, now allow attorney advertisements but restrict “misleading” communications. Significantly, such misleading communications may include unsubstantiated comparisons to other lawyers. See ABA Model Rules of Professional Conduct, Rule 7.1, cmt. 3. The emergence of publications that rank lawyers and provide attorneys the opportunity to pay for individual promotion have brought these rules to the fore: How should the profession balance the competing concerns of consumer protection and an attorney's right to commercial speech and consumer protection.

Attorney Ads

Restrictions on attorney advertisements began melting away in the late 1970s, with Bates v. State Bar of Arizona , 433 U.S. 350 (1977). In that case, the Supreme Court struck down an Arizona rule against all commercial publications by attorneys, finding that such advertisements were commercial speech and thus protected by the First Amendment. “[T]he disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance.” Id. at 365. Then, in 1990 the Court ruled that an Illinois attorney should be allowed to publicize his National Board of Trial Advocacy certification as a trial specialist, striking down Illinois rules against advertising such designations. See Peel v. Attorney Registration and Disciplinary Committee of Illinois , 496 U.S. 91 (1990). According to Peel, a state may not “completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA.” Id. at 110.

These decisions paved the way for attorney ranking publications, which in effect provide consumers in a given market with what purport to be a list of the best lawyers in the area. These publications employ relatively straightforward selection procedures. Once candidates enter the nomination pool through one of several routes, a research team typically evaluates each candidate based on a number of categories of peer recognition and professional achievement, awarding points on the basis of verdicts, professional activity, licenses and certifications, and similar attributes. Candidates are then normally reviewed by a panel of peers and grouped into firm-size categories. In one case, attorneys with the highest point total within each category are selected for inclusion, with no more than 5% of the attorneys in a state represented.

For a fee, attorneys can increase the prominence of their listings. Advertising options range from the inclusion of a color photo and a 100-word biography to multi-page spreads created with the assistance of a professional photographer and a copy editor. Many publications utilize this model. One ranks individual lawyers and firms in various “bands” for free, but also offers options for “enhanced profiles.”

Although such evaluative rankings appear to be gaining popularity, they raise interesting ethical issues. Any ranking or designation, by its nature, implicitly or explicitly compares the attorneys it names with those it does not. Most states allow comparative advertisements only if the comparison is substantiated and if it is done in way that does not mislead the consumer. The first question, then, is whether these rankings are done in a meaningful way. The second, perhaps more difficult, question is whether these rankings mislead the consumer. One potential stumbling block could be the rankings' use of superlatives such as “super” or “best.” Some argue that such terms are inherently misleading. No matter the number of objective professional criteria on which they are based, these terms are not precise and may induce consumers into thinking that a particular result can be achieved by this attorney only. Some are also concerned that the publications' options for ranked attorneys to pay for the prominence of their listings. Although basic attorney designations in the main listing are uniform, the more noticeable purchased listings could imply greater distinction among the ranked attorneys. Accordingly, critics argue that a consumer who is not familiar with the policies of such publications could fairly believe that the more prominently featured attorneys are more skilled, even though the distinction is tied solely to that attorney's (or firm's) pocket book.

Case Law

The few jurisdictions to have addressed these questions so far have generally approved the advertisements. Some, like Arizona, have concluded that the rankings are not misleading: “A consumer who wishes to investigate the underlying basis for a lawyer's listing in The Best Lawyers in America can simply read the introduction to the publication.” State Bar of Arizona Comm. on the Rules of Prof'l Conduct, Op. No. 05-03 at 4 (July 2005). Virginia allows the advertisements, but prohibits descriptions such as “the best” or “the greatest” on the basis of that listing. Connecticut found that the advertisements are inherently misleading, but noted that this could be alleviated by a disclaimer detailing the selection process.

Most recently, the New Jersey Supreme Court addressed these issues in In re Opinion 39 of the Committee on Attorney Advertising, 197 A.2d 722 (N.J. 2008). The court reviewed a 2006 decision by the state's Committee on Attorney Advertising that found that advertisements describing attorneys as Super Lawyers or Best Lawyers in America violated New Jersey's prohibition against comparative advertisement. See Committee on Attorney Advertising Appointed By The New Jersey Supreme Court Opinion 39 at 2 (July 19, 2006). Staying the Committee's decision, the court first appointed a Special Master to conduct a detailed examination of the matter and present recommendations to the court. Regarding the process employed, the Special Master closely examined the recognition process of rankings publications. His July 2008 report stated, “Although each methodology can be criticized, and perhaps improved, it is very clear from this record that each
is a comprehensive, good-faith and detailed attempt to produce a list of lawyers that have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field.” According to the Special Master, the selection processes seem to be as substantiated as any rankings of this sort can be. The court agreed, adopting the Special Master's findings and concluding that such rankings are not misleading: “[M]ere consumer unfamiliarity with a privately conferred honor or designation does not establish that advertising such honor or designation is actually or inherently misleading so long as the honor or designation is actually issued by a legitimate professional organization with verifiable criteria that are available to consumers.” In re Opinion 39, 197 A.2d at 728. The court therefore held that a flat ban on such advertisements could raise significant constitutional questions and vacated Opinion 39.

Issues Remain

Despite the New Jersey court ruling permitting comparative attorney rankings, issues remain regarding the potentially misleading effects of advertisements based on them. While the New Jersey Supreme Court vacated the ruling strictly barring these publications, it also referred the ethical rule at issue back to the state bar for review and redrafting, in order to strike a balance between constitutional concerns and consumer protection. This could involve, as described in the Special Master's report, a rule requiring a disclaimer for any advertisement of attorney rankings. Such a requirement is currently in place in jurisdictions including Connecticut, Pennsylvania, Florida and Arizona. Another option is the regime currently in place in New York, which permits advertisement of “bona fide professional rankings” only. This approach focuses on whether a ranking is in good faith, which again seems to implicate the question of whether the ranking was done in a substantive manner. Pennsylvania has a similar requirement. Finally, some states, including Texas and Kentucky, require that attorney advertising be prescreened and approved by an advertising review commission.

Conclusion

Regardless of whether evaluative rankings gain in popularity as a method of promoting legal services or run into tighter regulation involving disclaimers, approvals, or continued attempts at outright bans, it remains the case, as pointed out by the ABA more than a century ago in the Canons of Professional Ethics, that the best advertisement for “super” lawyers is a well-earned reputation for doing “super” work.

Malachi Boyuls and Charles Floyd are litigation associates in the Dallas office of Gibson, Dunn, & Crutcher, LLP.