Can a North Carolina lawyer advertise being named to a 'best,' 'super,' or 'distinguished' lawyer list or organization?

Plain-English summary

The opinion addresses whether a lawyer may advertise inclusion in a list or membership in an organization that describes its members with self-laudatory terms such as "best," "super," or "distinction." It superseded and withdrew 2007 FEO 14 (the prior North Carolina opinion on advertising inclusion in lists such as Super Lawyers), which the State Bar Council withdrew on October 25, 2019, the day it adopted this opinion.

The opinion concludes such advertising is permitted subject to conditions, grounded in Rule 7.1(a), which bars false or misleading communications, including a material misrepresentation, a communication likely to create an unjustified expectation about results, or an unsubstantiated comparison to other lawyers' services. The committee surveys the First Amendment commercial-speech cases that frame lawyer advertising: Bates v. State Bar of Arizona (1977), Central Hudson (1980), In re R.M.J. (1982), and in particular Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990) and Ibanez v. Florida Department of Business and Professional Regulation (1994), which protected truthful advertising of a credential conferred by a "bona fide organization" using objectively clear standards.

The opinion sets three conditions. First, the lawyer (or firm) may pay nothing for the award, accolade, or inclusion itself; marketing or advertising fees that must be paid before inclusion become impermissible compensation that makes the accolade misleading under Rule 7.1(a), though the lawyer may pay the reasonable cost of advertising the inclusion after it is granted (Rule 7.2(b)). Second, before advertising, the lawyer must confirm the conferring organization is bona fide and made an adequate, individualized inquiry into the lawyer's qualifications using objective, verifiable, consistently applied factors (such as years in practice, experience, peer review, discipline record, publications, and testimonials). Third, the advertisement must explain the standards for inclusion (or how to obtain them), must state only that the lawyer was included (not that the lawyer has the attribute the list's name implies), must include a results-disclaimer where the inclusion could create unjustified expectations, and must indicate the year(s) of the award or membership.

The opinion adds that a lawyer must determine that a particular group or list satisfies each requirement before advertising inclusion, and has a continuing obligation to confirm compliance at each renewal.

In practice

Under the North Carolina rules as they stood at the time of the opinion, advertising inclusion in a self-laudatory list or organization is permitted only where all three conditions are met. The lawyer must pay nothing for the inclusion or accolade itself; per the opinion, fees that must be paid before inclusion are treated as compensation that renders the accolade misleading under Rule 7.1(a), although paying the reasonable cost of advertising the inclusion afterward is allowed under Rule 7.2(b).

The opinion holds that the conferring organization must be bona fide and must have made an individualized inquiry using objective, verifiable, consistently applied standards, and that the advertisement must disclose those standards (or how to obtain them), state only that the lawyer was included rather than that the lawyer holds the implied attribute, carry a results-disclaimer where unjustified expectations could arise, and state the year(s) of the award or membership. The opinion describes the lawyer's obligation to confirm compliance as continuing through each renewal.

Common questions

Q: Can a North Carolina lawyer advertise being named a "Super Lawyer" or "Best Lawyer"?

A: Yes, subject to conditions. The opinion permits advertising inclusion in such lists only if the lawyer pays nothing for the inclusion itself, the organization uses objective, verifiable, individualized standards, and the advertisement discloses those standards, states only that the lawyer was included, and gives the year.

Q: Can a lawyer pay to be included on the list?

A: No. The opinion concludes that fees required before inclusion become compensation that makes the accolade misleading under Rule 7.1(a). A lawyer may, however, pay the reasonable cost of advertising the inclusion after it is granted (Rule 7.2(b)).

Q: What must the advertisement say about how the list is compiled?

A: It must explain the standards for inclusion or tell consumers how to obtain them, must state only that the lawyer was included (not that the lawyer has the implied attribute), and must indicate the year(s) of the award or membership; a results-disclaimer is required where inclusion could create unjustified expectations.

Q: Does this replace the old North Carolina opinion on advertising list inclusion?

A: Yes. An editor's note states that 2007 FEO 14 was withdrawn by the State Bar Council on October 25, 2019, when the Council adopted this opinion.

Background and rules framework

The opinion interprets North Carolina's advertising rules in light of First Amendment commercial-speech doctrine. Rule 7.1 (Model Rule 7.1) prohibits false or misleading communications about a lawyer or the lawyer's services, including material misrepresentations, communications likely to create unjustified expectations, and unsubstantiated comparisons to other lawyers. Rule 7.2(b) (Model Rule 7.2) permits paying the reasonable cost of advertisements. The opinion treats advertising a self-laudatory accolade as potentially misleading unless the underlying inclusion rests on objective, verifiable, bona fide standards rather than the lawyer's ability to pay.

The opinion relies on a line of United States Supreme Court decisions establishing that lawyer advertising is commercial speech protected by the First Amendment but subject to limited regulation, and that a state may not bar truthful, non-misleading advertising of a credential conferred by a bona fide organization with objectively clear standards.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / NC Rule 7.1(a) (false or misleading communications; unjustified expectations; unsubstantiated comparisons)
• Model Rule 7.2 / NC Rule 7.2(b) (paying the reasonable cost of advertisements)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising is protected commercial speech.
• Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980), commercial-speech standard.
• In re R.M.J., 455 U.S. 191 (1982), restrictions on non-misleading lawyer advertising must serve a substantial interest.
• Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990), advertising certification by a bona fide organization with objective standards.
• Ibanez v. Florida Department of Business and Professional Regulation, Board of Accountancy, 512 U.S. 136 (1994), advertising a credential from a private bona fide organization.

Other opinions cited:

• 2007 FEO 14 (withdrawn October 25, 2019): advertising inclusion in lists such as North Carolina Super Lawyers.
• 99 FEO 7, 2000 FEO 1, 2003 FEO 3: disclaimers and objective, verifiable standards in advertising.
• 2018 FEO 1: directories and rating systems; paying the reasonable cost of advertising.

See also

• NC State Bar Op. 2018 FEO 1: Website Directories and Third-Party Reviews
• Alabama Ethics Op. 1992-06: Advertising National Board of Trial Advocacy Certification
• CA COPRAC Op. 2019-199: Online Directory Profiles

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2018-formal-ethics-opinion-8/

Original opinion text

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

Editor’s Note: 2007 FEO 14, Advertising Inclusion in List in North Carolina Super Lawyers and Other Similar Publications, was withdrawn by the State Bar Council on October 25, 2019 upon adoption by the Council of the opinion below.

Inquiry:

Numerous companies and organizations provide lawyers with the opportunity to be included in a list or to become members of a group that describes itself with self-laudatory terms and/or bestows self-provided accolades to its members. Examples of such lists or groups are those that describe their included lawyers as “best,” “super,” and “distinction.” Lawyers then advertise their inclusion in these groups or lists to consumers.

Do the Rules of Professional Conduct permit a lawyer to advertise their inclusion in such self-laudatory groups or lists?

Opinion:

Yes, subject to certain conditions.

Rule 7.1(a) prohibits a lawyer from making false or misleading communications about himself or his services. The rule defines a false or misleading communication as a communication that contains a material misrepresentation of fact or law, or omits a necessary fact; one that is likely to create an unjustified expectation about results the lawyer can achieve; or one that compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.

Rule 7.1 derives from a long line of Supreme Court cases holding that lawyer advertising is commercial speech that is protected by the First Amendment and subject to limited state regulation. In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Supreme Court first declared that First Amendment protection extends to lawyer advertising as a form of commercial speech. The Court held that a state may not constitutionally prohibit a lawyer’s advertisement for fees for routine legal services although it may prohibit commercial expression that is false, deceptive, or misleading and may impose reasonable restrictions as to time, place, and manner. Id. at 383-84. Subsequent Supreme Court opinions clarified that the commercial speech doctrine set forth in Central Hudson Gas & Electric Corporation v. Public Service Commission of N.Y., 447 U.S. 557 (1980), is applicable to lawyer advertising. See In re R.M.J., 455 U.S. 191 (1982). Specifically, a state may absolutely prohibit inherently misleading speech or speech that has been proven to be misleading; however, other restrictions are appropriate only where they serve a substantial state interest, directly advance that interest, and are no more restrictive than reasonably necessary to serve that interest. Id. at 200-04.

Thirteen years after Bates, in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990), a plurality of the Supreme Court concluded that a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his certification as a trial specialist by the National Board of Trial Advocacy (NBTA). The Court found NBTA to be a “bona fide organization,” with “objectively clear” standards, which had made inquiry into Peel’s fitness for certification and which had not “issued certificates indiscriminately for a price.” Id. at 102, 110. If a state is concerned that a lawyer’s claim to certification may be a sham, the state can require the lawyer “to demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law.” Id. at 109. In concluding that the NBTA certification advertised by Peel in his letterhead was neither actually nor potentially misleading, the Court emphasized “the principle that disclosure of truthful, relevant information is more likely to make a positive contribution to decision-making than is concealment of such information.” Id. at 108.

Ibanez v. Florida Department of Business and Professional Regulation, Board of Accountancy, 512 U.S. 136 (1994), similarly held that a state may not prohibit a CPA from advertising her credential as a “Certified Financial Planner” (CFP) where that designation was obtained from a private organization. As in Peel, the Court found that a state may not ban statements that are not actually or inherently misleading such as a statement of certification, including the CFP designation, by a “bona fide organization.” Id. at 145. The Court dismissed concerns that a consumer will be mislead because he or she cannot verify the accuracy or value of the designation by observing that a consumer may call the CFP Board of Standards to obtain this information. Id.

The question here is whether advertising one’s membership in a group or inclusion on a list of lawyers that implies that the lawyer is, for example, “best” or “super” or “distinguished” is misleading because the term creates the unjustified expectation that the lawyer can achieve results that an ordinary lawyer cannot or compares the lawyer’s services with the services of other lawyers without factual substantiation. When a potential consumer of legal services sees the words “super” or “distinguished” associated with a lawyer by way of a bestowed award or accolade purporting to pertain to legal services, the consumer may view these awards or accolades as evidence of a lawyer’s competence and achievement. Therefore, to avoid misleading consumers, a lawyer may advertise such accolades or inclusion in self-laudatory groups or lists only when certain conditions are met.

First, no compensation may be paid by the lawyer, or the lawyer's firm, for the award or accolade being bestowed upon the lawyer or for inclusion in the group or listing. Although a lawyer may pay the reasonable costs of advertisements as a result of inclusion, see Rule 7.2(b) and 2018 FEO 1, marketing or advertising fees that must be paid prior to the lawyer’s inclusion in the group or listing or the lawyer’s receipt of the accolade or award effectively become compensation required from the lawyer for inclusion or for the accolade. As such, the accolade, award, or inclusion is misleading in violation of Rule 7.1(a) because it is bestowed, at least in part, because of a lawyer’s willingness and ability to pay, and not for reasons that are objective, verifiable, and bona fide. After the award, accolade, or inclusion has been granted, a lawyer may pay the reasonable costs of advertisements concerning the inclusion. However, marketing or advertising fees charged by the self-laudatory group that serve as a barrier to the lawyer’s inclusion in the group or receipt of an accolade are not permissible.

Second, before advertising the inclusion or any award associated with inclusion, the lawyer must ascertain that the organization conferring the award is a bona fide organization that made adequate and individualized inquiry into the lawyer’s qualifications for the inclusion or award. The selection methodology must be based upon objective, verifiable, and consistently applied factors relating to a lawyer’s qualifications (including but not limited to a lawyer’s years of practice, types of experience, peer review, professional discipline record, publications and/or presentations, and client and other third-party testimonials) that would be recognized by a reasonable lawyer as establishing a legitimate basis for determining whether the lawyer has the knowledge, skill, experience, or expertise indicated by the designated membership.

Third, any advertisement by the lawyer of his inclusion in a self-laudatory group or list must also contain an explanation of the standards for inclusion or provide the consumer with information on how to obtain the inclusion standards. See Bates, 433 U.S. at 375. The explanation of the standards for inclusion – wherever located – must be such that a potential consumer of legal services can reasonably determine how much value to place in the lawyer’s inclusion in such group or list. Additionally, the advertisement must state only that the lawyer was included in the list, and not suggest that the lawyer has the attribute(s) conferred by the group or list. This requirement applies equally to groups or lists that contain a superlative in the name of the group or list itself, such as “super” or “best,” and groups or lists that do not contain superlatives in the name of the group or list but bestow such superlatives on its included lawyers through the group’s or list’s marketing materials (including its online presence). When the group or list inclusion may create unjustified expectations, such as the expectation that a lawyer obtains a high-dollar verdict in every case, the advertisement must also include a disclaimer providing notice that similar results are not guaranteed, and that each case is different and must be evaluated separately See 99 FEO 7, 2000 FEO 1, and 2003 FEO 3. Lastly, the advertisement must indicate the year(s) in which the lawyer received the award or was a member of the organization.

A lawyer must determine whether a particular group or list satisfies each of these requirements before advertising their inclusion in the group or list, and a lawyer has a continuing obligation to ensure the group or list remains compliant with the requirements of this opinion upon each renewal. If all requirements are met, the lawyer may advertise his inclusion in the group or list.