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The New York courts have amended advertising rules to allow attorneys to tout their “bona fide professional ratings” – another example that New Jersey could be out of step if it adopts a proposed ban on services like Superlawyers and Best Lawyers in America. In rules effective Feb. 1, New York’s Appellate Division presiding justices added bona fide professional ratings to the list of things lawyers can mention in their ads, along with education, writings, and bar and professional society memberships. “I think it signals to New Jersey that New York is not going to follow in their attempts to limit lawyer advertising and the ability to mention their Superlawyer or Best Lawyer designation,” Superlawyers’ president William White said. “It kind of said to New Jersey, ‘You’re out there on your own.’” To be sure, the New York rule does not mention Best Lawyers in America or Superlawyers. Nor does it define a bona fide rating service. But it certainly doesn’t prohibit inclusion of Superlawyers or Best Lawyers ratings in ads, as the New Jersey Supreme Court’s Committee on Attorney Advertising did last July in Opinion 39. The opinion, stayed pending Supreme Court review, suggests that methodology doesn’t matter because the terms “best” and “super” automatically violate rules against creating unjustified expectations of success among potential clients. The terms also are inherently misleading because they create an impression that a lawyer has a special edge over another lawyer, the opinion said. The Supreme Court is now considering arguments by the rating services that the ban violates the First Amendment and prevents consumers from receiving valid, peer-reviewed ratings that do indeed measure excellence objectively. No jurisdiction has adopted such a ban. Florida, Arizona and Philadelphia have said Superlawyers or Best Lawyers ads are ethical. New York’s new rules don’t go that far, but they do suggest that methodology does matter, according to Mark Ochs, chief attorney, committee on professional standards for the Third Judicial Department of New York’s Court of Appeals. “If they started looking at Best Lawyers or Superlawyers, I think you would have to come to a conclusion as to whether they are a bona fide professional rating service or if you get that title based on if you pay so much,” Ochs said. “That would likely not be considered a bona fide professional rating. “But if it’s peer review or could have some objective standard that’s not related to purchasing something, yes,” Ochs said Superlawyers’ president White said, “I think the rules in New York are great. We completely agree that if it’s pay to play, that has to be revealed because that would be misleading to consumers. “It’s the best of all possible worlds,” he said. “You’ve got information going to consumers but consumers are being protected by being misled by non-bona fide rating services.” Superlawyers’ New York counsel, E. Joshua Rosenkranz of Heller Ehrman in Manhattan, said he is buoyed by the new rules’ use of the phrase “bona fide professional ratings” because it mirrors Superlawyers’ proposed amendment to the relevant rule, Section 1200.6 of New York’s advertising rules. In an Aug. 30 comment to the court, Rosenkranz proposed a rule allowing advertisements of “ratings or assessments by bona fide independent entities” that were not influenced by financial contributions or other illegitimate means. Rosenkranz said, “What the New York presiding justices have done is underscore the value of professional rating services to consumers and underscore the proposition, which we have been arguing to the New Jersey Supreme Court, that it is simply not misleading for someone to advertise a professional rating so long as the rater is independent and not paid.” “The New Jersey Supreme Court justices will and ought to evaluate this on its own merits, but certainly guidance from across the river can be valuable,” he said. This article originally appeared in the New Jersey Law Journal, a publication of ALM.

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