The marketplace for legal services is crowded, and it's understandable that lawyers want to distinguish themselves from their peers. Websites and companies that offer accolades, ratings and reviews often encourage lawyers to reference their recognition or ratings when advertising. The inclusion can help the lawyer stand apart from other lawyers who don't provide similar information, while also helping the company that is offering the recognition or rating promote itself both to other lawyers and as a measure of a lawyer's qualifications.
The problem is, many companies that profile lawyers, offer accolades or reviews don't select lawyers based upon an actual review of the lawyer's qualifications or competence, nor are the ratings they provide necessarily a good measure of the quality of a lawyer's legal services. While a company offering lawyer reviews may be able to protect itself by claiming that its reviews are simply an opinion, not an endorsement of the lawyer or guarantee of good service, legal advertising is subject to ethical restrictions designed to prevent lawyers from misleading the public. Before including an honor or rating in its marketing, lawyers and law firms must consider their states' rules of professional conduct.
At the heart of the regulation of lawyer advertising is the concern that the inclusion of misleading information within marketing materials will mislead prospective clients. When a prospective client sees a lawyer advertisement or website that describes an honor or indicates that a lawyer is highly rated, the prospective client is likely to view those accolades as evidence of quality, competence and achievement. Prospective clients deserve to be protected from being misled by accolades and ratings that are granted in full or in part for other reasons, such as the payment of a fee or making of a donation or for simply joining an organization. They should be reasonably alerted to the methodology of a ratings system that can boost a lawyer's rating based upon factors or activities that have nothing to do with competence or quality, such as endorsing other lawyers who participate in the service, answering questions on the organization's website, or merely adding information to their profile on the website.
Although attorney ratings are not new, the proliferation of websites that offer attorney ratings in the form of stars or a seemingly objective numerical rankings is a relatively new phenomenon. Most states have not fully addressed the issue of how their ratings may be properly used in legal marketing materials. Similarly, companies have granted honors and accolades to lawyers for many years, but the standards under which a lawyer may receive recognition from such a company can be opaque. Sometimes the key to receiving a good rating or honor is to help the company providing the rating or honor to promote itself to other lawyers or to the public. Sometimes it's simply a matter of paying a fee.
New Jersey's Rules
The New Jersey Supreme Court's Committee on Attorney Advertising has issued a warning to lawyers,1 advising them to be careful when mentioning awards, honors, accolades and comparisons to other lawyers in their advertising:
The Supreme Court Committee on Attorney Advertising has received numerous grievances regarding attorney advertising of awards, honors, and accolades that compare a lawyer's services to other lawyers' services. Examples of such awards, honors, and accolades are: "Super Lawyers," "Rising Stars," Best Lawyers," "Superior Attorney," "Leading Lawyer,""Top-Rated Counsel,"numerical ratings, and the like. The Committee issues this Notice to the Bar to remind lawyers that they 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.
The committee advised lawyers to take specific steps before including an accolade or review in their advertising:
Verify the Basis of the Award - The attorney must ascertain whether the organization that has made an award had made an actual inquiry into the attorney's fitness. Under New Jersey's rules, a rating or certifying methodology must include inquiry into the lawyer's qualifications and must do more than simply tally the lawyer's years of practice or lack of disciplinary history. The basis for the comparison must be substantiated, bona fide and verifiable.
Explain the Basis of the Award - When referencing an award, honor or accolade in lawyer marketing, the lawyer must also describe the standard or methodology upon which that recognition is based, either in the advertising itself or by reference to a convenient, publicly available source.
Identify the Organization Issuing the Award - As many awards and ratings are issued under a different name than the name of the company that issued or published the award or rating, the lawyer must identify the actual company that issued the award or rating.
Disclaimer - The lawyer must include a disclaimer in a readily discernible manner, and in proximity to the award, honor or accolade, "No aspect of this advertisement has been approved by the Supreme Court of New Jersey."
Presentation of Badges or Logos - when lawyer advertising presents a badge or logo from a comparative reward, honor or accolade, the lawyer must provide information about the methodology behind the recognition, the name of the issuing organization, and the required disclaimer in a discernible manner in proximity to the badge or logo. Except for the description of the standard or methodology behind the recognition, which can be presented by reference, all other information must appear on the face of the advertisement.
The Committee also provided guidance in relation to awards, honors or accolades that suggest that a lawyer offers quality legal services:
Further, when the name of an award, honor, or accolade contains a superlative, such as "super," "best," "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 Committee reminded lawyers that advertisements covered by its rule include all forms of attorney advertising, including a law firm's website, letterhead, lawyer email signature block, or other form of communication.
Referencing Honors, Ratings and Accolades in Other States
While lawyers must follow the rules of ethics of their own states, the New Jersey rules provide a reasonable set of guidelines and practices that can be applied in other states. It is reasonable that lawyers be expected to help prospective clients identify the source of an award, accolade or rating, and information about how a rating was calculated or why an honor was bestowed. Lawyers should recall that advertising rules apply to materials that are not ordinarily thought of as marketing materials. Lawyers should also take care that their marketing materials include all required disclaimers.
New Jersey's rule does not impose a very high requirement on lawyers, before they include a third party rating or honor in their marketing materials. By allowing evaluation criteria to be incorporated by reference to a website, arguably the rule does not go far enough. Certainly it is necessary to balance the rule between something that requires so much additional verbiage on a marketing piece that it becomes ineffective, or requiring a lawyer's letterhead to include that sort of detail, but most consumers are not going to navigate to the explanation of award or rating criteria and will instead reply upon the number or honor as presented in the lawyer's marketing materials.
When hiring a lawyer, consumers tend to focus on certain key factors, notably including,
Qualification - What are the lawyer's qualifications to practice within a particular field of law?
Experience - What experience does the lawyer have in the field for which the consumer requires legal services?
Past Performance - How well has the lawyer served clients in past cases?
Communication - How well does the lawyer communicate with clients and keep its clients informed of the status and progress of a case?
Yet one prominent publisher of lawyer ratings disclaims its ratings system, "[Our] ratings speak to a lawyer’s background, but do not evaluate their knowledge of the law, past performance on individual cases, personality, or communication skills". It is arguable that a rating system that declares lawyers to be "excellent" or "superb" without any consideration of the lawyer's knowledge of the law or past performance while representing clients is inherently misleading to consumers.
The rule for consumers who rely upon a lawyer's recitation of an honor, accolade, rating or review remains, caveat emptor, buyer beware.
1. Notice to the Bar - Attorney Advertising of Awards, Honors, and Accolades that Compare a Laywer's Services to Other Lawyers' Services -- a Reminder From the Committee on Attorney Advertising. May 4, 2016.