On May 4, 2016, the New Jersey Supreme Court Committee on Attorney Advertising published a “Notice to the Bar” regarding advertising of “awards, honors, and accolades that compare a lawyer’s services to other lawyers’ services.” Such accolades include being placed on lists of “Super Lawyers,” “Best Lawyers,” and “Rising Stars” among others. See Notice to the Bar, Attorney Advertising of Awards, Honors, and Accolades That Compare a Lawyer’s Services to Other Lawyers’ Services—A Reminder from the Committee on Attorney Advertising, N.J. Sup. Ct. Cmte. on Attorney Advertising (May 4, 2016). The committee issued the notice to remind lawyers that they may refer to such honors “only when the basis for the comparison can be verified and the organization has made adequate inquiry into the fitness of the individual lawyer.” Id. at 1.
As to the adequacy of the inquiry, the committee suggests that it must “be more rigorous than a simple tally of the lawyer’s years of practice and lack of disciplinary history.” Rather, the “basis for the comparison must be substantiated, bona fide, and verifiable.” Id. (emphasis in original). Even then, the committee advises that the lawyer must “provide a description of the standard or methodology . . . either in the advertising itself or by reference to a ‘convenient, publicly available source.'” Id. at 2. Finally, the lawyer must only note that “he or she was included in the list . . . and must not describe the lawyer as being a “Super Lawyer” or the “Best Lawyer.” Id. So, for example, a lawyer can publicly state only that “Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thompson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection_process_detail.html.”
Like the corresponding New Jersey rule, Louisiana Rule of Professional Conduct 7.2(c)(1) prohibits a lawyer from making a “misleading or deceptive communication” about the lawyer or the lawyer’s services. See La. Rules of Prof’l Cond. Rule 7.2(c)(1). The rule further provides that a communication violates this rule if it “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.” See id. Rule 7.2(c)(1)(G). “Super Lawyer” and “Best Lawyer” lists have generated controversy in Louisiana as they have elsewhere.
Whether a lawyer is the “best” or a “better” lawyer is undoubtedly a generalized “comparison” of the listed lawyer to others in the universe of all lawyers. But requiring that the “methodology” used to create such lists be “rigorous” will not improve their quality or usefulness to prospective clients. Whether someone is a good or a better or the best lawyer—like whether someone is a good or a better or the best chef, actor, or guitarist—is something that is not verifiable through any reliable, repeatable, methodology that uses measurable independent variables. Ultimately, whether someone is a good or a better or the best lawyer is a matter of opinion. Consumers of legal services are smart enough to understand that. New Jersey’s attempt to police the quality of advertised opinions through rule-making and “reminders,” although well meaning, is simply a waste of regulatory effort.