Advertising Inclusion in Self-Laudatory List or Organization
Adopted: October 25, 2019
Opinion rules that a lawyer may advertise the lawyer’s inclusion in a list or membership in an organization that bestows a laudatory designation on the lawyer subject to certain conditions.
Editor’s Note: 2007 FEO 14, Advertising Inclusion in List in North Carolina Super Lawyers and Other Similar Publications, was withdrawn by the State Bar Council on October 25, 2019 upon adoption by the Council of the opinion below.
Inquiry:
Numerous companies and organizations provide lawyers with the opportunity to be included in a list or to become members of a group that describes itself with self-laudatory terms and/or bestows self-provided accolades to its members. Examples of such lists or groups are those that describe their included lawyers as “best,” “super,” and “distinction.” Lawyers then advertise their inclusion in these groups or lists to consumers.
Do the Rules of Professional Conduct permit a lawyer to advertise their inclusion in such self-laudatory groups or lists?
Opinion:
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 of fact or 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.
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. Id. at 383-84. 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. Id. at 200-04.
Thirteen 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.
The question here is whether advertising one’s membership in a group or inclusion on a list of lawyers that implies that the lawyer is, for example, “best” or “super” or “distinguished” is misleading because the term creates the unjustified expectation that the lawyer can achieve results that an ordinary lawyer cannot or compares the lawyer’s services with the services of other lawyers without factual substantiation. When a potential consumer of legal services sees the words “super” or “distinguished” associated with a lawyer by way of a bestowed award or accolade purporting to pertain to legal services, the consumer may view these awards or accolades as evidence of a lawyer’s competence and achievement. Therefore, to avoid misleading consumers, a lawyer may advertise such accolades or inclusion in self-laudatory groups or lists only when certain conditions are met.
First, no compensation may be paid by the lawyer, or the lawyer's firm, for the award or accolade being bestowed upon the lawyer or for inclusion in the group or listing. Although a lawyer may pay the reasonable costs of advertisements as a result of inclusion, see Rule 7.2(b) and 2018 FEO 1, marketing or advertising fees that must be paid prior to the lawyer’s inclusion in the group or listing or the lawyer’s receipt of the accolade or award effectively become compensation required from the lawyer for inclusion or for the accolade. As such, the accolade, award, or inclusion is misleading in violation of Rule 7.1(a) because it is bestowed, at least in part, because of a lawyer’s willingness and ability to pay, and not for reasons that are objective, verifiable, and bona fide. After the award, accolade, or inclusion has been granted, a lawyer may pay the reasonable costs of advertisements concerning the inclusion. However, marketing or advertising fees charged by the self-laudatory group that serve as a barrier to the lawyer’s inclusion in the group or receipt of an accolade are not permissible.
Second, before advertising the inclusion or any award associated with inclusion, the lawyer must ascertain that the organization conferring the award is a bona fide organization that made adequate and individualized inquiry into the lawyer’s qualifications for the inclusion or award. The selection methodology must be based upon objective, verifiable, and consistently applied factors relating to a lawyer’s qualifications (including but not limited to a lawyer’s years of practice, types of experience, peer review, professional discipline record, publications and/or presentations, and client and other third-party testimonials) that 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.
Third, any advertisement by the lawyer of his inclusion in a self-laudatory group or list must also contain an explanation of the standards for inclusion or provide the consumer with information on how to obtain the inclusion standards. See Bates, 433 U.S. at 375. The explanation of the standards for inclusion – wherever located – must be such that a potential consumer of legal services can reasonably determine how much value to place in the lawyer’s inclusion in such group or list. Additionally, the advertisement must state only that the lawyer was included in the list, and not suggest that the lawyer has the attribute(s) conferred by the group or list. This requirement applies equally to groups or lists that contain a superlative in the name of the group or list itself, such as “super” or “best,” and groups or lists that do not contain superlatives in the name of the group or list but bestow such superlatives on its included lawyers through the group’s or list’s marketing materials (including its online presence). When the group or list inclusion may create unjustified expectations, such as the expectation that a lawyer obtains a high-dollar verdict in every case, the advertisement must also include a disclaimer providing notice that similar results are not guaranteed, and that each case is different and must be evaluated separately See 99 FEO 7, 2000 FEO 1, and 2003 FEO 3. Lastly, the advertisement must indicate the year(s) in which the lawyer received the award or was a member of the organization.
A lawyer must determine whether a particular group or list satisfies each of these requirements before advertising their inclusion in the group or list, and a lawyer has a continuing obligation to ensure the group or list remains compliant with the requirements of this opinion upon each renewal. If all requirements are met, the lawyer may advertise his inclusion in the group or list.