It’s that time of year again. Every summer, SuperLawyers® publishes its list of the “top” attorneys and Rising Stars across the country. Many attorneys included in the publication incorporate the designation into their biographies or otherwise notify clients and prospects of the honor. Like any form of attorney marketing, however, attorneys must be careful to comply with the applicable ethical rules governing advertising when referencing SuperLawyers®.
According to its website, SuperLawyers® uses a “patented multiphase selection process” to identify the top lawyers by practice area in a given geographical area. The process includes independent research, peer nominations and peer evaluations. The annual selections are featured in SuperLawyers® Magazine, a periodical published in all 50 states and D.C., with a circulation of over 13 million readers.
A SuperLawyers®’ reference implicates Model Rules of Professional Conduct 7.1. Rule 7.1 prohibits false or misleading advertising: any communication that “contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” A truthful statement is misleading if it (1) “omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading” or (2) if there is a “substantial likelihood” that the statement will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services “for which there is no reasonable factual foundation.”
In the specific context of an ad touting a SuperLawyers® designation, an “unsubstantiated comparison” of the lawyer’s services with the services of other lawyers may be misleading “if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.” The Rule notes that an appropriate disclaimer or other qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead.
Each of the ethics boards that have evaluated SuperLawyers® advertising conclude that the advertisement may reference a professional ranking, as long as the attorney provides some appropriate context. Some states require that attorneys who reference a SuperLawyers® or other professional ranking service must include the publication name, date, and the practice area, if one was specified, in which the lawyer was ranked or selected.
Other states also require further information about the ranking, depending upon the intended audience, with the most detailed information required when the publication is of the public-consumption type. Still other states have granted more leeway, permitting such advertising as long as it is presented in a “non misleading” way and is independently verifiable. Some states stipulate that no fee is paid in exchange for the distinction.
New Jersey formerly forbade such advertising but now allows it, so long as the designation includes the name of the ratings service and a disclaimer reading: “No aspect of this advertisement has been approved by the Supreme Court.” This ruling also suggests that the ad should describe the methodology used by the rating service, or should at least include a reference to a source that has the description.
When including a SuperLawyers® reference in your advertisement, be sure to check your local rules and any ethics opinions regarding such references. The above opinions, coupled with common sense, suggest that some disclaimer will be necessary, no matter where you practice. Keeping in mind that no ad should be misleading, good rules of thumb include:
- Include more information. SuperLawyers®, or a similar moniker, standing alone, may be misleading, especially to a layperson. Include important details about what a SuperLawyers® is, how they are selected, the year of the selection, and the practice area . The inclusion of such information is particularly important when the advertisement is likely to reach the general, non-lawyer populace.
- Don’t pay up. If you pay for an “honor”, you may not ethically be able to reference it in your advertising materials.
SuperLawyers® and similar designations are an honor that attorneys may be proud of. But improperly utilizing this designation in advertising materials in a way that may mislead the public could lead to ethical issues.