91-08: Advertising; Law Lists

3/1991

SUPERSEDED BY ETHICS OPINION 05-03

Attorney advertising that he is listed in The Best Lawyers in America or in Who's Who in American Law.

FACTS

The inquiring attorney intends to place an advertisement in the Yellow Pages. In it, he wishes to recite that his name is listed in a book entitled The Best Lawyers in America. He also wishes to know if it is ethically permissible to include in a Yellow Pages advertisement the fact that a lawyer is listed in Who's Who in American Law.

QUESTION

Is it ethically permissible for an Arizona lawyer to recite in a Yellow Pages advertisement that he or she is listed in The Best Lawyers in America or Who's Who in American Law?

ETHICAL RULE INVOLVED

ER 7.1. Communications Concerning a Lawyer's Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

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OPINION

In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L. Ed. 2d 810 (1977), the United States Supreme Court held that lawyer advertising may not be subjected to blanket suppression. The Court stated, however, that:

In holding that advertising by attorneys may not be subjected to blanket suppression, and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way.

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...because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising. For example, advertising claims as to the quality of services--a matter we do not address today--are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction.... (emphasis added)

97 S.Ct. at 2708-2709.

In In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L. Ed. 2d 64 (1982), the court held that, "when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely."

The Arizona Supreme Court has adopted verbatim ER 7.1(c) of the A.B.A. Model Rules of Professional Conduct, which states in part that:

... A communication is false or misleading if it:

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(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated. (emphasis added)

Unless a claim of quality can be factually substantiated, it is prohibited.

In Bishop v. Committee on Professional Ethics, 521 F. Supp. 1219 (S.D. Iowa 1981), vacated as moot, 686 F.2d 1278 (8th Cir. 1982), the court held that the state had an interest in regulating claims of quality and that superlative claims, such as "exceptional quality legal services" and "the best legal services in town" can properly be prohibited. 521 F. Supp. at 1225.

The governmental interest in precluding any possible misleading content in lawyer advertising is clearly substantial, and any claim of quality, even a restrained one, has some potential to be misleading, especially because not every lawyer in fact offers quality legal services. A total prohibition on any claims of quality directly advances the governmental interest, and is not more extensive than is necessary to serve that interest. See Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, supra, 447 U.S. at 566, 100 S.Ct. at 2351.

The prohibition against any claim of quality does not violate plaintiff's First Amendment right of commercial speech.

Id. See also District of Columbia Bar Ethics Opinion 142 (12/11/84) (ABA/BNA Lawyers' Manual on Professional Conduct, Vol. 1, No. 32, pp. 703-704, April 3, 1985, issue) (firm may not state that it is the "leading firm" in a particular area of law since it cannot be verified and it implies that the firm provides higher quality legal services than any other firm); Rule 7.1(a)(3) of the Delaware Rules of Professional Conduct (I National Reporter on Legal Ethics and Professional Responsibility (1986), page DE: Rules: 70) (advertising may not contain any statement about the quality of lawyers' services offered such as "best," "excellent," "better," "experienced," or the like); Florida Bar v. Curry, 211 So. 2d 169 (Fla. 1968) (lawyer who sent prospective clients a letter telling them that other Florida lawyers had been giving poor and costly services and that he could do a better job suspended for six months); Alabama State Bar General Counsel's Opinion 88-58 (9/17/88) (ABA/BNA Lawyers' Manual, supra, p. 901:1043) (proposed television advertisements referring to lawyer's "experience with product liability cases" and "experience with insurance claims" violates ethics rule about comparing quality of lawyer's services with those of other lawyers because the term "experience" is a subjective standard).

In Spencer v. Honorable Justices of the Supreme Court of Pennsylvania, 579 F. Supp. 880 (E.D. Pa. 1984), affirmed 760 F.2d 261 (3rd Cir. 1985), the court held that the state had a substantial interest in protecting the public against statements about the quality of legal services. Id. at 887. It held that subjective terms such as "experienced,” "expert," "highly qualified," or "competent" are difficult to verify and may be prohibited. In addition, the court concluded that objective, verifiable information conveying experience, number of cases tried, or number of years in practice are permitted. Id. at 887-888. See also Pennsylvania Bar Ethics Opinion 85-170 (11/27/85) (ABA/BNA Lawyers' Manual, supra, pp.801:7302-801:7303) (subjective terms such as "experienced," "expert," "highly qualified" or "competent" are inherently misleading and their use is not permitted in lawyer advertising; only objective, verifiable information is permitted).

The United States Supreme Court has also emphasized the distinction between subjective statements of opinion or quality and statements of objective facts that may support an inference of quality. In Peel v. Attorney Registration and Disciplinary Commission of Illinois, ____ U.S.____, 110 S. Ct. 2281, ____ L. Ed. 2d ____ (1990), the Court held that lawyer Peel was entitled to state on his letterhead that he was certified as a civil trial specialist by the National Board of Trial Advocacy. The Court reasoned:

In evaluating petitioner's claim of certification, the Illinois Supreme Court focused not on its facial accuracy, but on its implied claim "as to the quality of [petitioner's] legal services," and concluded that such a qualitative claim "'might be so likely to mislead as to warrant restriction.’” 126 Ill.2d at 406, 128 Ill. Dec., at 540, 534 N.E.2d at 984 (quoting In re R.M.J., 455 U.S., at 201, 102 S.Ct., at 936). This analysis confuses the distinction between statements of opinion or quality and statements of objective facts that may support an inference of quality. A lawyer's certification by NBTA is a verifiable fact, as are the predicate requirements for that certification. Measures of trial experience and hours of continuing education, like information about what schools the lawyer attended or his or her bar activities, are facts about a lawyer's training and practice. A claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, cf. In re R.M.J., 455 U.S., at 201, n. 14, 102 S.Ct., at 936, n. 14, but is simply a fact, albeit one with multiple predicates, from which a consumer may or may not draw an inference of the likely quality of an attorney's work in a given area of practice.

110 S.Ct. at 2288 (emphasis added).

In Peel, the Court reviewed the standards applied by the certifying organization before holding that advertising the certification was protected speech.

A lawyer's truthful statement that "XYZ Board" has "certified" him as a "specialist in admiralty law" would not necessarily be entitled to First Amendment protection if the certification was a sham. States can require an attorney who advertises "XYZ certification" to demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law.

110 S.Ct. at 2282 (emphasis added).

The introduction to The Best Lawyers in America by Steven Naifeh and Gregory White Smith, published by Woodward/White, Inc., (2nd ed., 1987) reads, in part:

We placed calls to most of the lawyers listed and asked them to nominate the most outstanding attorneys in their area in their specialty. We did not attempt to articulate the criteria for judging professional excellence; we left that to the individual attorney... (Id. at x)

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Even with all these efforts, the current lists continue to represent largely subjective judgments--if not ours, then those of the lawyers we surveyed--and, like any subjective assessments, they are vulnerable to criticism. In the interest of honesty and by way of disclaimer, we should note that the lists may tend to reward visibility or popularity over sheer ability ... In addition, lawyers with agreeable personalities are more likely to be nominated than lawyers who may offend their fellow lawyers while satisfying their clients. (Id. at xii)

A listing in The Best Lawyers in America is admittedly based on subjective judgments gained through telephone surveys of other lawyers. The predicate requirements for listing are admittedly not objective, verifiable, consistently applied or even expressed anywhere. The fact that an attorney is listed in the publication is verifiable, but that the same attorney is among the "best" lawyers in America is not.

The word "best" is by definition a term of comparison. A lawyer who advertises in the Yellow Pages or anywhere else that he is among "the best lawyers in America" is by definition comparing his services to other lawyers' services. Without more, such a comparison could not be factually substantiated. This is expressly prohibited by ER 7.1(c). A lawyer cannot circumvent this prohibition by utilizing an advertisement in which the comparison is made by a third party. Advertising such a listing, without more, is misleading under ER 7.1(c) and is therefore not permitted.

The Preface to Who's Who in American Law states that a Board of Advisors nominates individuals based on "position of responsibility" or "noteworthy achievement." The biographees then furnish their own data. (Id. at vi) The predicate requirements for listing are similar to the predicate requirements for listing in The Best Lawyers in America. That is, they are not objectively verifiable or consistently applied. They are not like the certification requirements at issue in Peel.

A lawyer who advertises that he or she is listed in Who's Who in American Law is obviously trying to convey the message that he or she is among a select group. He or she is trying to convey the message that the quality of his or her services is superior to the quality of other lawyers' services. Without more, such a comparison cannot be factually substantiated and is prohibited by ER 7.1(c).

In conclusion, advertising by a lawyer that he or she is listed in The Best Lawyers in America or Who's Who in American Law is a quality claim. The fact that the lawyer is listed in such publications is factually verifiable but that his or her services are superior to other lawyers' services is not. Therefore, such advertising violates ER 7.1(c).

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.