Saturday, October 8, 2022

Comparative awards must be verifiable - New Jersey Supreme Court - Advertising Committee

Supplementing Opinion 42: 
Rule of Professional Conduct 7.1(a)(3) – Honors, Awards, and Accolades that Compare Lawyers’ Services With Other Lawyers’ Services

The ethics rules governing advertising are intended to protect the public from statements that are false, deceptive, or misleading. Bates v. State Bar of Arizona, 433 U.S. 350, 383 (1977). Advertising that makes claims about the “quality of the legal services . . . are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction.” Id. at 383-84. 
When lawyers state that they are included on a list called “Top Attorneys,” for example, the lawyers are making a statement of fact – they were included on the list – but they are also making a statement that supports an inference about the quality of their legal services, that their services are “top” or better than other lawyers’ services. 
Such statements can be misleading. See Peel v. Attorney Registration and Disciplinary Comm’n of Illinois, 496 U.S. 91, 101 (1990) (advertising a lawyer certification issued by an organization that does not inquire into the lawyer’s fitness can be misleading). 

Accordingly, Rule of Professional Conduct 7.1(a)(3) prohibits lawyers from making comparative statements. When referring to an accolade or honor that compares lawyers, the factual basis for the comparison must be verifiable. RPC 7.1(a)(3)(ii). Further, the conferrer of the award must have made appropriate “inquiry into the fitness of the lawyer.” Official Comment to Rule of Professional Conduct 7.1. See also In re Opinion 39, 197 N.J. 66, 76 (2008)

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