PressEthic

We've all seen those ads on television or in print advertising the services of a law firm that will "file your medical malpractice suit and WIN!" Are people really stupid enough to buy into those ads? I've never really given it much thought until today.

Last week, an article in the New York Times described the controversy over an insert in New Jersey Monthly Magazine. The insert, called the New Jersey Super Lawyers, purported to have a list of the top 5 percent of lawyers in the state. The Committee on Attorney Advertising, appointed by the N.J. Supreme Court, wrote in their report,

"The issue is whether advertisements in any medium of distribution publicizing certain New Jersey lawyers as “Super Lawyers” or “Best Lawyers in America” violate the prohibition against advertisements that are comparative in nature, RPC 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2). It is the Committee’s position that this type of advertisement is prohibited by the Rules of Professional Conduct."

The Committee also took issue with the fact that the advertisements in the insert that celebrated those chosen as "Super Lawyers" were paid-for advertising, with the biggest spreads being the most expensive. Obviously, being able to pay for a bigger ad does not make you a better lawyer.

The Committee's report went further, stating,

"Advertising which promotes a designation such as 'Super Lawyer' or 'Best Lawyer in America' does not comply with RPC 7.1(a)(3). RPC 7.1(a)(3) states that a communication is misleading if it compares the lawyer’s service with other lawyers’ services.' Use of superlative designations by lawyers is inherently comparative and, thus, not within the approved ambit of New Jersey’s Rules of Professional Conduct. Such titles or descriptions, based on an assessment by the attorney or other members of the bar, or devised by persons or organizations outside the bar, lack both court approval and objective verification of the lawyer’s ability. These self-aggrandizing titles have the potential to lead an unwary consumer to believe that the lawyers so described are, by virtue of this manufactured title, superior to their colleagues who practice in the same areas of law. "

"It is inevitable that a member of the public, reading an article about a certain attorney who has been designated by the magazine as a 'Super Lawyer,' will note a nearby advertisement congratulating that lawyer (though not using the prohibited words 'Super Lawyer'), and will attribute the marketing designation to the subject of the advertisement. Hence, the placement of an attorney advertisement in the magazine insert serves the same purpose as the use of the superlative, inherently comparative, marketing title."

The sketches that the report refers to are biographical profiles of "Super Lawyers" that may be written by the lawyer him/herself or by someone working for him/her. However, none of the "articles" have the word "advertisement" printed at the top of that page, and advertisements are supposed to be clearly designated as such.

There is no clear system for determining how one gets to be a "Super Lawyer." The survey distributed to lawyers provides results meant to be distributed to the general population, instead being intended for attorneys. Attorneys know from the survey that the end result will be to determine who is a "Super Lawyer." Obviously, this will create bias in the way the lawyers answer questions about themselves and other attorneys. Basically, the ads lead the public to believe that with "Super Lawyers" they will be guarunteed a higher quality of service, and better results, than if they used a non-"Super Lawyer." This is a classic case of false advertising.

A blog in the Wall Street Journal, however, quoted the publisher of "Super Lawyer" as saying,

“'Had they taken two minutes to ask about our methodology we would’ve supplied it,' said William White, the publisher of the 'Super Lawyers' magazines. 'We go through an incredible amount of work to come up with this list and rely heavily upon our own detailed research of the lawyers that are nominated. To call it arbitrary is just incredible.'"

The publisher and the president of "Super Lawyers" intend to contest the committee's decision. Comments on that same Wall Street Journal law blog mentioned that the size of the advertisement of a certain law firm in the insert directly corresponded with the number of "Super Lawyers" listed from that particular firm. Some "Super Lawyers" wrote comments defending the validity of the system (wow, really convincing, unbiased commentary here!).

An insert of "Super Lawyers: Manhattan" was included in the New York Times this summer. In New York this week, the Times reported that a proposal is being considered that could ban lawyers from a "'nickname, moniker, motto or trade name that implies an ability to obtain results.'"

What I wonder is why advertising for lawyers is so strictly monitored as opposed to say, advertising for all other services. Aren't they all under the same umbrella--businesses that consist of employees that provide a service to the public in exchange for a fee? How can we determine who is the "best" lawyer in America--is any survey going to be reliable or valid? Are lawyers expected to live by more rigorous ethical standards because of the American Bar Association and other regulatory associations?