RI-341

June 8, 2007

SYLLABUS

A lawyer who is listed as a "Super Lawyer" in the Key Professional Media Inc publication "Michigan Super Lawyers" may refer to such a listing in advertising that otherwise complies with MRPC 7.1.

References: MRPC 7.1

TEXT

A lawyer inquires whether it is permissible to advertise that he has been designated a "Super Lawyer" in the publication Michigan Super Lawyers. This publication lists lawyers in various fields of practice in Michigan[1] who have qualified for the designation through the methodology described in the publication; and is distributed free to lawyers in Michigan and is included as inserts or special advertising sections in general interest periodicals, such as newspapers.

Selection as a Super Lawyer is the result of a process[2] that is claimed to include: a survey[3] of Michigan lawyers licensed for five or more years who are asked to nominate lawyers; a search made by the publisher of databases, online sources, periodicals and trade journals; research by publication staff of the results of the search to evaluate peer recognition and professional achievement; and review by a selected peer review group of the results of the research. Selection is limited to the top 5% of lawyers nominated in the state. No lawyer can pay for designation as a Super Lawyer. Advertising in the publication has no relationship to the decision about who will receive the designation. The process has safeguards against ballot stuffing. The disciplinary records of the bar are reviewed, and procedures are in place to screen out lawyers with a disciplinary record or other facts that reflect adversely on the lawyer's fitness.

Super Lawyers is one of a number of lawyer-rating publications. Martindale Hubbell Law Directory[4] ("Martindale Hubbell") has rated lawyers for many years, using rating of AV, BV, or CV based on peer reviewed levels of experience (e.g., only lawyers with 10 years experience can qualify for A) and legal ability; and only lawyers regarded as having very high ethical standards (the V) can be rated at all. Other publications that rate and even rank lawyers based on a process involving peer review include The Best Lawyers in America[5] ("Best Lawyers"), Who's Who Legal, the International Who's Who of Business Lawyers[6] ("Who's Who") and Chambers USA Listings ("Chambers").[7]  Each of these publications is based on peer recommendations and peer review. Each list lawyers by specialty practice area. The publisher of Chambers conducts interviews with a broad base of recommended and recommending lawyers as part of its selection process; and then grades lawyers (and law firms) selected for listing on a scale of 1 through 6, selecting a few for a higher "standout" rating; and not ascribing a numerical rating to others at all.

The Michigan Rule of Professional Conduct that governs communication about a lawyer's services is Rule 7.1, which reads in full as follows:

Rule 7.1 Communications Concerning a Lawyer's Services.

A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. A communication shall not:

(a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;

(b) be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

(c) compare the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

In states with rules of professional conduct similar to Michigan's, the inquiry concerning being listed in such a publication, and advertising that fact, has focused on whether the listing violates the prohibition on comparing the lawyer's services with those of other lawyers. Ranking appears to distinguish the listed lawyer from an unlisted one, or a higher graded listed lawyer form a lower graded one.

A consistent history of cases on the right of the state to regulate lawyer advertising has made it clear that states do not have the authority to regulate truthful advertising. See, Bates v. State Bar of Arizona, 453 U.S. 350 (1977); Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990); Ibanez v. Fla. Dep't of Bus. and Prf'l Regulation, 512 U.S. 136 (1994). In Peel, the Supreme Court approved advertisement by a lawyer of a designation issued by a national organization that the lawyer, having met a set of criteria relating to experience in litigation practice, has been certified as a trial lawyer. The Court stated:

A claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, but is simply a fact, albeit one with multiple predicates, from which a consumer may or may not draw an inference of the likely quality of an attorney's work.[8]

Lawyers often refer to their Martindale Hubbell rating in advertising; and the permissibility of that was recognized in Mason v. Florida Bar, 208 F.2d 952 (11th Cir., 2000). The Court in Mason quoted with approval the statement from Peel, and likened the rating to a claim of certification. Advertising that a lawyer is listed in Best Lawyers was approved by the Supreme Court of Virginia in August, 2005, in approving Opinion A-0114 of the Virginia State Bar, applying its rule of professional conduct identical to Michigan Rule 7.1(c), on the basis that the lawyer does not himself claim that he is a "best lawyer" because he is listed in the book, but merely states truthfully that he is listed as a best lawyer in that publication. Opinions to similar effect, based on rules comparable to Michigan's 7.1(c) have been issued in Tennessee[9] and Arizona[10] as regards Best Lawyers. Similarly, advertising that a lawyer has been listed in Super Lawyers has received approval from Tennessee[11] and Florida.[12] There are no opinions holding otherwise.[13]

We agree with these opinions that pertain to publications that rate or certify lawyers, all of which place some importance on the presence of certain factors or conditions. These are:

1. The rating or certifying organization has made inquiry into the lawyer's qualifications, and considered those qualifications in selecting the lawyer for inclusion.
2. The rating or certification is issued discriminately. In the case of Super Lawyers, listing is limited to the top 5% of lawyers in the state measured by a selection system uniformly applied.
3. The rating or certification is not issued for a price; it may not be bought or conditioned on purchase of a book, plaque or other goods.
4. The rating or certifying organization provides a basis on which a consumer can reasonably determine how much value to place in the listing or certification.
5. The basis of selection should be verifiable. That is, if peer review is claimed, it should be verifiable that it was conducted. This factor does not preclude subjective evaluation of the information about the lawyer by the rating or certifying organization. It is recommended by some that the lawyer include in his advertising a reference where the reader can ascertain the standards for inclusion.
6. The lawyer may state truthfully that he is listed in the specific publication (e.g., "2006 Super Lawyer, Super Lawyers Magazine"), and that he is thus included among those whom other lawyers have called the best; but may not state that because he is so listed, he is the best, or super.
7. If the lawyer is delisted, he must limit his claim to listing to the editions or years of the listing.

Other bar opinions have noted the existence of peer review in the process of selection, but we cannot say that is a required factor in advertising listing in a publication. Peer review would permit a statement that the lawyer has been considered as a "super lawyer" by other lawyers, but is not essential to advertising a listing in a publication that has satisfied the research and evaluation criteria expressed.

We note that the inquiry presented to the Committee pertained only to advertising the lawyer's listing in Michigan Super Lawyers. Based on the prevailing case law and the opinions of other state bar committees, and our own consideration of the applicable rule, we conclude a lawyer who is listed as a "Super Lawyer" in that publication may refer to such a designation in advertising that otherwise complies with MRPC 7.1. However, we believe that such a limited opinion would not adequately provide guidance to the bar. Accordingly, the opinion we express herein applies to listings and certifications that meet the conditions expressed, which would include (by example and not limitation) Martindale Hubbell, Who's Who, Best Lawyers and Chambers, as well as Super Lawyers.

[1] Key Professional Media Inc publishes the Super Lawyers magazine in many jurisdictions.

[2] The methodology for the selection process is described extensively at www.superlawyers.com.

[3] For the 2006 issue, lawyers were sent ballots. For the 2007 issue, lawyers were sent cards providing a PIN to allow voting at the website www.superlawyers.com.

[4] The Martindale Hubbell Law Directory is published by LexisNexis, a division of Reed Elsevier Inc

[5] Woodward/White Inc (S. Naifeh & G. White Smith eds.) 

[6] Law Business Research Ltd. This publication is not to be confused with the publications of Marquis Who's Who, a leading biographical publisher.

[7] Chambers & Partners Publishing (a division of Orbach & Chambers, Ltd.)

[8] 496 U.S. 91, 101.

[9] Board of Professional Responsibility of the Supreme Court of Tennessee Advisory Ethics Opinion 2006-A-841 (not for publication), applying Tennessee Formal Ethics Opinion 2004-F-149.

[10] State Bar of Arizona Opinion 05-03.

[11] See note 9.

[12] Letter from Ruth A. Smith, Assistant Ethics Counsel, Florida Bar, to William C. White, Publisher, Super Lawyers (April 20, 2006), www.superlawyersfacts.com/Appendix_2.pdf at PA-000196. See also opinions issued by the Philadelphia Bar Association, 2004-10, and the Iowa Bar, Opinion 05-03.

[13] Opinion 39 of the Committee on Advertising of the New Jersey Supreme Court found that advertising describing a lawyer as a "Super Lawyer" or a "Best lawyer" based on listings in these publications violated the prohibition on comparison contained in the Rule, or created unjustified expectation about results. The opinion was quickly stayed by an order of the Supreme Court of New Jersey, and remains so.