December 2008

In re Opinion 39 of the Committee on Attorney Advertising , No. A-30/31/32 (N. J. December 17, 2008). In re Opinion 39 reads as a meditation, a metaphysical riff on the essential nature of what is truly false and misleading. If you are nostalgic for your constitutional law class or a college philosophy course, this may be an opinion that you might want to read in its entirety. And if you are tasked in writing a brief that surveys issues regarding what is allowed and limited in attorney advertising, this case might be an excellent place to begin your inquiry.

New Jersey RPC 7.1(a)(3) prohibits attorneys advertisements that are inherently comparative in nature. RPC 7.1(a)(3) prohibits marketing that creates unjustified expectations about results. Based primarily on these prohibitions, the New Jersey Supreme Court Committee on Attorney Advertising issued Opinion 39 which concluded that advertising describing attorneys as “Super Lawyers,” “Best Lawyers in America,” or similar comparative titles were impermissible.

The New Jersey Supreme Court vacated Opinion 39 and referred the matter jointly to its Advisory Committee on Attorney Advertising (the Committee), the Advisory Committee on Professional Ethics, and the Professional Responsibility Rules Committee for expedited rulemaking proceedings to modify RPC 7.1(a)(3) and, to a lesser extent, RPC 7.1(a)(2). The Court acknowledged this process was no simple task and one that did not lend itself to the adversary/adjudicatory process of creating a legal opinion. The Court felt this issue could best be clarified within its administrative functions. The various Committees of the Court were charged with redrafting the rules to balance the policy concerns the current rule addresses with the First Amendment protections of legitimate commercial speech activities.

The originally aggrieved party in this matter was a New Jersey Attorney named Lloyd D. Carr. In 2005 he brought to the attention of the Committee on Advertising a magazine entitled New Jersey Super Lawyers . Carr believed that this magazine was circulated among clients and potential clients in order to create the impression that the attorneys designated as “super” were more qualified than other lawyers in New Jersey. Carr complained that these comparisons were impermissible. Similarly in 2006, another New Jersey lawyer, George J. Kenny, complained to the Committee on Advertising that another law firm in the state sent him promotional materials boasting that several of its members were included among “The Best Lawyers in America for 2005.”

The Committee considered Carr and Kenny’s concerns and, on July 26, 2006, issued Opinion 39. Thereafter, three groups sought review of Opinion 39: Key Professional Media Inc., d/b/a “Super Lawyers” and “Law and Politics”; Stuart Hoberman Esq., in the stead of Woodward White, Inc., the publisher of “Best Lawyers in America”; and New Jersey Monthly, LLC, which publishes special advertising sections in the New Jersey Monthly magazine titled “New Jersey Super Lawyers” and “New Jersey Super Lawyers Rising Stars.” The New Jersey Supreme Court granted all three petitions for review and remanded the matter to retired Appellate Judge Robert A. Fall to sit as a Special Master to develop an evidentiary record in respect of the facts and legal issues that related to the petitions for review.

A voluminous record was created and Judge Fall issued a 304-page report on June 18, 2008. He believed that the issue at hand was whether there could be a blanket ban on comparative attorney advertising. More specifically, Judge Fall said the issue was “whether a peer review rating system that results in the compilation of a list of attorneys with a superlative title falls into some category of prohibitive advertisements, such that inclusion in that list can be considered as non-misleading and not deceptive.” In other words, can comparative attorney advertising of the type used in the petitioners’ publications be banned even if they could not otherwise be found to be misleading or deceptive?

Judge Fall started his inquiry with a canvas of the legal landscape in respect to the regulation of attorney advertising. He concluded that advertising by attorneys is a form of commercial speech protected by the First Amendment and may not be subjected to blanket suppression. Judge Fall set forth a four part test for assessing the regulation of commercial speech:

1.      the speech must concern lawful activity;
2.      the asserted governmental interest must be substantial;
3.      if points 1 and 2 are met, the regulation must advance the governmental interest asserted; and
4.      the regulation must not be more extensive than it is necessary to serve that interest.

Judge Fall said a state may not absolutely ban potentially misleading information if that information could be presented in a way that is not deceptive. “The remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation.”  He noted that the United States Supreme Court has not had occasion to rule on the extent that quality of service claims in attorney advertising can be constitutionally regulated and the Petitioners’ advertising makes quality of service claims. The interested reader might reference the full opinion here for a retrospective of how New Jersey and other states have dealt with this still open question. Judge Fall synopsized the current state of the law in this area to help facilitate a final clarification on the issue. He held that the proper balance is to protect the public against misrepresentations while at the same time protecting the First Amendment commercial speech rights. “That effort must be taken with an open mind and a willingness to change as we learn more, as we learn perhaps of a better balance.”

Fall made a comparative analysis of RPC 7.1 with the ABA Model Rule and with rules from other jurisdictions that provide for the use of disclaimers. From that comparative analysis, he concluded “state bans on truthful fact based claims in lawful professional advertising could be ruled unconstitutional when the state fails to establish that the required claims are actually or inherently misleading and thus would be unprotected by the First Amendment commercial speech doctrine.”

Fall culled the record into twelve regulatory components to provide guidance to the Court, and, by extension, its Committee, to modify or interpret the Rules of Professional Conduct to permit inclusion of advertising like the petitioners:

1. the advertising representation must be true;
2. the ad must state the year of inclusion of the listing and the specialty for which the lawyer is listed;
3. the methodology of the implied comparison must be verifiable and adequately disclosed in the ad itself;
4. the rating methodology must include inquiry into the lawyer’s qualifications;
5. the rating cannot have been issued for a price or a fee or the purchase of a product and the certification and rating process must be completed before the solicitation of any advertising to the rated attorney;
6. the attorney must be noted only as a member of a list and not as being “super” or “best” in a description independent of the list;
7. misleading, factually inaccurate statements are prohibited and “the best lawyers in the state” or “the top 5% of attorneys…” are misleading and factually inaccurate;
8. proper guidelines must be set for peer review or certification methodologies;
9. the ad can’t bestow an individual attorney’s credentials on his entire firm;
10. the methodology of review or certification must be open to all members of the bar;
11. the methodologies must be clear and consistently applied; and
12. the ad must include a disclaimer that the inclusion of a lawyer on one of these lists is not a designation of the Supreme Court of New Jersey or the American Bar Association.

The New Jersey Attorney General, as Counsel to the Committee, challenged the report’s findings. Nevertheless, the Court vacated Opinion 39 because it did “not provide the carefully nuanced
analysis that informs” Fall’s report. The Court acknowledged Opinion 39’s shortcomings as the inevitable result of the plain language found in RPC 7.1(a)(3), and to a lesser extent (a)(2).

In the end, the Court chose not to address the ever-evolving world of attorney advertising and the broad law of commercial speech regulation in a judicial opinion. Instead. It will look to its various administrative committees to address the issue with Judge Fall’s report as a guide.

The decision is In re Opinion 39 of the Committee on Attorney Advertising , No. A-30/31/32 (N. J. December 17, 2008).

-RICHARD S. THOMAS, COUNSEL, ILLINOIS ARDC-