You know it’s “award season” – at least the legal world’s version of it – when your social media starts to fill up with posts that sound like this: “So honored to be included as one of the ‘Worlds Most Awesome Patent Lawyers’ with 43 other members of my firm.” The question for New Jersey lawyers is whether otherwise innocent humblebrags like this actually run afoul of our Rules of Professional Conduct. Somewhat surprisingly, most of these posts do.
Under RPC 7.1, lawyers cannot make false or misleading statements about their services. It used to be that any statements comparing one lawyer’s services to other lawyers’ services were deemed false and misleading. And since superlatives like “best,” “super,” “preeminent,” “distinguished,” “top,” “leading,” and “top-rated” are inherently comparative, this meant that no lawyer could advertise that they were included on a list of, for example, “New Jersey’s Best Lawyers.”
This changed about a decade ago when RPC 7.1 was amended to allow attorneys to advertise about winning comparative/superlative awards like this, but only if: “(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.’”
Now, the Committee has issued an opinion, Opinion 48 (“Supplementing Opinion 42: Rule of Professional Conduct 7.1(a)(3) – Honors, Awards, and Accolades that Compare Lawyers’ Services With Other Lawyers’ Services”). Issued on September 21, 2022, Opinion 42 reiterates that attorneys must go through a two-step process when deciding whether and how they can advertise comparative awards and accolades:
- Step 1: To comply with RPC 7.1, the accolade or honor must be based on verifiable, rigorous, and independent criteria. In other words, no popularity contests, no awards issued as rewards for joining an organization or paying a fee (i.e., no “pay to play”), and no awards where you must join an organization or participate in an organization’s website to receive the award. Rather, the entity issuing the accolade or honor must vet lawyers rigorousely and independently to evaluate the quality of their services.
- Step 2: If an award satisfies the first requirement, lawyers can only include it in their advertisements (print, online, social media, etc.) if they include: (1) a description of the search criteria; (2) the name of the awarding organization (which is not always the same as the name of the award ); and (3) the disclaimer, “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.”
(A full copy of Opinion 48 can be found here.)
In Opinion 48, the Committee noted that it has reviewed more than 53 different comparative awards under this standard. Although the Committee did not say as much, very few of these have satisfied Step 1. Super Lawyers, Best Lawyers, and Martindale-Hubbell definitely do, but even these must also satisfy Step 2. This is where most attorney advertising goes wrong.
If you tout your inclusion on one of these lists, then you have to include the information required under Step 2 “in close proximity” to your reference to the awards. Only the selection methodology can be presented by reference to a hyperlink. Everything else has to be on the same page in close proximity to the advertisement. This applies on social media posts and even if you only include a “badge” or logo of the comparative award on your website or, as some people do, in your email signature block. And, you cannot claim that you are “a Super Lawyer” or “one of the Best Lawyers.” Instead, you can only say that you were “included in the list called ‘Super Lawyers,’ ‘Best Lawyers,’ or ‘Top-Rated Lawyers.'”
In Opinion 48, the Committee also clarified certain awards it deems comparative and others it does not. “Leaders of the Bar” awards issued by legal publications are comparative, and the Committee concluded that the review process for these awards does not meet the requirements of Step 1. So lawyers cannot advertise these awards at all. But the Committee concluded that “Lawyer of the Year, Litigation Department of the Year, Lifetime Achievement, and similar awards issued by legal publications or legal organizations that focus on specific achievements of the lawyer during the past year or during the lawyer’s lifetime” are not comparative. So lawyers are free to advertise about these awards.
Finally, the lawyer award field must be good business because it seems like new ones are popping up every day. If you are ever confused about whether an award is worth your time to consider, a good place to start is this list of awards compiled by Igor Ilyinsky, the founder of Firmwise. Then, as the Committee noted in Opinion 48, you can contact the Committee or the attorney ethics research assistance hotline for more information about whether an award satisfies RPC 7.1.