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A New Jersey Supreme Court justice put Super Lawyers and Best Lawyers in America back in business in that state on Aug. 18 by staying the ethics opinion that prohibited lawyers from advertising their inclusion in the two surveys. Justice John Wallace Jr. issued the stay at the request of Super Lawyers magazine’s management and the state bar association, after the court-appointed Committee on Attorney Advertising took no position on the request. The stay puts the panel’s stricture, Opinion 39, on hold while the Supreme Court reviews its merits. Wallace’s action means attorneys can continue advertising their selection as Super Lawyers and Best Lawyers without fear of being nabbed by the ethics police. In addition, lawyers can fill out ballots being mailed this month for the next edition of Super Lawyers. In other words, Opinion 39 won’t make Super Lawyers and Best Lawyers in America ads unethical until the Supreme Court says it does. Wallace’s decision “has taken us back to the status quo before Opinion 39,” says Bennett Wasserman of Newark, N.J.’s Stryker, Tams & Dill, one of Super Lawyers’ counsel in the case. The stay came after four weeks of anxiety, or at least puzzlement, among lawyers wondering about the effect of the opinion and strategizing by attorneys hired by Super Lawyers and Best Lawyers in America to fight the ban. The state bar jumped into the fray, too. Bar President Wayne Positan says lawyers didn’t know what to do: pull ads, take Super Lawyer plaques off their walls, reconfigure letterheads and Web sites at great expense, or do nothing and risk disciplinary action. In the bar’s request for a stay, Positan wrote, “In light of this turmoil, the balancing of equities would seem to tip in favor of permitting attorneys to maintain the status quo until a final determination is made by the Court about whether the advertising in question is appropriate or not.” The opinion, which took effect upon publication on July 24, affected Best Lawyers in America’s 744 New Jersey selectees and Super Lawyers’ 1,669. Under Opinion 39, the lawyers couldn’t advertise their inclusion in the lists or participate in the selection processes. Marketing that mentions a lawyer’s selection as a Super Lawyer or Best Lawyer in America violates ethics rules against misleading advertising by creating an unjustified expectation about results the lawyer could achieve, the opinion says. Best Lawyers in America also filed an appeal on Aug. 24, but the opinion hurts Super Lawyers more because its chief revenues come from the splashy lawyer ads that accompany the listings in Super Lawyers magazine and special supplements in New Jersey Monthly magazine. Super Lawyers President Charles Thell said in a certification that the company’s activities in New Jersey generate $1.3 million annually and that $3.4 million in advertising for magazines in production nationally was at risk for the last quarter of 2006. Super Lawyers magazines appear in 22 states. “This Opinion’s adverse effects on the Bar have been immediate and widespread,” says a petition by six New Jersey attorneys listed as Super Lawyers and by Super Lawyers’ parent company, Key Professional Media of Minneapolis. “An entire publication has been shut down and scores of New Jersey attorneys that previously used their Super Lawyers selection to promote their practices can no longer do so,” says the petition, prepared by Wasserman and John Gibbons of Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione. New Jersey lawyers have already withdrawn commitments for advertising with Super Lawyers and have even withheld payment for current advertising, the petition says. NATIONAL SCOPE What’s more, lawyers in other states whose practices are subject to regulation in New Jersey are reacting, the petition says. Firms in New York, Pennsylvania, Massachusetts, Oregon, and Minnesota have withdrawn, withheld, or suspended commitments for advertising, and attorneys in Missouri and Tennessee have asked to be dropped from inclusion on the list, Thell said in a certification. In a July 21 letter to the advertising committee, Positan wrote that firms with expensive ad campaigns are “now facing the prospect of trashing brochures and other materials, and having them redone minus any �Super Lawyer/Best Lawyer’ designation.” “There is real uncertainty among many members of the bar about what to do,” he told the panel. He noted that there was no warning to lawyers about the propriety of such advertising and that he was not aware of any state with similar restrictions. “That being the case, it seems unfair that lawyers should now face considerable uncertainty and suffer financial loss before the process of reviewing the opinion has even commenced,” Positan wrote. Having won the stay, advocates of the rating systems can now concentrate on trying to get the Supreme Court to reverse the opinion. Super Lawyers’ petition says attorney-advertising regulators in Florida have approved Super Lawyers magazine and a decision in Virginia is pending. And it makes five arguments against the New Jersey opinion. First, Super Lawyers attacks Rule of Professional Conduct (RPC) 7.1(a)(3) that makes any comparison of lawyers’ services a per se ethical violation. And that’s an unconstitutional abridgement of commercial free speech and should be overturned, the petition says. “A comparative statement that is false or misleading would be a rule violation whether or not it was in the context of a comparison, but the mere fact of comparison does not equate to false or misleading advertising,” the petition says. Second, use of the Super Lawyers designation doesn’t create a false or unjustified expectation, the petition argues. Given the “fair methodology” Super Lawyers uses to rate lawyers, the rating system may create an expectation, but it isn’t an unjustified expectation. “Rather, it is simply a fact from which consumers may or may not draw an inference of the likely quality of the attorney’s work,” the petition says. The petition also includes a detailed explanation of the selection process. Third, the petitioners are claiming that their due process rights were violated because Opinion 39 approved the advertisement of ratings by a competitor, Martindale-Hubbell. The opinion says lawyers can ethically advertise their Martindale AV, BV and CV ratings because those ratings are used by other attorneys and are not well known to members of the public. But in fact, the petition argues, Martindale-Hubbell is advertising the ratings to the public, has created a Bar Register of Pre-Eminent Lawyers, and provides the information on a Web site whose traffic increases yearly. “Without asking anything of Super Lawyers and without more than a cosmetic look at Martindale-Hubbell, the committee resolved that one was good and the other bad,” the petition says. Fourth, the ban on lawyer participation in the Super Lawyers selection process is a First Amendment violation, the petition says. The opinion says it is inappropriate to participate in the survey knowing that it would lead to comparative descriptive labels. “If the opinion stands, any lawyer asked to participate in a peer review survey will first have to determine, in Orwellian manner, whether the survey is on the committee’s approved list before freely expressing his or her opinion,” the petition argues. Fifth, the committee violated due process by not conducting an inquiry under Rule 1:19A-2c, which gives lawyers opportunities to comment on proposed advertising guidelines, the petition argues. “An advisory opinion that imposes an immediate blanket ban on lawyer ranking systems that are fundamentally fair and rational, coupled with a gag order that prohibits all attorneys from expressing opinions of their peers’ performance through that rating system, is a disguised guideline,” the petition says. Under the rules, challenges to committee opinions are defended by the state attorney general’s office. New Jersey Assistant Attorney General Patrick DeAlmeida declined to comment. The rules also limit eligible petitioners to lawyers affected by an opinion, hence Key Professional Media’s status as a proposed intervenor-petitioner and the need for individual Super Lawyers selectees to step forward as petitioners. Lead petitioner Jon-Henry Barr of Clark, N.J.’s Barr & Canada was included in the Super Lawyers “Rising Stars” supplement in the August New Jersey Monthly. Barr, 35, says his parents were so proud of him they wanted to put an ad about his selection in a local newspaper. Just then, Opinion 39 came out, and he asked them not to do it. After musing about whether his parents had a viable federal First Amendment claim against the committee, he contacted Super Lawyers. Super Lawyers, which he says is funding the appeal, informed him of its efforts to overturn the appeal, and he became the lead petitioner, alphabetically.
Henry Gottlieb is a reporter for the New Jersey Law Journal , the ALM publication in which a version of this article first appeared. ALM has a strategic relationship with Best Lawyers in America.

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