New Jersey lawyers need to think twice before advertising their selection as a “Super Lawyer, a “Best Lawyer,” or another superlative-laden designation.
There’s a lot to love about New Jersey.
Its fantastic produce.
Its plentiful scenic lakes, mountains, state parks, and farmland.
Its clean beaches (according to the Natural Resources Defense Council).
Its dining options.
But one thing not lovable about New Jersey is how it chooses to regulate its lawyers’ advertising.
New Jersey’s regulation of its lawyers’ advertising
If you compare New Jersey’s Rules of Professional Conduct 7.1 and 7.2 with the American Bar Association’s Model Rules of Professional Conduct 7.1 and 7.2, you’ll see a regulatory scheme that does not trust New Jersey lawyers to take it upon themselves to avoid crafting and disseminating false and misleading advertising.
Notably, New Jersey RPC 7.1(a)(3) deems a lawyer’s communication/advertising about themselves, their services, or “any matter in which the lawyer has or seeks a professional involvement” to be false or misleading if it “compares the lawyer’s services with other lawyers’ services.”
That is, unless:
(i) the name of the comparing organization is stated;
(ii) the basis for the comparison can be substantiated, and
(iii) the communication includes the following disclaimer in a readily discernible manner: “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.”
The New Jersey Supreme Court Committee on Attorney Advertising’s May 2021 Notice to the Bar
Recently, the New Jersey Supreme Court Committee on Attorney Advertising issued a reminder in the form of a Notice to the Bar regarding “advertising awards, honors, and accolades that compare a lawyer’s services to other lawyers’ services.” You can access a PDF of the notice here.
The Committee issued the notice regarding “Super Lawyers,” “Rising Stars,” “Best Lawyers,” and other superlative-laden awards to “remind lawyers that they may refer to such awards, honors, and accolades only when the basis for the comparison can be verified and the organization has made adequate inquiry into the fitness of the individual lawyer,” and when “additional language [in ads regarding these awards is] displayed to provide explanation and context.” (Notice at 1.)
The Notice is only three pages long. But in those three pages the Committee on Attorney Advertising doubles down on making New Jersey lawyers jump through hoops when advertising that they won these kinds of awards.
First, the Committee says “lawyers may not advertise receipt of such awards unless, as a threshold matter, the conferring organization made adequate and individualized inquiry into the professional fitness of the lawyer.” (Id. at 2.)
Second, the Committee sets forth the additional information lawyers must include in advertisements regarding these awards. (Id.)
Third, the Committee explains that when awards include superlatives, a lawyer’s “advertising must state only that the lawyer was included in the list with that name, and not suggest that the lawyer has that attribute.” (Id.) In other words, New Jersey lawyers cannot call themselves “super,” “the best,” etc.
Finally, the Committee reminds lawyers that “every reference to such an award, honor, or accolade — even when it is in an abbreviated form such as [a] badge or logo — must include the required accompanying information.” But “the accompanying information cannot be buried at the bottom of a page, or in tiny print, or placed outside the screen shot on a website.” (Id. at 3.)
Does New Jersey’s regulation of its lawyers’ advertising do more harm than good?
Look, I understand why New Jersey Supreme Court Justices and other individuals in the state who shape its Rules of Professional Conduct want to protect New Jerseyans from false and misleading lawyer advertising.
However, at a certain point, New Jersey’s draconian lawyer advertising regulations can hurt the same people the regulations are designed to protect.
They can do so by making it difficult for well-intended, accomplished lawyers acting in good faith and in accordance with New Jersey’s RPCs to communicate their qualifications to prospective clients when those qualifications include comparisons to other lawyers.
When New Jersey’s RPCs discourage lawyer advertising that includes comparisons to other lawyers, or requires so many disclaimers in an ad that they drown out the underlying comparison, it becomes that much harder for New Jerseyans to determine who the most qualified lawyers are to help them with their legal issues.
But I digress. A discussion about the unintended consequences of RPCs concerning advertising are more suitable for a law review article, or perhaps a conversation over drinks, than a blog post like this.
The bottom line here is that if you are a New Jersey lawyer or you are at a law firm with a New Jersey presence and want to advertise professional comparative awards you or your colleague(s) received, read the Committee on Attorney Advertising’s Notice closely to save ethical headaches down the road (most likely initiated by your envious passive-aggressive competitors through an ethics complaint — but that too is a topic for another day).
For you non-New Jersey lawyers at non-New Jersey law firms reading this post, consider the Committee’s Notice (and this post) a reminder to make sure your firms’ ads regarding your and your colleagues’ professional comparative awards comply with your jurisdictions’ Rules of Professional Conduct and ethics opinions.
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