Have the PA Rules Regarding Lawyer Advertising Changed?

A recent article by Henry Gottlieb, originally published in the New Jersey Law Journal, appeared on Law.Com. Entitled “Ethics Crusaders Crush ‘SuperLawyers””, it announced that the New Jersey Supreme Court ethics panel prohibited attorneys from advertising their inclusion in “SuperLawyers” and “Best Lawyers in America” in Opinion 39 issued on July 19, 2006.

The panel concluded that the ads created unjustified expectations about results a lawyer can achieve, and violated another rule against suggestions that one lawyer is better than another. Statements which are objective and verifiable are ok. After review of the process undertaken to provide inclusion and ranking, the panel agreed that these ratings are not objective.

Best Lawyers in America lists 744 New Jersey Lawyers and SuperLawyers’ New Jersey web site names 1,669 attorneys, according to the article. That has left New Jersey law firms scrambling to cleanse references to SuperLawyers and Best Lawyers from web sites, brochures, letterhead and so forth.

As one might expect, executives at both rating companies have stated that the opinion was unprecedented and unwarranted. And they have convinced many PA attorneys that this is a big change, and will have an undesirable impact in Pennsylvania. Unprecedented? Not at all.

Too many attorneys assume that what they see being done by some firms meets the guidelines in PA. Nothing could be farther from the truth. I see advertising every day which violates the Rules. The fact that the Rules are slow to be enforced, or in some cases escape enforcement because no one brings the error to the attention of the Disciplinary Board, does not make the error go away. So be careful if you copy the actions of other firms.

Case in point: a billboard located in Montgomery County displays an advertisement from a well-known well-respected law firm proclaiming “Voted Best Law Firm Again”. While that statement may be factual, it contains no disclaimer, and no detailed information regarding the process and criteria which produced the ratings. It can therefore cause a reasonable person to formulate a specific conclusion about the law firm or its services for which there is no reasonable factual foundation.

Is this interpretation in PA new? Nope. Take a look at the Philadelphia Bar Association Opinion 2004-10, issued December, 2004, regarding advertising which uses the designation “Pennsylvania Super Lawyer.” It concludes, in part:

Thus, under revised Rule 7.1, all comments must be “truthful” and may not create an unjustified expectation concerning the results a lawyer can achieve. Although Comment 3 permits an “appropriate disclaimer or qualifying language” in advertisements that would otherwise violate the Rule, the proposed advertisement in this inquiry does not contain any disclaimer or qualifying language. Consequently, the advertisement would also violate revised Rule 7.1. The Committee suggests that the amount of information necessary to make an advertisement compliant with Rule 7.1 varies depending upon the intended audience. It may be appropriate to conclude that the amount of disclaimer information that would be satisfactory in a lawyer-to-lawyer publication might not similarly be satisfactory when the ad in question appears in a more consumer, public-consumption type of publication, such as the Yellow Pages.

So in other words, the Martindale-Hubbell ratings are used mostly in lawyer-to-lawyer advertising. For that reason they have not been seen as a violation of the Rule. But let’s return to that billboard in question. All it displays is the statement that the firm has been voted best law firm again, and the name and address of the firm. No disclaimer. No further information to explain the rating system. And it is about as public-consumption as one can get, in terms of advertising medium.

I don’t think that there is any doubt the billboard advertisement crosses the line. Lawyers from other firms in the area drive by it and conclude it must be OK, based on the respectability of the firm which has created the billboard ad.

The Pennsylvania Bar Association has a new task force created by President Kenneth J. Horoho which will carefully examine the issue of lawyer advertising. I’m hoping it will help to increase educational efforts in PA to help lawyers and marketing organizations better understand what can and cannot be included in lawyer advertising.

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  1. Law Practice Management » Blog Archive » More on Lawyer Advertising — November 21, 2006 @ 7:17 am

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