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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