Issued by the Committee on Attorney Advertising
September 21, 2022
COMMITTEE ON ATTORNEY ADVERTISING
Appointed by the Supreme Court of New Jersey
OPINION 48
Supplementing Opinion 42: Rule of Professional
Conduct 7.1(a)(3) – Honors, Awards, and
Accolades that Compare Lawyers’ Services With
Other Lawyers’ Services
Rule of Professional Conduct 7.1(a)(3) prohibits statements by lawyers that
“compare[] the lawyer’s service with other lawyers’ services . . . .” The Supreme
Court Committee on Attorney Advertising continues to receive numerous
grievances regarding attorney advertising of awards, honors, and accolades that
compare a lawyer’s services to other lawyers’ services. The Committee issued
Opinion 42 in 2010 and Notices to the Bar in 2016 and 2021 to inform lawyers of
the rules with regard to advertising awards, honors, and accolades. The Committee
hereby issues this Opinion to present more specific guidance to lawyers on this
matter.
The ethics rules governing advertising are intended to protect the public
from statements that are false, deceptive, or misleading. Bates v. State Bar of
Arizona, 433 U.S. 350, 3831977). Advertising that makes claims about the
“quality of the legal services . . . are not susceptible of measurement or
verification; accordingly, such claims may be so likely to be misleading as to
warrant restriction.” Id. at 383-84. When lawyers state that they are included on a
list called “Top Attorneys,” for example, the lawyers are making a statement of
fact – they were included on the list – but they are also making a statement that
supports an inference about the quality of their legal services, that their services are
“top” or better than other lawyers’ services. Such statements can be misleading.
See Peel v. Attorney Registration and Disciplinary Comm’n of Illinois, 496 U.S.
91, 1011990) (advertising a lawyer certification issued by an organization that
does not inquire into the lawyer’s fitness can be misleading). Accordingly, Rule
of Professional Conduct 7.1(a)(3) prohibits lawyers from making comparative
statements.
When referring to an accolade or honor that compares lawyers, the factual
basis for the comparison must be verifiable. RPC 7.1(a)(3)(ii). Further, the
conferrer of the award must have made appropriate “inquiry into the fitness of the
lawyer.” Official Comment to Rule of Professional Conduct 7.1. See also In re
Opinion 39, 197 N.J. 66, 76 (2008) (“The rating or certifying methodology must
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have included inquiry into the lawyer’s qualifications and considered those
qualifications in selecting the lawyer for inclusion”); Committee Opinion 42
(December 2010) (“RPC 7.1 – Comparing an Attorney’s Services With Other
Attorneys’ Services: Permissible Language When Communicating Inclusion in
‘Super Lawyers’ and ‘Best Lawyers’ Lists or Referring to Membership in
Organizations Such as ‘Million Dollar Advocates Forum’”); May 5, 2021 Notice to
the Bar (“Advertising Awards, Honors, and Accolades That Compare a Lawyer’s
Services to Other Lawyers’ Services”). This inquiry into the lawyer’s
qualifications and fitness must be rigorous and independent.
When an award, honor, or accolade meets this test, the lawyer must include
additional information when referring to it in attorney advertising, whether that
advertising be a website, social media posting (including Facebook, LinkedIn, and
other platforms), law firm letterhead, lawyer email signature block, or other form
of communication. First, the lawyer must provide a description of the standard or
methodology on which the award, honor, or accolade is based, either in the
advertising itself or by reference to a “convenient, publicly available source.”
Official Comment to RPC 7.1. Second, the lawyer must include the name of the
comparing organization that issued the award; the name of the organization is often
different from the name of the award or the name of the magazine in which the
award results were published. RPC 7.1(a)(3)(i). Third, the lawyer must include
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the following disclaimer “in a readily discernible manner: ‘No aspect of this
advertisement has been approved by the Supreme Court of New Jersey.’” RPC
7.1(a)(3)(iii). All of this additional, accompanying language must be presented in
proximity to the reference to the award, honor, or accolade. The accompanying
information cannot be buried at the bottom of a page, or in tiny print, or placed
outside the screen shot on a website. Only the selection methodology can be
presented by reference or hyperlink, with an accompanying statement signaling
that the methodology can be viewed at that website or hyperlinked page.
The Committee has reviewed numerous law firm advertising on websites,
social media postings, email signature blocks, and print material that includes
badges or logos of comparative awards, such as the yellow “Super Lawyers”
badge, but does not include the required additional information in a discernible
manner in proximity to the reference to the award. The Committee has also
reviewed social media postings on Facebook, LinkedIn, and other platforms
touting an award but not including the required additional information. Every
reference to such an award, honor, or accolade – even when it is in an abbreviated
form such as the badge or logo or it is posted on a lawyer’s social media page –
must include the required accompanying information: (1) a description of the
standard or methodology; (2) the name of the comparing organization that issued
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the award; (3) the statement “No aspect of this advertisement has been approved by
the Supreme Court of New Jersey.”
For example, a reference to the Martindale-Hubbell AV Preeminent accolade
should provide:
Jane Doe was selected to 2022 list of AV Preeminent lawyers. This
award is conferred by Martindale-Hubbell. A description of the selection
methodology can be found at www.martindale.com/ratings-and-reviews/ .
No aspect of this advertisement has been approved by the Supreme Court
of New Jersey.
Further, when the name of an award, honor, or accolade contains a
superlative, such as “preeminent,” “distinguished,” “super,” “best,” “top,”
“superior,” “leading,” “top-rated,” or the like, the advertising must state only that
the lawyer was included in the list with that name, and not suggest that the lawyer
has that attribute. Hence, lawyers may state that they were included in the list
called “Super Lawyers,” “The Best Lawyers in America,” or “Top-Rated Lawyers”
and must not describe the lawyer as being a “Super Lawyer,” the “Best Lawyer,”
or one of the “Top-Rated Lawyers.”
During the past fifteen years, the lawyer award business has flourished
exponentially and there are numerous new organizations conferring awards and
accolades on lawyers. The Committee has reviewed law firm websites with as
many as 53 different comparative awards given to lawyers in the firm. The
Committee has informed lawyers that they may not tout awards that do not include
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a bona fide inquiry into the fitness of the lawyer. Some awards are popularity
contests – the lawyer “wins” the award when enough people email, telephone, or
text their vote. Other awards are issued for a price or as a “reward” for joining an
organization. Still others are generated based in large part on the participation of
the lawyer with the conferring organization’s website. For example, a lawyer can
enhance his or her “rating” with the organization by endorsing other lawyers,
becoming endorsed in return, responding to questions from the public about legal
matters on the organization’s website, and the like. Factors such as the payment of
money for the issuance of the award; required membership in the organization that
will issue the award; and a level of participation on the organization’s internet
website render such awards suspect.
Several awards, particularly those issued by regional magazines, are the
result of a survey of lawyers in the area with no subsequent, independent vetting by
the conferring organization. The Committee has not permitted lawyers to advertise
comparative awards that are based solely on nominations or a survey. It requires
the conferrer of the award to engage in a second step of review, to conduct a
rigorous and independent vetting of the lawyer to support the inferred “quality of
legal services” claim that the lawyer compares favorably to other lawyers by
purportedly being among the “best” or “top” of the legal field.
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Legal publications also confer awards with comparative names such as
“Leaders of the Bar” and “Top” lawyers. These publications initially base the
award on nominations. In the second step of review, the winners are often selected
by editorial writers at the publications, whose knowledge of the fitness of the
lawyer is primarily based on writing and reading what those publications consider
to be newsworthy events. Lawyers who contributed to newsworthy events are
favored to win the award. The second step review by the publications’ editors does
not meet the threshold requirements. The selection process is admittedly
subjective, based upon the judgment of the editors for each publication, but that
judgment cannot help but be further affected by the publications’ business interests
in selecting those lawyers who may boost “views” or “hits” of the pages containing
their determinations. With some legal publications, there is an additional concern
as the selection process may involve a dinner and/or advertising journal. Part of its
criteria, consciously or unconsciously, might be which firms or colleagues of those
selected would likely purchase tables at the publication’s award dinner, or
purchase advertising space in a journal. In the end, this selection methodology is
not much more rigorous, independent, and bona fide than that used by regional
publications, where the names are selected by editors as well, although the
Committee acknowledges that the legal publication editors would likely be more
familiar with the legal community.
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The Committee finds that Lawyer of the Year, Litigation Department of
the Year, Lifetime Achievement, and similar awards issued by legal
publications or legal organizations that focus on specific achievements of the
lawyer during the past year or during the lawyer’s lifetime do not “compare the
lawyer’s services with other lawyer’s services” within the meaning of Rule of
Professional Conduct 7.1(a)(3). This type of award recognizes a lawyer for
dedication to pro bono work or public service, success in a groundbreaking
legal matter, and similar deeds during the prior year. While facially
“comparative,” the focus of the award is to recognize a specific commendable
effort in service of the law and the public interest. As such, lawyers may refer
to this type of award in attorney advertising.
The Committee further notes that awards touting “customer service,”
“client satisfaction,” or five-star reviews also do not “compare the lawyer’s
services with other lawyer’s services” within the meaning of Rule of
Professional Conduct 7.1(a)(3). This type of award reflects positive online
reviews – and a lack of negative online reviews – posted about the specific
lawyer. Customer service or client satisfaction awards, by themselves and
without more, do not rate the quality of the lawyers; they only rate whether the
clients felt that the lawyers took good care of them. Lawyers may advertise
these awards.
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Accordingly, lawyers may refer to comparative awards, honors, and accolades
only when the basis for the comparison can be verified and the organization has
made a rigorous and independent inquiry into the fitness of the individual lawyer.
Further, whenever permissible references to comparative awards, honors, and
accolades are made, Rule of Professional Conduct 7.1 requires that additional
language be displayed to provide explanation and context.
If lawyers have questions about whether an award may be included in
attorney advertising, they may make inquiry of the Committee on Attorney
Advertising or contact the attorney ethics research assistance hotline. See Court
Rules 1:19A-3 and 1:19-9.
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