September 3, 2004

The Committee on Attorney Advertising recently considered a grievance regarding an attorney’s solicitation letter that touted his inclusion in a “Super Lawyers” attorney ranking list and membership in the “Million Dollar Advocates Forum.” The grievance was resolved informally after the attorney revised his solicitation letter. Because the problem is likely to recur, the Committee decided to issue this opinion to provide guidance to the bar on permissible language when communicating inclusion in such lists or referring to membership in organizations such as the “Million Dollar Advocates Forum.”

In 2006, the Committee on Attorney Advertising issued Opinion 39, concerning attorneys advertising inclusion in ranking lists published by organizations such as Best Lawyers of America (“Best Lawyers”) and Key Professional Media (“Super Lawyers”). 185 N.J.L.J. 360, 15 N.J.L. 1549 (July 24, 2006). The New Jersey Supreme Court granted a petition for review of Opinion 39 and remanded the matter to a Special Master, who held a hearing and issued a comprehensive Report that was presented to the Court. In re Opinion 39 of the Committee on Attorney Advertising, 197 N.J. 66 (2008). In its decision, the Court acknowledged that the language of Rule of Professional Conduct 7.1(a)(3) prohibited statements comparing attorneys’ services and held that it would revise the Rule to “take into account the policy concerns expressed by the Rule while, at the same time, respecting legitimate commercial speech activities.” Id. at 79-80.

The Court issued amendments to Rule of Professional Conduct 7.1 effective November 2, 2009. Amended Rule of Professional Conduct 7.1(a)(3) provides that “a communication is false or misleading if it . . . compares the lawyer’s services with other lawyers’ services, unless (i) the name of the comparing organization is stated, (ii) the basis for the comparison can be substantiated, and (iii) the communication includes the following disclaimer in a readily discernable manner: ‘No aspect of this advertisement has been approved by the Supreme Court of New Jersey’ . . . .” The official comment to amended Rule of Professional Conduct 7.1 provides:

A truthful communication that the lawyer has received an honor or accolade is not misleading or impermissibly comparative for purposes of this Rule if: (1) the conferrer has made inquiry into the attorney’s fitness; (2) the conferrer does not issue such an honor or accolade for a price; and (3) a truthful, plain language description of the standard or methodology upon which the honor or accolade is based is available for inspection either as part of the communication itself or by reference to a convenient, publicly available source.

Amended Rule of Professional Conduct 7.1(a)(3), therefore, requires that the factual basis for a comparison of attorneys’ services must be verifiable. Further, the attorney must include the name of the comparing organization and must be satisfied that the conferrer has made appropriate inquiry into the attorney’s fitness. The attorney must include a description of the standard or methodology on which the accolade is based. Lastly, the attorney must state that the advertisement has not been approved by the Supreme Court. This information is necessary to protect consumers from communications that are misleading and likely to raise unjustified expectations. When adequate information is available to consumers of legal services, they should be able to differentiate between accurate puffery and unsupportable exaggeration.

The solicitation letter recently reviewed by the Committee provided: “Because of my dedication to our clients and success in the courtroom, I have been named as a Super Lawyer by New Jersey Monthly Magazine for five (5) consecutive years (2006 through 2010), and I am a Life Member of the Million Dollar Advocates Forum, which puts me in an elite group of less than one percent (1%) of all lawyers in the United States.” This language grossly violates the rules governing attorney advertising.

The advertisement calls the attorney “a Super Lawyer” instead of saying that he was included in the “Super Lawyers” list published by Thomson Reuters.^¹ There is an obvious and crucial difference between stating that one is “a Super Lawyer” and stating that one received an accolade or honor by being included on a list called “Super Lawyers.” This point was addressed by the Special Master in the Report submitted to the Court in In re Opinion 39 of the Committee on Attorney Advertising, supra:

Where superlatives are contained in the title of the list itself, such as here, the advertising must state and emphasize only one’s inclusion in the Super Lawyers or The Best Lawyers in America list, and must not describe the attorney as being a “Super Lawyer” or the “Best Lawyer.”

The claim in the solicitation letter that the attorney is in “an elite group of less than one percent (1%) of all lawyers in the United States” also is improper. As the Special Master stated in the Report:

Likewise, claims that the list contains “the best” lawyers or, e.g., “the top 5% of attorneys in the state,” or similar phrases are misleading, are usually factually inaccurate and should be prohibited.

The Committee agrees with these comments of the Special Master regarding permissible language and phrasing to be used by attorneys touting this type of honor or accolade. The claim that an attorney is “super,” “best,” “elite,” or in a top percentile of attorneys, cannot be factually substantiated. Such hyperbolical words and phrases are utterly and inherently misleading and may not be used in attorneys’ communications.^²

Attorneys must also refrain from making inaccurate or misleading statements about the reasons for inclusion in such lists or membership in organizations such as the “Million Dollar Advocates Forum.” In the solicitation letter reviewed by the Committee, the attorney stated that he was included in the list called “Super Lawyers” and obtained membership in the “Million Dollar Advocates Forum” “because of [his] dedication to [his] clients and success in the courtroom.”

An attorney obtains inclusion in the list generated by Thomson Reuters (“Super Lawyers”), Best Lawyers in America (“Best Lawyers”), and similar organizations by receiving a sufficient score or rating in accordance with the organization’s standards and methodology. As required by amended Rule of Professional Conduct 7.1(a)(3), the advertisement must include a description of the standard or methodology used by the organization. An attorney obtains membership in the “Million Dollar Advocates Forum” because the attorney obtained a recovery of at least one million dollars in a case and then paid a substantial fee to the “Forum” for lifetime membership. Advertisements must include a description of the criteria to be met to obtain membership in organizations such as the “Forum.” Attorneys may not casually state that a reason such as “dedication to clients” was the basis for their receipt of this type of honor or accolade.

It has also come to the Committee’s attention through the hotline that some newspapers conduct contests to anoint attorneys, businesses, and pizza parlors as “top” in the region. Apparently, this type of accolade is conferred based on online voting by newspaper readers. There is no indication that the newspaper conducts an inquiry into the fitness of the attorneys who “win” such contests. These appear to be mere popularity contests and attorneys may not refer to such honors or accolades in any communications about the attorney’s services.

Accordingly, attorneys may communicate that they are included in ranking lists only if the factual basis for the comparison of attorneys’ services can be substantiated or verified, and the comparing organization has made appropriate inquiry into the attorney’s fitness. The attorney must include in the communication the name of the comparing organization and a description of the standard or methodology on which the honor or accolade is based. The attorney must state that the advertisement has not been approved by the Supreme Court. The attorney must include the year the honor or accolade was conferred and the specialty, if any, for which the attorney was listed. When the title of the list contains a superlative such as “super,” “best,” “leading,” “top,” or “elite,” the attorney must state and emphasize only the attorney’s inclusion in the list and must not state that he or she is “super,” “best,” “leading,” “top,” or “elite.” Similarly, an attorney may not state that the list in which he or she is included reflects “the best” attorneys or a “top percentage” of attorneys, or that he or she belongs to an organization comprising an “elite percentage” of attorneys. Such statements cannot be substantiated and are inherently misleading.

1 Key Professional Media “Super Lawyers” list was acquired by Thomson Reuters in February, 2010.

2 The Special Master also noted that an advertisement touting inclusion in such lists must “state the year of inclusion in the listing as well as the specialty for which the lawyer was listed.” Id. at 302. Stating the year of inclusion and the attorney’s specialty, if any, will inform potential clients about the relevance of the honor or accolade. Accordingly, the Committee also agrees with, and hereby adopts, this finding of the Special Master.