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Super Lawyers will consider a First Amendment challenge if New Jersey follows Connecticut’s lead and makes the rating service publish detailed statistics about its selection process. Charles Thell, president of Key Professional Media, Super Lawyers’ parent company, said Wednesday that rules like those Connecticut adopted last year appear to infringe lawyers’ rights to publish information about their practices. In Connecticut, ads touting attorneys’ designation as Super Lawyers must include the address of a Super Lawyers’ company Web page that contains four statistics-rich paragraphs about how attorneys were picked in the state. Consumers who go to the site will learn about the selection process. The company agreed to post the page to save lawyers ads in its 2008 Super Lawyersmagazine in Connecticut from being deemed unethical. But if the New Jersey Supreme Court imposes the same requirement, the company will fight, Thell said. The possibility of a U.S. constitutional challenge to an outright ban on Super Lawyers in New Jersey has always been a possibility. This was the first such threat over a less drastic possibility: ads with disclaimers. A decision in New Jersey moved closer Wednesday with the passage of the deadline for written arguments to the Supreme Court’s special master on the subject, retired Appellate Division Judge Robert Fall. He now has 45 days to write a report and recommendations based on briefs, 135 exhibits and transcripts of oral arguments by Super Lawyers, Best Lawyers in America and Martindale-Hubbell on the propriety of lawyer ads mentioning inclusion in rating surveys. The Supreme Court Committee on Attorney Advertising started the controversy in 2006 with Opinion 39, which said that calling oneself a Super Lawyer or a Best Lawyer in America violates rules against misleading advertising. The Court stayed the ruling pending Fall’s review. Fall said in an interview he expects to finish his report in 30 days and that the exhibits include a rundown of how other states have dealt with the issue. He mentioned Connecticut as one of the jurisdictions that had made a ruling recently. In three opinions last autumn, Connecticut’s Statewide Grievance Committee, which regulates lawyer advertising, said certain lawyer ads in the 2007 Connecticut Super Lawyersissue and some scheduled for 2008 violated Rule of Professional Conduct 7.1. That’s the stricture against misleading ads. The committee added, however, that the ads would be fine with certain disclaimers. First, though lawyers can’t say they are “super” or “best,” they can say they were in a Super Lawyers survey and they must include the calendar year in which they were selected. Second, lawyers must be precise about the practice area for which they were selected. “Listing the year and the practice area for which the attorney has been selected avoids the implication that the attorney is a “super lawyer” compared to other attorneys and makes clear the limitations of the selection to the consumer,” the committee said in Advisory Opinion 07-01008 on Nov. 16. Third � and here’s what Thell doesn’t like � the ad must list a link to the Super Lawyers Web site page that describes the selection process in Connecticut. Super Lawyers constructed the page after an Oct. 4 opinion found that the claim in Connecticut Super Lawyers2007 magazine was misleading because those listed were said to be in “the top 5 percent” of attorneys in Connecticut and “among the best.” In the Nov. 16 opinion, though, the committee said it would be satisfied with ads that included a link � in text in print ads, electronically on Websites � to a page created just for the state, www.superlawyers.com/connecticut . “We find that this information appropriately disclaims any potentially misleading statement suggested by the tem Super Lawyers,” the opinion says. The site tells the public how many ballots the company mailed to lawyers in Connecticut (14,769), how many sent the ballots back (331) and how many lawyers were nominated (1,098). There’s also information about a “Star Search” and the formation of Blue Ribbon Panels to evaluate more practitioners. The final results: 2,881 lawyers were considered and 732 were selected. Too much information? Thell thinks so. By his reckoning, Opinion 39 and the Connecticut disclaimers violate lawyers’ rights to advertise and infringe Super Lawyers’ right to publish the rankings. Kerry O’Connell, assistant bar counsel to the Connecticut ethics panel, says authorities there were expecting a federal suit until the company created the Web page. Thell says the company made the decision to make the information available, rather than make Connecticut a federal battleground because it didn’t want to make a major legal effort in addition to the one already under way in New Jersey. Thell has estimated that Opinion 39, though stayed by the Supreme Court, has cost the company $2 million in fees and costs and lost revenue caused by lawyers uncertain about whether the advertising is ethical. Thell says the explanation of methodology on page 26 of the 2008 New Jersey Super Lawyers magazine is sufficient. It lists the factors and criteria that go into the process, but mentions only two numbers: 33,000 lawyers were invited to vote and the final list of lawyers selected represented 5 percent of the state’s lawyers. “Lawyer ratings are not misleading,” publisher William White wrote in the magazine, condemning Opinion 39. “Consumers understand that these ratings are no more guarantees of success or superiority than a position on the law review, a degree from Harvard or experience in 20 jury trials (which the Committee does allow lawyers to advertise.)” Meanwhile, the New Jersey version of the kind of data Super Lawyers is making public for the Connecticut public has been produced for-lawyers-eyes-only in Fall’s fact-finding proceedings. He placed a protective order over the methodological details of Super Lawyers, Best Lawyers of America and Martindale-Hubbell’s selection process to prevent the disclosure of proprietary information. The companies have put a lot of effort into creating their rankings and don’t want potential competitors to know how precisely the lists are put together, lawyers in the case say. Fall erred on the side of caution in dealing with such material and sealed many of the exhibits and all the final briefs and closed the hearings to the public when the details were discussed. He said on Wednesday that he would be able to write a report for publication without disclosing the material and would leave it to the Supreme Court to decide what should be made public.

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