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New Jersey’s attorney general says the state’s high court would be right if it stood firm, though there’s some wiggle room, on a ban on advertising linked to The Best Lawyers in America and Superlawyers. Ads touting a lawyer’s selection as “best” or “super” are inherently misleading, aren’t protected by the First Amendment and fall afoul of New Jersey’s Rules of Professional Conduct, the attorney general’s office says in a brief filed on Wednesday. At the same time, the office conceded that Best Lawyer or Superlawyer ads that included disclaimers have been approved by ethics regulators in Arizona, Florida and Philadelphia. New Jersey could take the same tack, the brief says. The brief also suggested that the ads could be ethical if the Court rewrote New Jersey’s Rules of Professional Conduct to eliminate a per se prohibition on marketing that compares lawyers’ abilities. The more relaxed American Bar Association Model Rules don’t have that prohibition. The brief was New Jersey’s first substantive response to petitions by the rating services, the State Bar Association and New Jersey Monthly magazine to vacate the ban imposed July 24 by the Court’s Advisory Committee on Attorney Advertising, known as Opinion 39. The ban, unique to New Jersey, puts the two ranking services out of business in the state because lawyers are not only prohibited from advertising their inclusion; they are barred from participating in the selection process. The Supreme Court has stayed enforcement of ban pending review. The brief says, in essence, Opinion 39 got it right, given the state of ethics law in New Jersey, but the Supreme Court is free to tinker with the rules – as other states have – to allow the ads and prevent harm to the public at the same time. For now, given New Jersey’s strictness, the ban on Superlawyers and Best Lawyers is “ultimately compelled,” say Assistant Attorney General Andrea Silkowitz and Senior Deputy Attorney General Steven Flanzman in the brief. First, the state lawyers brushed aside, as irrelevant, assertions by Superlawyers and Best Lawyers that the plaudits are based on objective and reasonable criteria that do, indeed, identify lawyers who are worthy of being called “best” or “super.” Superlawyers picks lawyers who are mentioned with frequency by other lawyers on ballots sent to 10,000 practitioners in the state. Best Lawyers bases its selection on recommendations by lawyers in the survey in previous years. “Simply stated, the methodology does not matter because the labels that the publishers confer on those attorneys who are selected to be included on their respective lists -namely the labels ‘super’ and ‘best’ – are labels that are inherently misleading,” the brief says. Even if the Court finds the methodologies were relevant, they don’t meet the objectivity requirements established in previous cases. Unlike civil, family or criminal certification programs that lawyers are allowed to mention in ads, the labels “superlawyer” and “best lawyer” aren’t available to all lawyers who meet an objective standard, the brief says. Second, because the labels are misleading, their use can be restrained without protection from the First Amendment under cases defining the limits of commercial speech. Third, the brief rejects the assertion that Opinion 39 violates equal protection rights by banning Superlawyers and Best Lawyers, but not Martindale-Hubbell’s AV, BV and CV ratings. Martindale-Hubbell bars lawyers from advertising the ratings in mass media, the brief says. Fourth, Opinion 39 is buttressed by specific prohibitions in RPC 7.1(a) that proscribe misleading ads, RPC 7.1(a) that bar ads creating unjustified expectations about the results a lawyer can achieve and RPC 7.1(a)(3), that prohibit comparisons between the lawyer’s services and other lawyers’ services. A 2003 revision of the ABA Model Rule 7.1 that wasn’t adopted in New Jersey retained the general prohibition against misleading ads. But it moved the specific prohibitions to the comment section. That made the specific prohibitions tools for analysis, but not requirements, the Arizona Bar Committee on Rules of Professional Conduct noted last year in Opinion 05-03, which found advertising in Best Lawyers in America to be ethical. In Arizona, methodology matters. Regulators applied the new Rule 7.1, used an objective standard to decide whether comparisons were false or misleading and decided that ads touting Best Lawyers in America weren’t. “A consumer who wishes to investigate the underlying basis for a lawyer’s listing in The Best Lawyers in America can simply read the introduction,” said Opinion 05-03. At the same time, the Arizona Bar said it wasn’t passing judgment on other rating services because it didn’t know their criteria. And it advised lawyers to make sure the ads included a mention of the year and specialty for which they were included in Best Lawyers publications. The Philadelphia Bar approved Superlawyer ads that included detailed information about the criteria for selection. The Florida Bar said Superlawyer ads were permissible if they included a reference to the specific publication that conferred the title and didn’t use the phrase Super Lawyer by itself. The Supreme Court of Tennessee’s Board of Professional Responsibility issued similar caveats in a September ruling that said advertising mentioning Super Lawyers and Best Lawyers selection were permissible. In that state, subjective characterizations may be used if the organization has made inquiry into the lawyer’s fitness and does not confer the honor indiscriminately or for a price. There is no dispute that New Jersey’s rules, which retain the specific prohibitions in RPC 7.1, are stricter than most states, and the attorney general’s brief notes the other opinions don’t bind the Supreme Court. Still, referring to Arizona’s caveat-laden ruling on Best Lawyers, the brief says, “Were the court to adopt such an approach, it would of course be free to enunciate, consistent with the First Amendment, its own requirements for necessary limitations, qualifications, and disclosure to ensure that any given advertisement was, in its entirety, not misleading.” As for the current rule, “In its discretion, the Court could choose to reexamine the text of RPC 7.1 and to consider whether cause exists to amend the rule in a manner consistent with the modifications that have been made in the Model Rules,” the brief says. The Court may consider referring the matter to the Professional Responsibility Rules Committee for review of the issues raised and solicitation of comments from interested persons and groups, it says. Spokesman for Superlawyers and Best Lawyers in America said they had no immediate comment on the brief.

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