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In re Opinion 39 of the Committee on Attorney Advertising

December 17, 2008

IN RE OPINION 39 OF THE COMMITTEE ON ATTORNEY ADVERTISING
JON-HENRY BARR, ESQ., GLENN A. BERGENFIELD, ESQ., CARY B. CHEIFETZ, ESQ., MARIA DELGAIZO NOTO, ESQ., ANDREW J. RENDA, JR., ESQ., AND JOHN S. VOYNICK, JR., ESQ., APPELLANTS, AND KEY PROFESSIONAL MEDIA, INC., (D/B/A "SUPER LAWYERS" AND "LAW & POLITICS"), INTERVENOR-APPELLANT, NEW JERSEY MONTHLY, LLC, APPELLANT, STUART A. HOBERMAN, ESQ., APPELLANT, AND WOODWARD-WHITE, INC., INTERVENOR-APPELLANT.



On review of an Advisory Opinion of the Committee on Attorney Advertising.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal considers challenges to Opinion 39 of the Supreme Court Committee on Attorney Advertising (Committee), which concluded that "advertisements describing attorneys as 'Super Lawyers,' 'Best Lawyers in America,' or similar comparative titles, violate the prohibition against advertisements that are inherently comparative in nature, RPC 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2)." Opinion 39 of the Sup. Ct. Comm. On Attorney Adver., 185 N.J.L.J. 360, 15 N.J. Lawyer 1549 (July 24, 2006).

On May 19, 2005, a member of the New Jersey Bar brought to the attention of the Committee a magazine titled "New Jersey Super Lawyers." According to the inquirer, that document was designed to be circulated among clients and potential clients in order to create the impression that the attorneys designated "Super Lawyers" are more qualified than other attorneys in the State. The inquirer asserted that the process of being designated and advertised as a "Super Lawyer" violated various sections of the RPCs. Similarly, on January 10, 2006, another member of the New Jersey Bar filed a grievance complaining about correspondence he had received from another law firm in the State touting the inclusion of several of its members among "The Best Lawyers in America for 2005."

The Committee considered these matters and, on July 26, 2006, issued Opinion 39. As noted above, that opinion concluded that advertisements describing attorneys as "Super Lawyers," "Best Lawyers in America," or similar comparative titles violate the RPCs. Upon emergent application, Opinion 39 was stayed by Orders of this Court.

Petitions seeking review of Opinion 39 were filed in short order by three groups. The first to file were six lawyers and Key Professional Media, Inc., d/b/a "Super Lawyers." Ten days later, the publisher of "Best Lawyers in America" filed a petition. Finally, New Jersey Monthly, LLC, which, by agreement with Key Professional Media, Inc., publishes special advertising sections in the New Jersey Monthly magazine titled "New Jersey Super Lawyers" and "New Jersey Super Lawyers Rising Stars," also filed a petition for review. By Order dated March 23, 2007, this Court granted the petitions and summarily remanded the matter to retired Appellate Division Judge Robert A. Fall to sit as a Special Master for the limited purpose of developing an evidentiary record in respect of the facts and legal issues that relate to the petitions for review.

On June 18, 2008, after consideration of a voluminous record, the Special Master issued his 304-page report. As a starting point, the Special Master concluded that "advertising by attorneys [is] a form of commercial speech protected by the First Amendment and may not be subjected to blanket suppression." Report at 54. He further highlighted that advertising that is false, deceptive, or misleading of course is subject to restraint, and further, that advertising claims as to the quality of services may be so likely to be misleading as to warrant restriction.

Citing to In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed. 2d 64 (1982), the Report distinguished between advertising that is "inherently" misleading and that which is "potentially misleading." It explained that "misleading advertising may be prohibited entirely; however, if potentially misleading information can be presented in a manner that is not deceptive, an absolute prohibition is not permitted." The Report concluded that the requirement of a disclaimer or explanation is the preferable approach to regulating attorney advertising that may otherwise be misleading, with any restrictions being no broader than reasonably necessary to prevent deception.

The Report noted that earlier decisional law addressed advertisements of attorney certification and differentiated between "statements of opinion or quality and statements of objective facts that may support an inference of quality." Report at 70. Once that distinction is drawn, a clear line of demarcation appears: "if the certification had been issued by an organization that had made no inquiry into petitioner's fitness, or by one that issued certificates indiscriminately for a price, the statement, even if true, could be misleading." Report at 70-71. The Report defined the logical quandary as follows:

Attorney advertising that extols inclusion in a listing and ranking of attorneys selected based on opinions of competence rendered in a peer-review survey of other lawyers is a quality-of-service claim. In a sense, it is the reporting of an objective fact, i.e., inclusion on the list, yet the underlying basis of the list or ranking is primarily the subjective opinions of competence expressed by those peer attorneys polled. [Report at 76.]

The Report compared RPC 7.1 with the model rule promulgated by the American Bar Association, as well as with RPC 7.1's counterparts in those jurisdictions that have adopted the use of disclaimers in lieu of a per se ban. From that comparative analysis, the Report warned that state bans on truthful, fact-based claims in professional advertising could be ruled unconstitutional when the state fails to establish that the regulated claims are actually or inherently misleading. The Report concluded that those states that have addressed the same issues have permitted comparative and quality-of-services advertising, usually construing such advertising to be an implied comparison, but finding there is a subjective or objective basis for the comparison that can be verified by disclosure and an analysis of the underlying peer-review rating methodology.

The Report described twelve regulatory components extracted from the advertising decisions of other states to provide some guidance to the Court should it elect to modify or interpret the RPCs to permit advertising of one's inclusion in the "Super Lawyers," "Best Lawyers in America" or Martindale-Hubbell lists. Included among the regulatory components are the following: the advertising representation must be true; the basis for the implied comparison must be verifiable by disclosure of the rating or certifying methodology utilized for compiling the listing; the rating methodology must have included inquiry into the lawyer's qualifications; and the rating cannot have been issued for a price or fee, nor can it be conditioned on the purchase of a product.

Written comments on the Special Master's Report were submitted by the petitioners, by LexisNexis, the publisher of "Martindale-Hubbell," and also by the Attorney General, as counsel to the Committee.

HELD: Opinion 39 of the Committee on Attorney Advertising is vacated and the matter is referred jointly to the Advisory Committee on Attorney Advertising, the Advisory Committee on Professional Ethics and the Professional Responsibility Rules Committee for expedited review and modification of RPC 7.1(a)(2) and (3).

1. The Court concurs with the Special Master's analysis and conclusion that "state bans on truthful, fact-based claims in lawful advertising could be ruled unconstitutional when the state fails to establish that the regulated claims are actually or inherently misleading." Report at 149. That conclusion mandates that Opinion 39 be vacated, as it does not provide the carefully nuanced analysis that informs the Special Master's Report. (p. 20)

2. Opinion 39's shortcomings are the inevitable result of the plain language of RPC 7.1(a)(3) (prohibiting comparative advertising statements) and RPC 7.1(a)(2) (prohibiting advertising "likely to create an unjustified expectation about results"). The Court is persuaded that the standards set forth in the RPCs require review and, at least in respect of RPC 7.1(a)(3), modification both because of the constitutional concerns identified in the Report and in light of the emerging trends in attorney advertising. This process is no simple task, and it is one that does not lend itself to the present adversary/adjudicatory posture of this matter. Because the question is addressed best within the context of this Court's administrative functions, the Court refers RPC 7.1(a)(2) and (3) to the Advisory Committee on Attorney Advertising, the Advisory Committee on Professional Ethics and the Professional Responsibility Rules Committee for their concurrent consideration of a redrafted Rule that will take into account the policy concerns expressed by the Rule while, at the same time, respecting legitimate commercial speech activities. The balance must be struck in light of the analyses and recommendations presented in the Report, together with such other sources and information as the Committees, acting jointly, may deem necessary and proper. (pp. 20-21)

The Opinion of the Committee on Attorney Advertising is VACATED and the matter is REMANDED for further proceedings.

JUSTICES LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS, and JUDGE SKILLMAN (temporarily assigned) join in the Court's opinion. CHIEF JUSTICE RABNER and JUSTICES LONG and ALBIN did not participate.

Per curiam.

Certification granted March 23, 2007

Remanded March 23, 2007

Submitted December 5, 2008

On July 24, 2006, the Supreme Court Committee on Attorney Advertising (Committee) issued Opinion 39, which concluded that "advertisements describing attorneys as 'Super Lawyers,' 'Best Lawyers in America,' or similar comparative titles, violate the prohibition against advertisements that are inherently comparative in nature, RPC 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2)." Opinion 39 of the Sup. Ct. Comm. on Attorney Adver., 185 N.J.L.J. 360, 15 N.J. Lawyer 1549 (July 24, 2006). For the reasons that follow, we vacate Opinion 39 and we refer the matter jointly to the Advisory ...


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