Advertising Inclusion in List in North Carolina Super Lawyers and Other Similar Publications
Adopted: January 25, 2008
Opinion rules a lawyer may advertise the lawyer's inclusion in the list of lawyers in North Carolina Super Lawyers and other similar publications and may advertise in such publications subject to certain conditions.
Editor’s Note: 2007 Formal Ethics Opinion 14 was originally adopted on January 25, 2008. On October 25, 2019, the State Bar Council withdrew 2007 FEO 14 upon its adoption of 2018 FEO 8.
Inquiry #1:
North Carolina Super Lawyers is a listing of lawyers published by Key Professional Media, Inc., a for-profit corporation, as a special advertising supplement in North Carolina newspapers and city and regional magazines. It is also published as a magazine and distributed to all active members of the State Bar, corporate counsel of Russell 3000 companies, and libraries of ABA-approved North Carolina law schools.
The selection process for inclusion in an edition of North Carolina Super Lawyers is described on the Super Lawyers website (www.superlawyers.com/about/opinion_39.html) as a "very thorough quantitative and qualitative selection process" that is based upon three steps: creation of the candidate pool, evaluation of the lawyers in the pool, and peer evaluation by practice area. The process, as described on the website and in the advertising supplements and the magazine, involves the following activities and includes the following standards:
- An annual ballot to all active lawyers in North Carolina who are licensed for five years or more with procedures and systems to detect and manage manipulation attempts.
- An annual search during which Law & Politics, a division of Key Professional Media, Inc., seeks out candidates who should be considered but have not been identified through the balloting process. This search includes the use of professional databases and sources, the review of local and national legal journals, and interviews with managing partners and marketing directors of law firms in North Carolina.
- Law & Politics examines the background and experience of each candidate, searching for evidence of peer recognition and professional achievement.
- Candidates are grouped by primary area of practice and reviewed by lawyers with demonstrated expertise in the relevant practice areas.
- Research by Law & Politics during which each candidate is scored on a 12-point evaluation of peer recognition and professional achievement.
- Lawyers selected for inclusion in Super Lawyers are checked for their standing with the bar, including verification that they are not subject to disciplinary proceedings, criminal prosecution, or other legal action that reflects adversely on fitness.
- Lawyers cannot pay to be selected for inclusion in Super Lawyers; they cannot vote for themselves; and they cannot pay to be editorially featured.
- Lawyers are not included or excluded depending upon whether they advertise in Super Lawyers. Every lawyer named in the Super Lawyers list receives a free listing in the Super Lawyers advertising supplement or magazine.
- Inclusion in a Super Lawyers list is limited to the top five percent of the active members of the State Bar based upon points awarded pursuant to the process described above.
The Super Lawyers website also explains the "advertising opportunities" that are available in Super Lawyers advertising supplements or magazines. There are two "profile" options for advertising in the supplement or the magazine. A standard profile is a one-ninth of a page advertisement that includes a color photo, contact information, and 100-word biography for the profiled lawyer. A platinum profile is a full or half-page advertisement that focuses on an individual lawyer or all lawyers chosen for the Super Lawyers list from a law firm. It also includes a color photo, contact information, and biographies of the profiled lawyers. In the alphabetical listing in the supplement or magazine, the names of lawyers who have purchased a "profile" advertisement are listed in red boldface type instead of the black type used for the other lawyers on the list.
In addition to the profiles, a lawyer or law firm may purchase a display advertisement within and adjacent to the Super Lawyers listing in the supplement or magazine. These display advertisements may be full, half, or quarter-page advertisements. Usually a display advertisement purchased by a law firm congratulates the lawyers with the firm who are included in the Super Lawyers list.
May North Carolina lawyers listed in North Carolina Super Lawyers, or other similar publications with titles that imply that the lawyers listed in the publication are "super." "the best." "elite." or a similar designation, advertise or publicize that fact?
Opinion #1:
Yes, subject to certain conditions.
Rule 7.1(a) prohibits a lawyer from making false or misleading communications about himself or his services. The rule defines a false or misleading communication as a communication that contains a material misrepresentation or fact of law or omits a necessary fact; one that is likely to create an unjustified expectation about results the lawyer can achieve; or one that compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated. The question is whether advertising one's inclusion in the Super Lawyers list is a material misrepresentation because the term "super" creates the unjustified expectation that the lawyer can achieve results that an ordinary lawyer cannot or, by implying superiority, compares lawyer's services with the services of other "inferior" lawyers without factual substantiation.
Rule 7.1 derives from a long line of Supreme Court cases holding that lawyer advertising is commercial speech that is protected by the First Amendment and subject to limited state regulation. In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Supreme Court first declared that First Amendment protection extends to lawyer advertising as a form of commercial speech. The Court held that a state may not constitutionally prohibit a lawyer's advertisement for fees for routine legal services although it may prohibit commercial expression that is false, deceptive, or misleading and may impose reasonable restrictions as to time, place, and manner. Subsequent Supreme Court opinions clarified that the commercial speech doctrine set forth in Central Hudson Gas & Electric Corporation v. Public Service Commission of N.Y., 447 U.S. 557 (1980) is applicable to lawyer advertising. See In re R.M.J., 455 U.S. 191 (1982). Specifically, a state may absolutely prohibit inherently misleading speech or speech that has been proven to be misleading; however, other restrictions are appropriate only where they serve a substantial state interest, directly advance that interest, and are no more restrictive than reasonably necessary to serve that interest.
Seventeen years after Bates, in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990), a plurality of the Supreme Court concluded that a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his certification as a trial specialist by the National Board of Trial Advocacy (NBTA). The Court found NBTA to be a "bona fide organization," with "objectively clear" standards, which had made inquiry into Peel's fitness for certification and which had not "issued certificates indiscriminately for a price." Id. at 102, 110. If a state is concerned that a lawyer's claim to certification may be a sham, the state can require the lawyer "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." Id. at 109. In concluding that the NBTA certification advertised by Peel in his letterhead was neither actually nor potentially misleading, the Court emphasized "the principle that disclosure of truthful, relevant information is more likely to make a positive contribution to decision-making than is concealment of such information." Id. at 108.
Ibanez v. Florida Department of Business and Professional Regulation, Board of Accountancy, 512 U.S. 136 (1994), similarly held that a state may not prohibit a CPA from advertising her credential as a "Certified Financial Planner" (CFP) where that designation was obtained from a private organization. As in Peel, the Court found that a state may not ban statements that are not actually or inherently misleading such as a statement of certification, including the CFP designation, by a "bona fide organization." Id. at 145. The Court dismissed concerns that a consumer will be mislead because he or she cannot verify the accuracy or value of the designation by observing that a consumer may call the CFP Board of Standards to obtain this information. Id.
In 2003 FEO 3, the Ethics Committee considered whether a lawyer may advertise that he or she is a member of an organization with a self-laudatory title such as the "Million Dollar Advocates Forum." The opinion rules that a lawyer may advertise such membership but, to avoid a misleading communication, the following conditions must be satisfied:
1) the organization has strict, objective standards for admission that are verifiable and would be recognized by a reasonable lawyer as establishing a legitimate basis for determining whether the lawyer has the knowledge, skill, experience, or expertise indicated by the designated membership;
2) the standards for membership are explained in the advertisement or information on how to obtain the membership standards is provided in the advertisement;
3) the organization has no financial interest in promoting the particular lawyer; and
4) the organization charges the lawyer only reasonable membership fees.
Super Lawyers appears to be a bona fide organization, as described in Peel and Ibanez, in that it has objectively clear and consistently applied standards for inclusion in its lists and inclusion is available to all lawyers who meet the standards. For example, all active North Carolina lawyers who are licensed for five years or more are eligible for inclusion and inclusion is limited to the top five percent of eligible lawyers based upon an objective point system.
As observed by the Supreme Court in Peel, Peel's advertisement of his certification by NBTA "is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, 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." Peel, 496 U.S. at 101. Similarly, advertising inclusion in the Super Lawyers list is not an opinion on the quality of a listed lawyer's work or a promise of success, it is information from which a consumer may draw inferences based upon the standards for inclusion in the list. The Ethics Committee therefore concludes that an advertisement that states that a lawyer is included in a listing in North Carolina Super Lawyers, or in a similar listing in another publication, is not misleading or deceptive provided the relevant conditions from 2003 FEO 3 are satisfied; to wit:
1) the publication has strict, objective standards for inclusion in the listing that are verifiable and would be recognized by a reasonable lawyer as establishing a legitimate basis for determining whether the lawyer has the knowledge, skill, experience, or expertise indicated by the listing;
2) the standards for inclusion are explained in the advertisement or information on how to obtain the standards is provided in the advertisement (referral to the publication's website is adequate if the standards are published therein); and
3) no compensation is paid by the lawyer, or the lawyer's firm, for inclusion in the listing.
In addition, the advertisement must make clear that the lawyer is included in a listing that appears in a publication which is identified (by using a distinctive typeface or italics) and may not simply state that the lawyer is a "Super Lawyer." A statement that the lawyer is a "Super Lawyer," without more, implies superiority to other lawyers and is an unsubstantiated comparison prohibited by Rule 7.1(a). Finally, since a new listing is included in each annual edition of the Super Lawyers supplement and magazine (and, it is presumed, in other similar publications), the advertisement must indicate the year in which the lawyer was included in the list.
Inquiry #2:
May a North Carolina lawyer purchase a profile or display advertisement in a North Carolina Super Lawyers advertising supplement or magazine or in other similar publications?
Opinion #2:
Yes, subject to the conditions set forth in Opinion #1. If the standards for inclusion in the listing are published in the supplement or the magazine, the advertisement does not have to include information on how to obtain the standards.
Inquiry #3:
May a North Carolina lawyer participate in the selection process for the lawyers who are included in such publications?
Opinion #3:
Yes, provided the lawyer's recommendations and evaluations of other lawyers are founded on knowledge and experience of the other lawyers, truthful, and not provided in exchange for a recommendation from another lawyer.