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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