Did North Dakota's bar ethics committee uphold or withdraw its opinion limiting 'Super Lawyers' advertising?
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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee was asked to reconsider Opinion 08-02, which had addressed whether lawyers could market themselves as "Super Lawyers." Opinion 08-02 concluded the designation implicated Rule 7.1 (communications about a lawyer's services) and expressed concern about using it in advertising without explaining the designation's purpose and selection methodology. The committee noted that 08-02 had relied in part on a 2006 New Jersey advisory opinion (N.J. Ethics Op. 39) that essentially prohibited the designation, and that some North Dakota lawyers read 08-02 as having the same prohibitory effect.
The committee explained that the legal framework had changed. In December 2008, the New Jersey Supreme Court vacated N.J. Ethics Op. 39 and remanded for new rules, and in November 2009 it approved amendments to its Rule 7.1 with specific directives for advertising that compares lawyers or identifies accolades. The requesting lawyer also pointed out that Minnesota Law & Politics had changed its criteria for identifying "Super Lawyers."
Exercising its power to reconsider and withdraw its opinions, the committee decided this subject would be best addressed through amendments to North Dakota Rule of Professional Conduct 7.1, and elected not to issue another opinion on the merits at this time. It withdrew Opinion 08-02, stating it is no longer operative, and noted that 08-02 would remain on the bar's website marked as withdrawn.
In practice
This 2009 opinion withdrew SBAND Opinion 08-02 and did not replace it with new substantive guidance. The committee declined to opine on whether or how North Dakota lawyers may advertise a "Super Lawyers" or similar comparative designation, concluding that the question is better handled by amending Rule 7.1. Because the committee did not issue merits guidance, this opinion establishes only that Opinion 08-02 is no longer operative; a lawyer evaluating the use of rating or accolade designations in advertising should consult the current text of North Dakota Rule of Professional Conduct 7.1.
Common questions
Q: Is SBAND Opinion 08-02 on "Super Lawyers" still in effect?
A: No. The committee withdrew Opinion 08-02 and stated it is no longer operative, although it remains on the bar's website marked as withdrawn.
Q: Did the committee issue new rules on advertising the "Super Lawyers" designation?
A: No. The committee declined to issue another opinion on the merits, concluding the issue would be best addressed through amendments to Rule 7.1.
Q: Why did the committee reconsider Opinion 08-02?
A: It explained that the New Jersey Supreme Court had vacated the 2006 opinion that 08-02 relied on and later amended its own Rule 7.1, and that the rating publisher had changed its selection criteria, all of which changed the framework for the question.
Background and rules framework
The opinion concerns North Dakota Rule of Professional Conduct 7.1 (Model Rule 7.1, communications concerning a lawyer's services). Rather than interpret the rule, the committee withdrew its prior interpretation (Opinion 08-02) and pointed to rule amendment as the better vehicle, citing the New Jersey Supreme Court's decision vacating N.J. Ethics Op. 39 and its subsequent amendments to New Jersey's Rule 7.1.
The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.
Citations and references
Rules of Professional Conduct:
- Model Rule 7.1 / N.D.R. Prof. Conduct 7.1 (communications concerning a lawyer's services)
- N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)
Cases:
- In re Opinion 39 of the Committee on Attorney Advertising, 197 N.J. 66, 961 A.2d 722 (2008) (vacating New Jersey's "Super Lawyers" opinion)
Other opinions cited:
- SBAND Opinion 08-02 (withdrawn by this opinion)
- N.J. Ethics Op. 39 (2006) (vacated by the New Jersey Supreme Court)
See also
Source
- Landing page: https://www.sband.org/page/ethics_opinions
- Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_09-08.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
STATE BAR ASSOCIATION OF NORTH DAKOTA
DRAFT ETHICS OPINION
Opinion No. 09-08
(Withdrawal of Ethics Opinion No. 08-02)
The Ethics Committee received a request that it reconsider Ethics Opinion 08-02, which
addressed whether lawyers could market themselves as "Super Lawyers." The Committee
elected to reconsider the opinion, and it has decided to withdraw Ethics Opinion 08-02.
FACTS
On April 10, 2008, the Ethics Committee adopted Ethics Opinion No. 08-02, related to
"Super Lawyers." The opinion should be consulted for the details of the Super Lawyers
designation. In summary, the opinion concluded that the "Super Lawyers" designation
implicated N.D.R.Prof. Conduct 7.1 governing communications regarding a lawyer's services.
The opinion expressed specific concerns about using the designation in advertising "without an
explanation of the purpose for the designation and the methodology used to select identified
attorneys..." In part, the opinion was based on a July 24, 2006, ethics opinion issued by the New
Jersey Supreme Court Advisory Committee on Attorney Advertising, N.J. Ethics Op. 39(2006),
which essentially prohibited New Jersey attorneys from using the "Super Lawyers" designation.
It appears to the Committee that Opinion 08-02 was perceived by some North Dakota lawyers to
have the same effect.
On December 17, 2008, the New Jersey Supreme Court vacated N.J. Ethics Opinion 39
with specific detailed rationale, and remanded the matter to the Advisory Committee on Attorney
Advertising to develop specific rules consistent with its decision. See In re Opinion 39 of
Comm. on Attorney Adver., 197 N.J. 66, 78-80 961 S.2d 722, 730-731 (2008). The New Jersey
Supreme Court decision was based on the report of a special master, who devised twelve
regulatory components related not only to Super Lawyers, but also Best Lawyers in America and
Martindale-Hubbell designations. Id. at 76-77, 961 A.2d at 729. The requesting lawyer asked
the Committee to consider the N.J. Supreme Court Opinion and the fact that Minnesota Law &
Politics had changed its criteria for identifying "Super Lawyers."
DISCUSSION
The Ethics Committee has the power to reconsider and withdraw the ethics opinions it
has issued. It appears that the New Jersey Supreme Court decision vacating N.J. Ethics Op. 39
(2006) has changed the framework for discussion of not only the use of the "Super Lawyers"
designation, but also use of the "Best Lawyers in America" and Martindale-Hubbell
designations. On November 2, 2009, the New Jersey Supreme Court approved amendments to
RPC 7.1 (Communications Concerning a Lawyer's Services). The amendments contain specific
directives to lawyers who want to use designations in advertising that are comparative to other
lawyers or which identify accolades a lawyer may have received. The Committee believes that
this matter may be best addressed through amendments to N.D.R.Prof. Conduct 7.1. The
Committee, therefore, has elected not to issue another opinion on this subject at this time. St.
Bar Ass'n. N.D. Ethics Op. 08-02 is hereby withdrawn and is no longer considered operative.
The opinion will remain available at the Bar Association's website with a designation that it was
subsequently withdrawn by this opinion.
CONCLUSION
Ethics Opinion 08-02 is hereby withdrawn.
This opinion is provided pursuant to North Dakota Rules of Lawyer Discipline 1.2(B),
which states:
A lawyer who acts in good faith and reasonable reliance on a written opinion or
advisory letter of the ethics committee of the association is not subject to sanction
for violation of the North Dakota Rules of Professional Conduct as to the conduct
that is the subject of the opinion or advisory letter.
This opinion was drafted by Alvin ©. Boucher and James S. Hill, and was approved by the
majority of the Ethics Committee on Noveniber 17, 20
Dann Greenwood, Chair
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