During the past term, our Supreme Court chose to protect constitutionally guaranteed commercial free speech in lawyer advertising instead of upholding its own Committee on Attorney Advertising’s highly controversial Opinion 39 , which would have prohibited New Jersey lawyers from freely expressing their opinions on the quality of their peers. In making that decision, it also took the almost unheard-of step of declaring that certain parts of one of its own Rules of Professional Conduct is in need of a constitutional overhaul. In re Opinion 39 of the Committee on Attorney Advertising, 197 N.J. 66 (2008). Opinion 39 would also have prohibited lawyers who were highly regarded by their peers from stating that they had been elected as a “SuperLawyer” or among the “Best Lawyers.” These two publications conduct lawyer rating surveys using their own unique rating methodologies. Opinion 39, however, did not bar lawyers from participating in similar lawyer ratings surveys conducted by the publisher of the Martindale-Hubbell directory or in advertising their ratings given by that publication.
The case had a strange beginning when a New Jersey lawyer — whose peers had elected him to be a “Super Lawyer” — complained to the Supreme Court’s Committee on Attorney Advertising that among other things, the process of being designated and advertised as a “Super Lawyer” violated RPC 7.1 (a) (2), which prohibits advertising statements “likely to create an unjustified expectation about results the lawyer can achieve…,” and 7.1(a) (3), which prohibits any statement that “compares the lawyer’s service with other lawyers’ services[.]” The former Chair of the Committee on Attorney Advertising, George J. Kenny, then filed a grievance with the committee when he received a letter from a law firm touting the inclusion of several of its members among “ The Best Lawyers in America for 2005.”
