- New Jersey Supreme Court Orders Redraft of RPC 7.1 to Address Super Lawyer/Best Lawyers Issues
- March 27, 2009
- Law Firm: Hinshaw & Culbertson LLP - Chicago Office
In re Opinion 39 of the Committee on Attorney Advertising, 197 N.J. 66, 961 A.2d 722 (2008)
In light of the issues surrounding advertisements of the designations “Super Lawyer” and “Best Lawyers in America,” the New Jersey Supreme Court has called for a redraft of the attorney advertising rule, which will balance First Amendment concerns with the policies underlying RPC 7.1.
In 2006, the New Jersey Supreme Court Committee on Attorney Advertising opined in Opinion 39 that using the designations “Super Lawyer” or “Best Lawyers in America” violated New Jersey Rule of Professional Conduct (“RPC”) 7.1. The Committee specifically decided that these designations violated either the prohibition on comparative advertising in RPC 7.1(a)(3) or the prohibition on creating an unjustified expectation about results in RPC 7.1(a)(2).
The companies that publish the “Super Lawyer” and “Best Lawyers in America” lists, among others, petitioned the New Jersey Supreme Court to review Opinion 39. The court granted the petitions and remanded the matter to a Special Master for the purpose of developing an evidentiary record of relevant facts and legal issues. The court then vacated Opinion 39 because, unlike the Special Master’s report, it did not contain a carefully nuanced analysis of First Amendment issues. The court held that the plain language of RPC 7.1 contributed to Opinion 39’s shortcomings and decided that a review of this language was best performed in the context of the court’s administrative function rather than its adjudicatory function. The court called for the review to take into consideration the Special Master’s report.
The Special Master’s Report’s carefully nuanced analysis essentially involved three steps. First, the Special Master set out the test for assessing the constitutionality of regulations of commercial speech: such speech may not be prohibited if it is merely potentially misleading, and potentially misleading speech may only be regulated to the extent necessary to prevent deception.
Second, the report analyzed case law aimed at differentiating between advertisements that are potentially misleading and those that are not. While advertising the existence of a certification is not per se misleading, it could be misleading if such certifications are issued indiscriminately. The Special Master also interpreted a New Jersey Supreme Court case, In re Felmeister & Issac, 104 N.J. 515 (1986), to allow advertising that is predominantly informational. The Special Master elaborated that such information should help the consumer select an attorney by pertaining to the performance or quality of an attorney.
Finally, the report compared RPC 7.1 to similar laws from other jurisdictions. Based on other states’ decisions, the Special Master recommended 12 regulatory components with which the court could modify or interpret New Jersey’s RPC 7.1. Paraphrasing the report, these components are:
- The advertising must be true.
- The advertisement must state the year of inclusion and the specialty for which the lawyer was listed.
- The basic methodology utilized for compiling the listing must be disclosed in the advertisement.
- The methodology must involve inquiry into the lawyer’s qualifications.
- The rating or certification cannot be conditioned on remuneration.
- Superlatives must not be used to describe an attorney but may be used in the title of a list.
- Claims that a list contains a comparatively better subgroup of lawyers are misleading and should be prohibited.
- The methodology must include guidelines for usage embodying these requirements.
- The advertisement must not impute an individual’s credential to an entire firm.
- The certification methodology must be open to all members of the Bar.
- A peer-review methodology must include consistently applied standards of inclusion.
- The advertisement must note that such designations are not recognized by the Supreme Court of New Jersey or the ABA.
Based on the Special Master’s report and recommendations, the New Jersey Supreme Court vacated Opinion 39 and referred RPC 7.1(a)(2) and (3) to the Advisory Committee on Attorney Advertising, the Advisory Committee on Professional Ethics, and the Professional Responsibility Rules Committee for redrafting.
Significance of Opinion
The court’s decision to take a more nuanced approach to attorney advertising rules follows the lead of several other jurisdictions. But to the extent the new rule invokes all 12 regulatory components recommended by the Special Master, New Jersey’s new rule may become the most nuanced advertising rule.