Under ER 7.1, as amended in 2003, it is ethical for a lawyer to advertise that the lawyer is listed in The Best Lawyers in America
as long as the advertisement is truthful and includes the year and specialty for the listing. In light of the amendment to ER 7.1, Opinion 91-08 is no longer viable to the extent it conflicts with this Opinion.
In Opinion 91-08, the Committee addressed whether it was ethical for an Arizona lawyer to advertise the lawyer's listing in The Best Lawyers in America or Who's Who in American Law. In addressing this issue, the Committee considered Rule 7.1(c) of the Rules of Professional Conduct, which then provided:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.
In light of Rule 7.1(c), the Committee determined that a lawyer who states in an advertisement that the lawyer is listed in The Best Lawyers in America is necessarily "trying to convey that the quality of his or her services is superior to the quality of other lawyers' services." Finding that the listing in The Best Lawyers in America could be verified, but that the consequential implication of superior quality of services could not be verified, the Committee concluded that such an advertisement, as a whole, was unethical under ER 7.1(c).
In December 2003, the Arizona Supreme Court amended ER 7.1 by, among other things, deleting the language in subsection (c) from the Rule. In light of this amendment, the inquiring attorney presents two questions.
(1) Whether, under ER 7.1, as amended, it is unethical for an Arizona lawyer to advertise the lawyer's listing in The Best Lawyers in America or a similar publication.
(2) Whether Opinion 91-08 is still viable under ER 7.1, as amended.
RELEVANT ARIZONA ETHICS OPINIONS
The version of ER 7.1 that existed before the 2003 amendments expressly prohibited any comparison of a lawyer's services that could not be factually substantiated. This prohibition was one of four categories of communication that were defined as "false or misleading" communications in the pre-2003 version of ER 7.1. The 2003 amendments to the Rule struck all but one of the four categories, leaving only the definition that a communication is "false or misleading" if "it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not misleading."
Under the 2003 amendments to ER 7.1, a modified version of the former prohibition against comparative statements that cannot be factually substantiated was moved to comment 3 of the Rule. The reference to comparative statements in comment 3 to ER 7.1, as amended, now must be viewed as a tool for engaging in proper analysis of the ethical requirements for advertising under ER 7.1, and not as a requirement per se. In that sense, where the prior version of ER 7.1 explicitly addressed any comparative statement that is not factually substantiated, comment 3 to the present ER 7.1 is more subtle. Comment 3 provides that "an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated." As amended, then, ER 7.1 no longer decides that any factually unsubstantiated comparison is per se false or misleading. Instead, ER 7.1, as amended, now instructs that whether a factually unsubstantiated comparison is false or misleading should be decided under an objective standard, with the likelihood of such a statement being false or misleading increasing in conjunction with the specificity of the statement.
In Opinion 91-08, the Committee concluded that an advertisement containing the verifiable statement that an attorney is listed in The Best Lawyers in America is necessarily "trying to convey" that the attorney is one of the best lawyers in America. The latter statement, we concluded, could not be substantiated and, therefore, was per se prohibited under the then-current version of the Rule. Op. 91-08 at 5. Taking the same assumption of what an attorney is "trying to convey" by stating that the attorney is listed in The Best Lawyers in America, and accepting that this statement cannot be verified, the Committee now must analyze this corollary statement under ER 7.1, as amended. Comment 3 to ER 7.1 instructs us to ask whether a reasonable person would conclude from the reference to The Best Lawyers in America that it can be verified that the advertising lawyer is, in fact, one of the best lawyers in America.
An implied comparison of a lawyer's services or fees with the services or fees of other lawyers may not be misleading under ER 7.1, as amended, if the basis for the comparison can be verified. The Eleventh Circuit reaches a similar conclusion in Mason v. Florida, 208 F.3d 952 (11th Cir. 2000). In Mason, the Eleventh Circuit concluded that a lawyer's advertisement representing his "AV rating, the Highest Rating" was not misleading. The court explained that, while the AV rating system is not generally known to the public, the statement can be verified. "A rating, like a claim of certification, 'is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, but is simply a fact, albeit one with multiple predicates, from which a consumer may or may not draw an inference of the likely quality of an attorney's work.'" Id. at 957 (quoting Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91, 101 (1990)).
Applying the above rationale to the inquiry at issue here, it generally is not unethical for an Arizona lawyer to refer to the lawyer's listing in The Best Lawyers in America in an advertisement about the lawyer. Like the factual statements included in the advertisement by the lawyer in Mason, the factual statement that a lawyer is listed in The Best Lawyers in America is an implied comparison with a subjective basis that can be verified. The possibility that a consumer may be unfamiliar with the publication is not sufficient enough of a concern to change the analysis. "Unfamiliarity is not synonymous with misinformation." Mason, 208 F.3d at 957. A consumer who wishes to investigate the underlying basis for a lawyer's listing in The Best Lawyers in America can simply read the introduction to the publication, which explains:
Lawyers are chosen for inclusion based on a vote of their peers. That is, and has always been, the sole criteria for inclusion in Best Lawyers. Listings cannot be bought, and the purchase of a book or link has no impact on the inclusion process described below.
The survey began by a nomination pool consisting of (1) lawyers who had been nominated sua sponte during the two year period since the previous survey; (2) lawyers who had been nominated for but not listed in the previous edition (lawyers nominated but not listed remain in the nomination pool for two editions, at which time, if they have not been voted onto the list, they are removed from the nomination pool, although they can be re-nominated); and (3) all lawyers whose names appeared in the [immediately preceding] edition of Best Lawyers. New nominations, solicited from the 16,500 attorneys listed in the previous edition, completed the nomination pool.
All of the lawyers in the previous edition were sent ballots and asked to vote on the nomination pool. Some lawyers were asked to vote only on nominees in their own specialty in their own jurisdiction. Lawyers in closely-related specialties were asked to vote across specialties, as were lawyers in smaller jurisdictions. In a few instances, where specialties are national or international in nature, lawyers were asked to vote nationally as well as locally. Voting lawyers were also given an opportunity to offer more detailed comments on nominees. In all, more than 900,000 individual votes were cast in compiling the new edition.
As in previous surveys, we provided voting lawyers with only the following general guideline for determining if a nominee should be listed among "the best": "If you had a close friend or relative who needed a real estate lawyer (for example), and you could not handle the case yourself - for reasons of conflict of interest or time - to whom would you refer them?" All votes and comments were solicited with a guarantee of confidentiality - a critical factor in the viability and validity of Best Lawyers surveys since we began polling lawyers two decades ago.
To ensure the continued rigor of the selection process, we urged lawyers to use only their highest standards when voting, and to evaluate each attorney based only on his or her individual merits. The additional comments allowed us to more accurately compare and weigh voting patterns. Over the years, we have developed methodological tools to identify and correct for anomalies in both the nomination and the voting process, including the distortive impact of partner votes.
. . . .
Ultimately, of course, a lawyer's inclusion in these lists is based on the subjective judgments of his or her fellow attorneys. While it is true that the lists may at times disproportionately reward visibility or popularity, we remain as confident today as we were twenty years ago that the breadth of our survey, the candor of our respondents, and the sophistication of our polling methodology largely correct for any biases, and that these lists continue to represent the most reliable, accurate, and useful guide to the best lawyers in the United States available anywhere.
The Best Lawyers in America 2005-2006 at vii-ix (S. Naifeh & G. White Smith eds. 2005). Based on this explanation of the process for compiling the listing, a consumer reasonably can determine how much value, if any, to afford the advertised listing. Accordingly, under ER 7.1, as amended, it generally is not unethical for a lawyer to make a truthful representation in an advertisement that the lawyer is listed in The Best Lawyers in America.
Notwithstanding the general rule, there may be circumstances where even a truthful representation of one's listing in The Best Lawyers in America can be unethical. A lawyer who advertises the fact that he or she is listed in The Best Lawyers in America, but "omits a fact necessary to make the statement considered as a whole not misleading," is behaving unethically. For example, if a lawyer who was listed in The Best Lawyers in America 1982-1983 states in a current advertisement that the lawyer is listed in The Best Lawyers in America without more, the lawyer is acting unethically by omitting the year of the publication and, thereby, misleading the consumer by implying that the lawyer is listed in the most current version of the publication. Similarly, the lawyer is acting unethically by omitting the specialty for which he or she was listed in the publication and, thereby, misleading the consumer by implying that the lawyer has unlimited legal expertise. Thus, to make the advertisement as a whole not misleading, the advertising lawyer must provide the year for the listing in the publication, as well as the specialty for which the lawyer was listed in the publication.
This Opinion is limited to a listing in The Best Lawyers in America. The Committee does not address whether it is unethical for a lawyer to include in an advertisement the lawyer's listing in a "similar publication." Without knowing the identity of the publication, this Committee cannot conclude whether the publication's criteria enable a reasonable consumer to draw appropriate inferences and, thus, to determine whether a listing in such publication is misleading. As an example, as the United States Supreme Court noted in Peel, "if the certification had been issued by an organization that had made no inquiry into [a lawyer's] fitness, or by one that issued certificates indiscriminately for a price, the statement, even if true, could be misleading." 496 U.S. at 102 (emphasis added); accord Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, Bd. of Accountancy, 512 U.S. 136, 148 (1994). The Committee's Opinion, therefore, cannot and should not be construed as approving the advertisement of one's listing in publications that may be similar to The Best Lawyers in America.
Under ER 7.1, as amended, it is not unethical for a lawyer to advertise the lawyer's listing in The Best Lawyers in America, as long as the advertised representation is truthful and includes the year in which and the specialty for which the lawyer was listed in the publication. Even if such advertised representation is construed as a comparison, the representation still is ethical because the subjective basis for the implied comparison can be verified. In light of the 2003 amendment to ER 7.1 and this Opinion, Opinion 91-08 is no longer viable to the extent it conflicts with this Opinion.