Ending months of anticipation, New Jersey's highest court has struck down as unconstitutional a prohibition on attorneys advertising their selections in Super Lawyers, Best Lawyers in America and other comparative ratings guides.
The court, in a unanimous ruling on Wednesday, agreed with a special master who found last June that "state bans on truthful, fact-based claims in lawful advertising could be ruled unconstitutional when the state fails to establish that the regulated claims are actually or inherently misleading."
The ruling, In re Opinion 39 of the Committee on Attorney Advertising, A-30/31/32-08, will come as relief to Super Lawyers' and Best Lawyers' publishers and also to lawyers and firms that had pulled their ads after an ethics panel ruled in July 2006 that such advertising ran afoul of certain Rules of Professional Conduct. Although the ban was stayed later that year, the uncertainty it created had a lasting chilling effect.
While vacating Opinion 39, the court saw the need to modify the relevant RPCs -- 7.1(a)(2) (prohibiting advertising "likely to create an unjustified expectation about results") and RPC 7.1(a)(3) (prohibiting comparative advertising statements) -- "because of the constitutional concerns ... and in light of the emerging trends in attorney advertising."
The court directed its Attorney Advertising, Professional Ethics and the Professional Responsibility Rules committees to come up with a replacement "that will take into account the policy concerns expressed by the Rule while, at the same time, respecting legitimate commercial speech activities."
The court signaled that this is the end of a litigious entanglement that began over two years ago, when publishers of Super Lawyers and Best Lawyers in America lodged challenges to Opinion 39. Any further challenges to attorney advertising previously addressed in Opinion 39 will not be dealt with until there is a new or amended rule, it said.
Special Master Robert Fall spent 15 months trying to resolve the competing concerns raised in Opinion 39, holding weeks of hearings and reviewing voluminous written submissions from the publishers, from lawyers and from the state attorney general.
Last June, in a 304-page report to the court, Fall acknowledged that the plain language of RPC 7.1(a)(3) "specifically defines comparative advertising as being, per se, misleading or deceptive." But he pointed up the constitutional problems of imposing a blanket suppression on commercial speech not shown to be actually or inherently misleading. [Click here for full text of special master's report.]
Fall stopped short of recommending a reversal of Opinion 39, but he noted 12 examples of standards, disclaimers and explanatory language employed as safeguards in jurisdictions that allow lawyers to advertise their inclusion in Super Lawyers and Best Lawyers publications.
He cited rules used in Tennessee, Connecticut, Iowa, Michigan, Arizona and Delaware to regulate the use of the listings. Some states require the lawyer to mention the year of inclusion in the listing or the specialty for which the lawyer was chosen, or a disclaimer saying that the inclusion on the list is not a designation recognized by the Supreme Court or the American Bar Association.
Fall said the court already allows a form of comparative advertising by permitting lawyers to say in their ads that they have been certified as a specialist by the court itself, ABA or an organization that does not have the approval of the court, so long as that is noted.
It is inconsistent, he said, to permit ads with such disclaimers without requiring an inquiry into why the organization is not approved "while at the same time prohibiting per se advertising of one's inclusion in a peer-review attorney rating list that uses superlatives."
Fall compared New Jersey's RPC 7.1 with the model rule promulgated by the American Bar Association and the rule in those jurisdictions that have adopted the use of disclaimers in lieu of a per se ban.
The court has opted to explore such an approach by revision of the rule. "This no simple task, and it is one that does not lend itself to the present adversary/adjudicatory posture of this matter," the court said. "This question is addressed best within the context of this Court's administrative functions."
Attorneys for Super Lawyers' and Best Lawyers' publishers and other challengers of Opinion 39 are ecstatic at the outcome.
"It's everything we asked for," says Bennett Wasserman, who represents Key Professional Media Inc., the publisher of Super Lawyers. "Consumers of legal services, just like any other consumer, have the constitutionally guaranteed right to have reliable information about the lawyers they are about to engage," says Wasserman, of Newark's Stryker, Tams & Dill. "Super Lawyers ensures and protects that right in its reliable and court-accepted methodologies."
The attorney for Best Lawyers' publisher Woodward-White Inc., Frederick Dennehy, of Woodbridge, N.J.'s Wilentz, Goldman & Spitzer, says of the ruling, "It really brings New Jersey into the mainstream of other states that allow advertisements that are truthful and honest."
Princeton, N.J., solo Glenn Bergenfield, one of the lawyers challenging Opinion 39, says publications like Super Lawyers and Best Lawyers in America are the wave of the future. "That's the way a lot of things are headed anyway," he says. "Lawyers need to get information out to clients, and clients are smart enough to sort out what's just puffery and baloney."
Carol Johnston, the Committee on Attorney Advertising's secretary, says the committee looks forward to working with the other committees to "bring the rule into the 21st century."
The court decided the case per curiam without oral argument. Chief Justice Stuart Rabner and Justices Barry Albin and Virginia Long did not participate. Appellate Division Judge Stephen Skillman, sitting by designation, provided the fifth justice needed for a quorum.
Editor's note: ALM, the parent of Law.com, has a strategic relationship with Best Lawyers.