Caped Crusaders of the Courts

And now, a decision by the New Jersey Supreme Court gives these “Super Lawyers” — lawyers anointed “the best” by magazines and other publications — the power to advertise this bulletproof status to their potential clients.

The state’s top court last month reversed a two-year-old opinion by a committee of the court, which had said such advertising violates the state’s Rules of Professional Conduct for lawyers, which prohibit ads likely to create unjustified expectations.

But the high court, in its opinion issued Dec. 17, said banning “truthful, fact-based claims in lawful advertising could be ruled unconstitutional.”

The court essentially said inclusion in lists, such as Super Lawyers, can be touted in attorneys’ advertisements, as long as publications producing the lists clearly state the standards and qualifications used to develop them, and make sure the list is open to all members of the bar.

The ruling pertains to lists by publications such as New Jersey Monthly magazine, in Morristown, which puts out sections called Super Lawyers and Rising Stars, and Martindale-Hubbell, in New Providence, which puts out a nationwide publication called Pre-Eminent Lawyers.

The ruling was praised by Arnold Chait, who represented New Jersey Monthly for Morristown-based Vogel, Chait, Collins & Schneider. The magazine’s listing guides its readers when choosing attorneys, he said, to “help them be more intelligent when purchasing goods and services.”

Thomas R. Curtin, of Morristown-based Graham Curtin, who represented Martindale-Hubbell, agreed. The lists and ratings of lawyers are “a valuable tool for consumers,” Curtin said.

The issue, however, generates many interesting questions, said Rachel Engelstein, an attorney who did not participate in the case.

“When a state places an outright ban on certain types of speech, there’s bound to be constitutional issues,” said Engelstein, an attorney at Herrick, Feinstein in Newark, where she works on the firm’s best practices committee. “However, due to the nature of the legal profession, there is good cause to regulate advertising.”

For some, it was unclear how lawyers were selected to be on these lists, and there was speculation that lawyers whose firms advertise in the publications are more likely to be included.

“That was a conclusion some people drew,” Englestein said. “So the question becomes: Is it purely advertising? Or is it some sort of useful tool for the public they can use for selecting their lawyers? Obviously, the latter is the goal.”

Chait dismisses assertions that advertising influences the list.

“There’s no more an appearance of conflict than any other advertising in a magazine,” he said. “Do you think Good Housekeeping only rates products if they advertise in the magazine? Businesses are rated, colleges are rated, school districts are rated, architectural firms are rated. That’s what consumers want.

“You have to go by the credibility of the product,” he added. “This list, Super Lawyers, tries very hard to make the product credible, verifiable and reliable. Otherwise, no one would ever be interested in it.”

In striking down the advertising ban, the court asked three Supreme Court committees to revise the professional rules of conduct for attorneys, and require the lists to clearly state qualifications for inclusion.

“If those types of disclaimers and information are provided, the less of a chance that advertising can be misleading” Engelstein said.