On July 24, 2006, the Supreme Court Committee on Attorney Advertising (Committee) issued Opinion 39, which concluded that "advertisements describing attorneys as `Super Lawyers,' `Best Lawyers in America,' or similar comparative titles, violate the prohibition against advertisements that are inherently comparative in nature, RPC 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2)." Opinion 39 of the Sup. Ct. Comm. on Attorney Adver., 185 N.J.L.J. 360, 15 N.J. Lawyer 1549 (July 24, 2006). For the reasons that follow, we vacate Opinion 39 and we refer the matter jointly to the Advisory Committee on Attorney Advertising, the Advisory Committee on Professional Ethics, and the Professional Responsibility Rules Committee for expedited rulemaking proceedings.
By a letter dated May 19, 2005, and supplemented by letters dated June 21, July 13, and November 16, 2005, Lloyd D. Levenson, a member of the New Jersey Bar, brought to the attention of the Committee a magazine titled "New Jersey Super Lawyers." According to the inquirer, that "document [was] designed to be circulated amongst clients and potential clients, in order to create the impression that the attorneys designated `Super Lawyers,' and particularly those featured in lead articles, are more qualified than other attorneys in the State of New Jersey." The inquirer asserted that the process of being designated and advertised as a "Super Lawyer" (1) violates the Committee's Opinion 15, which prohibits the use of testimonials "unless the statement has been uttered by an actual named client who has received the lawyer's services[;]" (2) violates RPC 7.1(a)(2), which prohibits advertising statements "likely to create an unjustified expectation about results[;]" (3) violates RPC 7.2(a), which requires that "[a]ll [attorney] advertising shall be predominantly informational[;]" (4) subverts the attorney certification provisions of Rule 1.39, R. 1:39-1 to -9; and (5) violates RPC 7.1(a)(3), which provides that an advertising "communication is false or misleading if it ... compares the lawyer's service with other lawyers' services[.]"
Similarly, by an e-mail dated January 10, 2006, and addressed to the members of the Committee, George J. Kenny, also of the New Jersey Bar, sent copies of correspondence he had received from another law firm in the State, touting the inclusion of several of its members among "The Best Lawyers in America for 2005" and advising that the Committee was to "consider [him] the grievant[.]"
The Committee considered these matters and, on July 26, 2006, issued Opinion 39. That opinion concluded that "advertisements describing attorneys as `Super Lawyers,' `Best Lawyers in America,' or similar comparative titles, violate the prohibition against advertisements that are inherently comparative in nature, RPC 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2)." Opinion 39, 185 N.J.L.J. at 360, 15 N.J. Lawyer at 1549. Upon emergent application, Opinion 39 was stayed by Orders of this Court dated August 18, 2006 and September 6, 2006.
Petitions seeking review of Opinion 39 were filed in short order by three groups.
On June 18, 2008, after consideration of a voluminous record, the Special Master issued his 304-page report.
As a starting point, the Special Master canvassed the legal landscape in respect of the regulation of attorney advertising. Starting with Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), he concluded that "advertising by attorneys [is] a form of commercial speech protected by the First Amendment and may not be subjected to blanket suppression[.]" Report at 54. That said, the Special Master highlighted that "`[a]dvertising that is false, deceptive, or misleading of course is subject to restraint[,]'" noting, at the same time, that "`advertising claims as to the quality of services ... are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction.'" Id. at 54-55 (quoting Bates, supra, 433 U.S. at 383, 97 S.Ct. at 2709, 53 L.Ed.2d at 835).
Referencing precedent involving the constitutionality of a state regulatory ban on promotional advertising by a regulated utility, the Special Master set forth the test for assessing the constitutionality of the regulation of commercial speech:
The Special Master stated the applicable rule thusly: "`regulation — and the imposition of discipline — are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive.'" Id. at 59 (quoting In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64, 74 (1982)). He underscored that "`States may not place an absolute prohibition on certain types of potentially misleading information... if the information also may be presented in a way that is not deceptive[,]'" noting that "`the remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation.'" Ibid. (quoting In re R.M.J., supra, 455 U.S. at 203, 102 S.Ct. at 937, 71 L.Ed.2d at 74).
Based on In re R.M.J., the Report then distinguished between "attorney advertising that is `inherently' misleading and that which is `potentially' misleading[.]" Id. at 60. It explained that "misleading advertising may be prohibited entirely; however, if potentially misleading information can be presented in a manner that is not deceptive, an absolute prohibition is not permitted." Id. at 60-61. It concluded that "the requirement of a disclaimer or explanation is the preferable approach to attorney-advertising regulation that may otherwise be misleading, with any restrictions on attorney advertising being no broader than reasonably necessary to prevent deception." Id. at 61.
The Report noted that earlier decisional law then led to Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990), which addressed advertisements of attorney certification and differentiated between "`statements of opinion or quality and statements of objective facts that may support an inference of quality.'" Report at 70 (quoting Peel, supra, 496 U.S. at 101, 110 S.Ct. at 2288, 110 L.Ed.2d at 95). Once that distinction is drawn, a clear line of demarcation appears: "`if the certification had been issued by an organization that had made no inquiry into petitioner's fitness, or by one that issued certificates indiscriminately for a price, the statement, even if true, could be misleading.'" Report at 70-71 (quoting Peel, supra, 496 U.S. at 101, 110 S.Ct. at 2288, 110 L.Ed.2d at 95). The Report then defined the logical quandary as follows:
This analysis also finds expression within this Court's own jurisprudence, as the Report noted. Citing In re Felmeister & Isaacs, 104 N.J. 515, 518 A.2d 188 (1986), the Report explained that this Court, at least implicitly, has adopted the Central Hudson test for determining whether commercial speech is protected. Report at 61-62 (quoting Felmeister, supra, 104 N.J. at 532, 518 A.2d 188). The Report emphasized that, in New Jersey, "the public interest would be better served by a ... rule requiring that all attorney advertising be
Applying the Felmeister analysis, the Report explained that "the content of the advertisement should be related to criteria that would assist the consumer in his or her selection of an attorney," and that "of principal importance to a consumer seeking legal services should be the performance of attorneys and the quality of the services they render." Id. at 66. In that context, the Report summed up "the issue here [as] whether the type of quality information most needed by consumers can be conveyed through attorney advertising, while at the same time not being misleading or deceptive to the public." Id. at 68.
The Report then focused directly on New Jersey's rule of professional responsibility governing attorney advertising, RPC 7.1, which provides as follows:
The Report then compared RPC 7.1 with the model rule promulgated by the American Bar Association (Report at 77-81), those jurisdictions that have adopted the use of disclaimers in lieu of a per se ban (Report at 82-83), and RPC 7.1's counterparts in Arizona (Report at 90-96), Virginia (Report at 96-101), Michigan (Report at 101-07), Iowa (Report at 107-11), Connecticut (Report at 111-25), North Carolina (Report at 125-29), Tennessee (Report at 129-30), Delaware (Report at 130-36), Pennsylvania (Report at 136-40), and New York (Report at 140-48).
From that comparative analysis, the Report concluded that
The remainder of the Report is dedicated to an analysis of the methodologies used to rate lawyers either as "Super Lawyers" (Report at 150-224) or "Best Lawyers in America" (Report at 224-50), or as rated lawyers by Martindale-Hubbell (Report at 250-68). The Report also summarized the expert reports received (Report at 268-87), and the opposing briefs of amicus curiae the Federal Trade Commission and the Supreme Court Board on Attorney Certification (Report at 287-93).
The Report concluded that
It recommended what it describes as twelve "regulatory components ... extracted from [the advertising decisions of other states] to provide some guidance
Five sets of written comments on the Special Master's Report were submitted; they claim as follows:
Key Professional Media, Inc. (also "Super Lawyers") claims that "Super Lawyers" provides valuable information to consumers and is not misleading. It asserts that Opinion 39 violates an attorney's right to advertise bona fide third-party accolades. It urges that, if some regulation is permissible, disclosures or disclaimers nevertheless should not be required. It concludes by asserting that Opinion 39 impermissibly burdens or dictates editorial content.
Woodward-White, Inc. ("The Best Lawyers in America") notes that Opinion 39 correctly observes that a blanket ban on advertising is unconstitutional. That said, it accuses Opinion 39 of unfairly burdening "Best Lawyers" while ignoring other attorney rating entities. It claims that Opinion 39 failed to demonstrate that the "Best Lawyers" advertisements "created an unjustified expectation about results a lawyer can achieve" and that Opinion 39's interpretation of RPC 7.1(a)(3) cannot stand as it is an unconstitutional prohibition of commercial speech. It closes by asserting that the imposition of "regulatory components" on any attorney advertising must be narrowly tailored.
LexisNexis, a division of Reed Elsevier, Inc. ("Martindale-Hubbell"), observes that its methodology was approved by the Report and, hence, it is not adversely affected by it. It notes, however, that to the extent RPC 7.1 must be amended, its restrictions should extend only as far as prohibiting false and misleading advertising.
The Attorney General, as counsel to the Committee, submitted nine comments in respect of both the Report and in response to the above referenced comments by the parties and intervenors. According to the Attorney General, (1) the Report does not conclude that the Committee misinterpreted RPC 7.1; (2) the issue before the Court is limited to whether the designations addressed by the Committee — whether a lawyer is a "Super Lawyer" or a "Best Lawyer" — are misleading, and not whether any system of attorney ranking or rating is misleading; (3) given the uniqueness of New Jersey's RPC 7.1, reference to similar rules elsewhere is neither dispositive nor helpful; (4) the criticism that "Super Lawyers" or "Best Lawyers" have been singled out for disparate treatment is incorrect; (5) the Report failed to properly weigh the expert opinion tendered by and relied on by the Committee; (6) the Report fails to set forth the criteria used to gauge the ratings systems used by "Super Lawyers," "Best Lawyers," and Martindale-Hubbell and, hence, there is no factual basis to support any conclusions thereon; (7) the mere fact that "Super Lawyers" and "Best Lawyers" allow only those so selected to advertise that designation for a fee is in and of itself misleading as it is the equivalent of indiscriminately selling certifications; (8) the advertisements concerning "Super Lawyers" and "Best Lawyers" designations that precede Opinion 39 are the best evidence of the ills those designations
We have reviewed the Report and the submissions of all parties, intervenors and amici, and we concur with the Special Master's analysis and conclusion that "state bans on truthful, fact-based claims in lawful professional advertising could be ruled unconstitutional when the state fails to establish that the regulated claims are actually or inherently misleading and would thus be unprotected by the First Amendment commercial speech doctrine." Report at 149. That conclusion mandates that Opinion 39 be vacated, as it does not provide the carefully nuanced analysis that informs the Special Master's Report.
That said, we acknowledge that Opinion 39's shortcomings are the inevitable result of the plain language of RPC 7.1(a)(3) (prohibiting comparative advertising statements) and, to a lesser extent, RPC 7.1(a)(2) (prohibiting advertising "likely to create an unjustified expectation about results"). Indeed, we are persuaded that the standards set forth in the RPCs require review and, at least in respect of RPC 7.1(a)(3), modification both because of the constitutional concerns identified in the Report and in light of the emerging trends in attorney advertising. This process is no simple task, and it is one that does not lend itself to the present adversary/adjudicatory posture of this matter. Because this question is addressed best within the context of this Court's administrative functions, we refer RPC 7.1(a)(2) and (3) to the Advisory Committee on Attorney Advertising, the Advisory Committee on Professional Ethics and the Professional Responsibility Rules Committee for their concurrent consideration of a redrafted Rule that will take into account the policy concerns expressed by the Rule while, at the same time, respecting legitimate commercial speech activities. That balance must be struck in light of the analyses and recommendations presented in the Report, together with such other sources and information as the Committees, acting jointly, may deem necessary and proper.
Opinion 39 of the Supreme Court Advisory Committee on Attorney Advertising hereby is vacated. Consideration of proposed amendments or modifications to RPC 7.1(a)(2) and/or (3) hereby is referred jointly to the Advisory Committee on Attorney Advertising, the Advisory Committee on Professional Ethics, and the Professional Responsibility Rules Committee for expedited proceedings based on the principles outlined in the Special Master's Report and to which we have adverted. Any new challenge to the attorney advertising addressed in Opinion 39 must await the completion of that administrative process and the adoption of a new or amended Rule.
For vacation and remandment — Justices LaVECCHIA, WALLACE, RIVERA-SOTO, HOENS, and SKILLMAN (t/a) — 5.
Opposed — None.