Posted by Margaret Daisley
I’ve been hearing the grumblings for some time now, mostly from marketing folks. The broad topic of the grumblings had to do with the burden of surveys they were expected to fill out. It wasn’t so much the fact-based surveys like The Am Law 200 and The NLJ 250 which lead to adjectives such as “biggest” and “richest.” Or the associate satisfaction surveys (The Midlevel Associate Survey and The Summer Associate Survey), in which ephemeral attributes such as “most satisfied” can be measured on a 5-point scale.
No, it was the beauty contests that were causing the problems, these marketing folks would say. Beauty contests are those surveys in which the firm or individual lawyer (read: marketing staff member) must fill out endless forms and complete (or arrange to complete) endless interviews about one’s self and other “best” and “super” lawyers and law firms and law departments. Unlike surveys which use mostly quantitative measurements, beauty contests use more qualitative methodology. As described in a recent blog post by consultant Larry Bodine on his Law Marketing Portal: “The publisher of Super Lawyers, Minneapolis-based publisher Law & Politics, a division of Key Professional Media … conducts surveys to identify the best 5% of all lawyers in a state, based on their verdicts, settlements, transactions, clients, experience, honors, position in the firm and pro bono work.” And “The Best Lawyers in America, published biennially since 1983, is a lawyer referral guide covering 57 specialties in the U.S.
(Full disclosure: As ALM editor in chief Monica Bay puts it on her blog, The Common Scold, our mutual employer, ALM Media Inc., partners with Best Lawyers to produce "The New York Area's Best Lawyers," which runs as a Special Advertising Supplement in New York magazine.)
The lists are compiled through a peer-review survey in which lawyers confidentially evaluate their professional peers. The 2006 edition of Best Lawyers, is based on more than 1.5 million evaluations of lawyers by other lawyers.”
But the grumblings of marketing folks across the nation have finally been heard. Or perhaps the backlash against these beauty contests and their qualitative methodology was inevitable. The New Jersey Supreme Court-appointed Committee on Attorney Advertising ruled in late July that “advertising by lawyers with the designation ‘Super Lawyers’ or ‘Best Lawyers’ is prohibited as a form of unethical comparative advertising that is also likely to create an unjustified expectation about the results the lawyer can achieve,” as summed up by Bodine. “The ethics ruling eliminates the usefulness of the designation for the state’s 38,000 attorneys, and is likely to do so nationwide, because the ethics rules the New Jersey committee cited are common in most other states.”
This is big. And so of course the blogosphere has started to weigh in on what it all means. Bodine and Bay have different viewpoints. As Bay puts it on The Common Scold, “I totally disagree with Larry about the value of peer-ranked lists. (He says: ‘I've always thought that promoting yourself as a Super Lawyer or Best Lawyer was pathetic, self-aggrandizing and meaningless.’ Sorry, Larry, but I love the lists,” Bay goes on to say, “I always grab the Best Doctors list to see if my orthopod is among those listed (he is.) If nothing else, it makes you feel good to see you are in good hands. Who else to tell you who's a good lawyer than other lawyers? (Of course, it would also be nice to have an e-bay feedback system to see how clients would rank their lawyers and docs.)”
Carolyn Elefant ventures her opinion on Legal Blog Watch: “Personally, I don't put much stock in beauty contests like SuperLawyers. Most of the time, they're dominated by large firms anyway; most of those firms wouldn't handle consumer matters anyway, and most consumers couldn't afford to hire those attorneys. Still, like my colleagues, I don't see the need to regulate lawyers who tout their SuperLawyers' listing.”
And plenty of other lawyer-bloggers have also felt the need to comment. On The Legal Marketing Blog, Tom Kane writes that “Idiocy Rules in New Jersey.” Peter Lattman on Wall Street Journal Online quotes William White, the publisher of Super Lawyers magazines, as saying “Had they taken two minutes to ask about our methodology we would’ve supplied it.” “We go through an incredible amount of work to come up with this list and rely heavily upon our own detailed research of the lawyers that are nominated. To call it arbitrary is just incredible.”
The crux of the problem, according to the Committee that banned the use of “Best” and “Super” Lawyer designations in marketing is, according to their ruling, that they “violate the prohibition against advertisements that are comparative in nature” and/or that they “create an unjustified expectation of results.” Both conditions are spelled out in the Rules of Professional Conduct. (God forbid that we should have expectations of good results from our lawyers and firms, or that one should be deemed better than another in their individual areas of expertise.)
On the other hand, perhaps the real problem is simply that they are not dressing for the part. Kevin O’Keefe, in a short and laconic post on Real Lawyers Have Blogs writes that “Though the chosen lawyers liberally use the 'Super Lawyer' designation in their marketing, I have not seen any lawyer ads depicting a lawyer in a cape.”
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