In what is a big game changer for the way in which law firms in New Jersey display awards and rankings such as “AV Preeminent,” “BV Distinguished,” “Super Lawyers,” “Rising Stars,” “Best Lawyers,” “Top Lawyer,” “Top Law Firm,” “Superior Attorney,” “Leading Lawyer,” “Top-Rated Counsel,” numerical ratings and the like, the Supreme Court of New Jersey issued a notice to the bar on May 6 setting forth new guidelines for referencing awards, honors and accolades in attorney advertising.
Improper use of these terms and references in advertising is a violation of the Ethics Rules and can subject an attorney to disciplinary proceedings. Here is the link to the notice:
Notice – Supreme Court Committee on Attorney Advertising Reminder: Advertising Awards, Honors, and Accolades that Compare a Lawyer’s Services to Other Lawyers’ Services (njcourts.gov)
The notice states that lawyers “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.
Further, whenever permissible references to comparative awards, honors, and accolades are made, Rule of Professional Conduct 7.1 requires that additional language be displayed to provide explanation and context.”
The notice goes on to say that a lawyer who seeks to advertise the receipt of an award, honor, or accolade that compares the lawyer’s services to other lawyers’ services must first ascertain whether the organization conferring the award has made “inquiry into the attorney’s fitness.”
This inquiry into the lawyer’s fitness must be more rigorous than a survey or a simple tally of the lawyer’s years of practice and lack of disciplinary history. Pursuant to Rule of Professional Conduct 7.1(a)(3)(ii), the basis for the comparison must be substantiated, bona fide, and verifiable.
You should of course have your ethics counsel/general counsel review this document before taking any action, but in reviewing it with some of my New Jersey-based clients, we determined the following:
- Firms should add the following disclaimers to these types of award items: “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.” I put this line of text on the web site news item at the end in italics.
- The NJ Supreme Court is not a fan of awards that seem like “popularity contests” – so those where the lawyer “wins” the award when enough people email, telephone, or text their vote, or awards issued for a price or as a “reward” for joining an organization, as well as any that are generated based in large part on the participation of the lawyer with the conferring organization’s website. For example, a lawyer can enhance his or her “rating” with the organization by endorsing other lawyers, becoming endorsed in return, responding to questions from the public about legal matters on the organization’s website, and the like.
- The notice goes on to say that “Factors such as the payment of money for the issuance of the award; membership in the organization that will issue the award; and a level of participation on the organization’s Internet website render such awards suspect. 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.
- You now must include additional information when referring to an award like this in attorney advertising, whether that advertising be a website, law firm letterhead,
lawyer email signature block, or other form of communication. First, you must provide a description of the standard or methodology on which the award, honor, or accolade is based, either in the advertising itself or by reference to a “convenient, publicly available source.” So for example with Super Lawyers, include a link to this page.
- You must include the name of the comparing organization that issued the award (note that the name of the organization is often different from the name of the award or the name of the magazine in which the award results were published).
- All of this additional accompanying language must be presented in proximity to the reference to the award, honor or accolade.
- When the name of an award, honor or accolade contains a superlative, such as “preeminent,” “distinguished,” “super,” “best,” “top,” “superior,” “leading,” “top-rated,” or the like, the advertising must state only that the lawyer was included in the list with that name, and not suggest that the lawyer has that attribute. Hence, a lawyer may state that he or she was included in the list called “Super Lawyers” or “The Best Lawyers in America,” and must not describe the lawyer as being a “Super Lawyer” or the “Best Lawyer.”
The notice gives an example of how a citation of an award should look – take particular note:
Jane Doe was selected to 2021 list of AV Preeminent lawyers. This award is conferred by Martindale-Hubbell. A description of the selection methodology can be found at www.martindale.com/ratings-and-reviews. No aspect of this advertisement has been approved by the Supreme Court of New Jersey.
I have a feeling other states are going to follow suit with this so keep it in mind as it shakes out to other states.