Best Lawyers in America, Super Lawyers and Martindale-Hubbell make good-faith efforts to produce lists of well-regarded lawyers, and if the New Jersey Supreme Court wants to allow attorneys to advertise the ratings, disclaimers are available to make it ethical, a special master says.

In the much-anticipated report to the court, made public Monday, retired appellate division Judge Robert Fall stopped short of recommending a reversal of the ban on such advertising, Opinion 39 of the court’s Committee on Attorney Advertising (.pdf), or a rewrite of ethics rules. (See full text of the report.)

But if the justices want to make the policy decision to allow New Jersey lawyers to be in the surveys, there are disclaimers and standards that could ensure that people aren’t misled, Fall suggests. His report is generally sympathetic to the notion that the public isn’t hypnotized by such ads.

The July 2006 ethics opinion said that participating in the surveys violates a rule of professional conduct against ads that make unsupportable suggestions that one lawyer is better than another.

It’s unethical for lawyers to advertise inclusion in Super Lawyers or Best Lawyers in America surveys because such labels can mislead the public, the committee concluded.

Fall, who spent 15 months studying the issue at the court’s request, agrees in his report that the plain language of the stricture, RPC 7.1(a)(3), “specifically defines comparative advertising as being, per se, misleading or deceptive.”

But he lists 12 examples of standards, disclaimers and explanatory language employed as safeguards by jurisdictions that allow lawyers to advertise their inclusion in Super Lawyers and Best Lawyers in America publications.

The advertising committee did not ban Martindale-Hubbell ads, but the company’s rating service was included in Fall’s inquiry, and his conclusions covered all three of the rating surveys.

His 304 page-report, the product of weeks of hearings and document production, says the surveys’ methodologies in picking lawyers could be criticized and improved.

But the report says each method is a “comprehensive, good-faith and detailed attempt to produce a list of lawyers that have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field.”

The rating services had sought to prove that a lawyer didn’t have to buy advertising in the survey publications to be included, and they, apparently, were successful in convincing Fall.

“It is absolutely clear from this record that these entities do not permit a lawyer to buy one’s way onto the list, nor is there any requirement for the purchase of any product, for inclusion in the list or any quid pro quo of any kind or nature associated with the evaluation and listing of any attorney or in the subsequent advertising of one’s inclusion in the lists,” the report says.

Fall also appears to be in tune with the rating services’ arguments that the public has many ways of finding out about lawyers and that singling out the rating services for a ban makes no sense.

“The unavoidable reality is that lawyers advertise through a wide range of commercial media, and that consumers in large numbers peruse those advertisements when searching for an attorney, whether it be through an Internet search, by reading a special advertising section in a magazine or leafing through the yellow pages,” Fall says. “It is evident that the Twenty-First Century consumer is more sophisticated than ever and actively seeks information prior to making purchase choices, including the selection of legal representation.”

Tennessee, Connecticut, Iowa, Michigan, Arizona and Delaware are among the jurisdictions whose ethics authorities have permitted lawyers to take part in Super Lawyers and Best Lawyers in America, and Fall includes some of the disclaimers required by those authorities.

Some states require the advertiser to mention the year of inclusion in the listing or the specialty for which the lawyer was chosen or a disclaimer stating that the inclusion on the list is not a designation recognized by the Supreme Court or the American Bar Association.

It’s OK, for example, for lawyers to say they are in the Best Lawyers in America or Super Lawyers survey, but not to say they are “best” or “super.”

Fall notes that the court already permits a form of comparative advertising by allowing lawyers to say they are certified in a specialty by the state Supreme Court or the American Bar Association. Under the rules, a lawyer also can advertise certification by organizations that do not have court approval as long as the ad includes a note to that effect.

“It seems inconsistent to allow such ads with disclaimers without requiring an inquiry into why the organization wasn’t 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 says.

The New Jersey Supreme Court gave parties until Sept. 15 to comment.

On behalf of the advertising committee, the New Jersey attorney general’s office asked Fall to recommend enforcement of Opinion 39, which has been stayed pending the inquiry.

The state contended that Super Lawyers’ and Best Lawyers’ methodologies were flawed because members of large firms dominate the lists while most lawyers in the state are solos or in small firms. What’s more, the surveys solicit nominations or votes from managing partners or marketing directors, which most small firms don’t have, the state pointed out.

Practitioners in firms with more than 50 lawyers represent 14 percent of the bar, but half the lawyers in Best Lawyers in America are in such firms.

But Fall says there was no support in the record for the notion that lawyer quality is proportionally distributed among all law firm sizes. And he says the surveys have adopted methods of preventing large firms from manipulating the selection process.

Fall says he is concerned, however, about whether Super Lawyers in particular has too low a response rate to its solicitations. For the 2007 Super Lawyers magazine, 32,082 New Jersey lawyers received ballots, and 714 with 4,732 names were returned — a 2.2 percent rate.

He recommends the disclosure of these statistics to consumers, as advertising regulators in Connecticut require.

“Consumers are told that ballots were mailed to every practicing lawyer in New Jersey who has been admitted for five or more years, so it seems only fair and logical they be informed of the return rate,” he says.

Martindale-Hubbell — which gives lawyers a ranking of A for very high to pre-eminent legal ability, B for high to very high and C for good to high — prohibits attorneys from using these ratings in yellow page, billboard or newspaper ads. By the company’s reckoning, that supports its position that the ratings are for corporate counsel and other lawyers and not so much for the general public.

Opinion 39 found that Martindale-Hubbell was indeed a lawyer-to-lawyer rating service that wasn’t violating the advertising rule.

Now that Fall has finished his inquiry, “Martindale was the gold standard going in, and we’re the gold standard coming out,” says the company’s lawyer, Thomas Curtin of Graham Curtin in Morristown, N.J.

“Our review system wasn’t the subject of criticism by anybody,” he says. “It’s an important issue for us as a business, and if there is going to be some kind of regulatory modification, it’s better to be a participant to shape the practice.”

Best Lawyers’ editor Steven Naifeh declines to comment. Super Lawyers’ publisher William White says of the report, “It’s good news for consumers and others looking for valuable information about lawyers and good for attorneys seeking to exercise their right to commercial free speech.”

He says he doesn’t mind disclosing facts about the methodology, including the response rate, but adds, “We’re always a little concerned with the state infringing on our rights as journalists and being in the position of telling us what to print and what not to print.”

Carol Johnston, secretary to the committee on advertising, says the review was certainly “thorough and comprehensive.” Whatever the New Jersey Supreme Court does, Fall’s report says the committee was right when it found comparative ads to be a per se violation of the advertising rules, she says.