Can a lawyer advertise a Super Lawyers or Best Lawyers ranking?

Plain-English summary

The Committee was asked whether a lawyer or law firm may reference a ranking by a commercial rating system, such as Super Lawyers or Best Lawyers in America, in advertising. It concludes the reference is permissible so long as it provides the complete context: the publication name, the date, and the field of practice, if one was specified. The opinion supplies a sample format ("Attorney's Name was selected for inclusion in PUBLICATION Date," with the field added if the ranking was practice-area specific) and clarifies that the Bar is not endorsing any ranking system.

The opinion grounds the analysis in Rule 7.1, which bars false or misleading communications, including those that create an unjustified expectation of results or that compare a lawyer's services with others' unless the comparison can be factually substantiated. It notes the model-rule annotation's point that a comparison drawn from a rating system can be verified, so it is not misleading even if the rating system is not widely known to the public. Surveying other jurisdictions, the opinion describes a minority view (for example, an early New Jersey opinion treating Super Lawyers references as misleading) and a majority view permitting such references with context; it adopts the Connecticut Statewide Grievance Committee's approach, which requires the reference to be explained rather than a bare "Super Lawyer" claim.

The opinion adds two further limits. Under Rule 7.2, a lawyer may not pay someone to recommend or channel work, but mentioning a ranking does not violate Rule 7.2 as long as the lawyer did not pay to be selected; paying to be listed in or to advertise in the publication is permitted. Under Rule 7.4, which limits stating or implying that a lawyer is a "specialist" or "certified," including a properly contextualized ranking is not in itself a violation.

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer may advertise a commercial ranking only with full context: the publication name, the year, and the field of the ranking if specified, using the kind of format the opinion sets out. A bare "Super Lawyer" claim without that context is, per the opinion, potentially misleading under Rule 7.1. The opinion treats the reference as permissible under Rule 7.2 only where the lawyer did not pay to be ranked (paying to be listed or to advertise is allowed), and says a properly contextualized ranking does not by itself violate Rule 7.4's limits on specialist or certified claims.

Common questions

Q: Can a lawyer say they were named a Super Lawyer in an ad?

A: Yes, with context. The opinion concludes a lawyer may reference the ranking if the ad states the publication, the date, and the practice area if one was specified.

Q: Is just saying "Super Lawyer" enough?

A: No. The opinion, adopting the Connecticut approach, treats an unexplained "Super Lawyer" reference as potentially misleading under Rule 7.1 and requires the full context.

Q: Does Rule 7.2 prohibit advertising a ranking?

A: No, so long as the lawyer did not pay to be ranked. The opinion notes paying to be listed in or to advertise in the publication is permitted, but paying for the ranking itself is not.

Q: Does mentioning a ranking imply being a "specialist" under Rule 7.4?

A: The opinion concludes that including a properly contextualized professional ranking is not, in itself, a violation of Rule 7.4.

Background and rules framework

The opinion interprets Alaska Rules of Professional Conduct 7.1 (false or misleading communications about a lawyer's services, analog of Model Rule 7.1), 7.2 (advertising and payment for recommendations, Model Rule 7.2), and 7.4 (communication of fields of practice and specialization, Model Rule 7.4). It relies on the model-rule annotation on verifiable comparisons and adopts the Connecticut Statewide Grievance Committee's analysis.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 7.1 (false or misleading communications) and commentary
• Alaska RPC 7.2 (advertising; payment for recommendations)
• Alaska RPC 7.4 (specialist and certified claims)

Cases:

• Alexander v. Cahill, 2007 WL 2120024 (N.D.N.Y. July 20, 2007)
• In re Opinion 39 of the Committee on Attorney Advertising, 197 N.J. 66 (2008)

Other opinions cited:

• Connecticut Advisory Op. 07-00188-A; New Jersey Ethics Op. 39

See also

• CA COPRAC Op. 2012-186: Social Media Advertising
• AL Bar Op. 2003-01: Advertising Issues
• AK Bar Ethics Op. 2020-2: Publicizing Client Recoveries

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2009-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 2009-2
Use of Membership in Lawyer Ranking System In Lawyer/Law Firm Advertising Question Is it permissible to reference ranking by a commercial rating system in a lawyer’s or law firm’s advertising materials? Lawyers and law firms increasingly are listing a ranking in commercial publications such as SUPER LAWYERS, BEST LAWYERS IN AMERICA, and other similar rankings in their advertising materials. This opinion establishes guidelines for including such rankings in advertisements to avoid a violation of Alaska Rules of Professional Conduct 7.1 and 7.2. Conclusion Lawyers and law firms may refer to a listing in SUPER LAWYERS, BEST LAWYERS, or another commercial professional ranking so long as the reference includes the publication name, date, and the practice area, if one was specified, in which the lawyer was ranked or selected. By issuance of this ethics opinion, the Alaska Bar Association is not endorsing any of the commercial ranking systems referenced herein. Specifically, a lawyer shall utilize essentially the following format when including a lawyer’s professional ranking in advertising materials: Attorney’s Name was selected for inclusion in PUBLICATION Date. Thus, for example, a lawyer may state: Jane Doe was selected for inclusion in ALASKA SUPER LAWYERS 2008. If the ranking was limited to a specific area of practice, such information shall be included as follows: Attorney’s name was selected for inclusion in PUBLICATION Date in the area of field of practice.

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Again, for example, the lawyer could state:
John Doe was selected for inclusion in BEST LAWYERS IN AMERICA 2008 in the area of family law.

Discussion
Alaska Professional Conduct Rule 7.1 prohibits a lawyer from making a false or misleading communication about the lawyer, the lawyer’s services, or a prospective client’s need for services. Communications are defined to be false or misleading if they contain a material misrepresentation of fact or law; if they are likely to create an unjustified expectation of results; or if they compare the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated. The Commentary to Rule 7.1 explains that all statements about a lawyer’s services must be truthful. It explains further that even truthful statements are prohibited if they may mislead a layperson. Comment [3] to the Model Rules of Professional Conduct elaborates that an advertisement that truthfully reports a lawyer’s achievements may be misleading if presented in a way that would lead a reasonable person to form an expectation that the same results could be obtained for other clients, since each case has unique factual circumstances. Thus, advertisements that contain information about results obtained on behalf of a client, the lawyer’s record in obtaining favorable verdicts, or client endorsements are ordinarily precluded by Rule 7.1(b). A comparison of one lawyer’s services to another lawyer’s services can also be misleading if the information would lead a reasonable person to believe the comparison could be substantiated, when it fact it cannot. The Annotation to Model Rule 7.1 explains that the key to avoiding a misleading comparison is the ability to verify the comparison. The Annotation concludes that, if a rating system is utilized in the comparison, the comparison may be verified, so it is not misleading even if the rating system is generally unknown by the public. Companies focused on rating lawyers are not a new phenomenon. The first and arguably most well known is MARTINDALE-HUBBELL’s rating system, which began in the late 1880s. Other companies prevalent in the United States include THE BEST LAWYERS IN AMERICA, CHAMBERS USA, LAWDRAGON, and SUPER LAWYERS.

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The use of lawyer rankings in advertising and promotional press releases has become controversial. SUPER LAWYERS has received the most attention in recent ethics opinions. A minority of jurisdictions has determined that references to rankings in a publication such as SUPER LAWYERS are unethical. For example, the New Jersey Supreme Court’s Committee on Attorney Advertising ruled that advertising an attorney’s inclusion in SUPER LAWYERS is a violation of Rule 7.1 because it is likely to create unjustifiable expectations and compares the “Super Lawyers” to non-“Super Lawyers.”1 This New Jersey Opinion has been stayed pending a challenge in the New Jersey Supreme Court.2 The New York Appellate Division proposed an amendment to their disciplinary rules that prohibited “any nickname, moniker, motto, or trade name that implies an ability to obtain results.”3 On July 20, 2007, the United States District Court found the amendment to be an unconstitutional limit on free speech.4 The majority view regards advertising that mentions a rating received from a commercial publication to be ethically permissible. The State of Connecticut Statewide Grievance Committee offered a particularly thoughtful analysis. The Connecticut Committee determined that an unexplained reference to an attorney as a “Super Lawyer” in an advertisement is “potentially misleading and confusing to consumers.” The Connecticut Committee recognized that the SUPER LAWYER selection process is “subjective and arbitrary,” but decided that a truthful reference to a ranking by SUPER LAWYERS is not unethical if sufficient information is provided to put the reference in context.5 To alleviate potential confusion, the Connecticut Committee requires that the reference to “Super Lawyer” must be explained. As an example, the Connecticut Committee indicated that announcing that a lawyer has been designated a Connecticut Super Lawyer in CONNECTICUT SUPER LAWYERS 2007 magazine is allowed, but stating simply that a lawyer is a Super Lawyer is not allowed.

1

N.J. Ethics Op. 39. Advertisements Touting Designation as “Super Lawyer” or “Best Lawyers in America.” July 24, 2006. 2

In re Opinion 39 of the Committee on Attorney Advertising, 197 N.J. 66, 961 A.2d 722 (2008). 3

N.Y. Comp. Codes & Regs. Tit. 22 Sec. 1200.6.

4

Alexander v. Cahill, 2007 WL 2120024 (N.D.N.Y. July 20, 2007).

5

C.T. Advisory Opinion #07-00188-A. Print Media Advertisement Super Lawyers. October 4, 2007.

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This Committee agrees with and adopts the approach of the Connecticut Statewide Grievance Committee. A lawyer does not act unethically in advertising his or her selection or ranking in a commercial publication, including SUPER LAWYERS and BEST LAWYERS OF AMERICA, so long as the complete context is provided -- meaning that the lawyer’s advertising must state accurately the publication by which he or she was ranked, the year of the ranking, and the field of the ranking, if one was specified. Sample acceptable statements are set forth above. Any advertising must also comply with Alaska Professional Conduct Rule 7.2. Under Rule 7.2, a lawyer may not provide compensation to a person for recommending the lawyer’s services, though a lawyer may pay the reasonable cost of advertising. The Comment to Rule 7.2 explains that a lawyer may not pay another person to channel work to him or her. But the rules do not prohibit third persons from promoting or recommending a particular lawyer’s services. A lawyer’s mentioning his or her ranking or selection by a professional publication does not violate Rule 7.2, so long as the lawyer did not pay to be selected. SUPER LAWYERS, BEST LAWYERS IN AMERICA, CHAMBERS, and MARTINDALE-HUBBELL do not charge a lawyer to be ranked. They may charge a lawyer to be listed or to advertise in the publication, and paying for such a listing or advertisement is not prohibited. Finally, any advertising must comply with Rule 7.4, which, with narrow exceptions, prohibits a lawyer from stating or implying that the lawyer is a “specialist” or “certified.” Including a professional ranking, such as described above, in a lawyer’s advertising materials is not in itself a violation of Rule 7.4.

Approved by the Alaska Bar Association Ethics Committee on April 2, 2009. Adopted by the Board of Governors on May 5, 2009.

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