There are so many designations nowadays for lawyers. Super Lawyers is at the top: those who wear a cape and are able to leap over buildings (or at least adversaries) in a single bound. Best Of Lawyers. AV rated lawyers. A dizzying array of seemingly distinguishing designations. The question of ethically advertising them, though, is still being asked. As recently as yesterday, in fact. And the answers are being largely ignored. Mostly because so many attorneys have already ignored the answers, or failed to even ask the question in the first place, so that when an attorney looks at what their competitors have done, the “correct” answer seems to put them at a competitive disadvantage.
Keep in mind that just because some (many) attorneys list these designations inappropriately or improperly, it doesn’t mean it will pass muster with the Disciplinary Board. There’s no safety in numbers. Even if a thousand other attorneys do it wrong the same way you do, if someone makes a complaint about a particular firm, say your firm, that firm will be sanctioned. Fortunately for most attorneys, the D-Board is so backed up with complaint investigations and hearings, they have no time to “prowl” to enforce.
I wrote about this in a post entitled “Have the PA Rules Regarding Lawyer Advertising Changed?” way back in August, 2006. I stuck my neck out later that year in a post entitled “More on Lawyer Advertising” in which I declared my opinion that it would be best to have all attorney advertising in PA require pre-publication approvement in the same manner as in Florida. It was not well-received, but I said it for exactly the reason set forth above, what is happening is a perpetuation of incorrect practices, simply because an overburdened Disciplinary Board barely has time to respond to complaints, let alone act on a proactive basis to enforce the PA Rules.
Let’s revisit once again what must happen in PA with respect to all these designations, under Rule 1.7. From PA Informal Opinion 2005-188 we see this comment:
“ . . .assuming you were voted “Best Lawyer of X County”, while the statement may be factually accurate, without an explanation regarding the basis for the designation, it could be deemed misleading and, thus, constitute a violation of Rule 7.1. . . . the inclusion of an appropriate disclaimer may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.”
In Philadelphia Opinion 2004-10:
“It is the opinion of the Committee that, although an attorney advertisement may state that an attorney has been designated a “Super Lawyer,” it may only do so when the advertisement contains sufficiently detailed information about that process and criteria for the reader to whom the advertisement is directed, to determine the manner and context within which the designation was made. Blanket statements that do not provide accurate and sufficient contextual information concerning ratings or other similar appellations do not comply with the Rules of Professional Conduct, currently and as amended January 1, 2005.”
I think these are pretty clear. As long as there is some notation about the process and criteria for the award, it may be mentioned. Otherwise it is potentially misleading.
While I am on this rant, let me remind you that you cannot use subjective adjectives or comparisons in your advertising, which includes your web site. Words like “better, more, smarter” are no-nos. I see them all the time. You can’t call yourself “expert” unless it is in one of the specifically designated specialties of law where one can earn the designation, such as intellectual property. Again, I see these statements all the time, e.g. “Attorney X is an expert in land use and acquisition.”
I hate to sound like the Grinch. The reason I see these violations as problematic has not changed since I wrote about it in 2006. Like many of you, I am seriously concerned about the loss of esteem with which lawyers are regarded by the general population. I think that the impact which some lawyer advertising has had on the public has been responsible for some of this. And it is exactly the general population which is so easily misled by these ratings, and what they actually represent. Without any context, a designatiion of Super Lawyer or Best Of will most certainly create expectations. When those expectations are not met, those designations will become quickly devalued in the eyes of the general population. And that affects those of you for whom the designation should be meaningful. In short, when misused on a massive scale, these designations become completely ineffective as differentiators.