Opinion 2004-10
(December 2004)

The inquirer asks whether he may use the designation, "Pennsylvania Super Lawyer" in your 2004 Yellow Pages advertising and in other advertising. The inquirer indicates he has been designated a "Pennsylvania Super Lawyer" by "Law & Politics," a company that published a "Pennsylvania Super Lawyers 2004" advertising section in Philadelphia Magazine. The process and criteria used for selection of the designation can be found at www.superLawyers.comĀ®. It is the opinion of the Committee that, although an attorney advertisement may state that an attorney has been designated a "Super Lawyer," it may only do so when the advertisement contains sufficiently detailed information about that process and criteria for the reader to whom the advertisement is directed, to determine the manner and context within which the designation was made. Blanket statements that do not provide accurate and sufficient contextual information concerning ratings or other similar appellations do not comply with the Rules of Professional Conduct, currently and as amended January 1, 2005.

This inquiry is governed by Rule of Professional Conduct 7.1 ("Communications Concerning a Lawyer's Services"), which states:

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:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, such as the amount of previous damage awards, the lawyer's record in obtaining favorable verdicts, or client endorsements, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law;

(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated; or

(d) contains subjective claims as to the quality of legal services or a lawyer's credentials that are not capable of measurement or of verification.

In addition, the Comment to Rule 7.1 states:

This Rule governs all communications about a lawyer's services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer's services, statements about them should be truthful. The prohibition in paragraph (b) of statements that may create ''unjustified expectations'' has been expanded to incorporate the substance of the previous Comment, and to make clear that results obtained on behalf of one client may be misleading as indicators of the result another client might expect. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances. Paragraph (d) expresses the qualification found in existing law condemning claims that are subjective, and not capable of objective verification, concerning the quality of a lawyer's services or of his credentials. (emphasis supplied)

Under Rule 7.1 (b) and (c), no advertising can create an unjustified expectation about the results a lawyer can achieve, nor can it compare the lawyer's services with other lawyer's services, unless the comparison can be factually substantiated. In particular, subsection (c) of the Rule prohibits a comparison of a "lawyer's services with other lawyers' services, unless the comparison can be factually substantiated." It is that particular comparison that is at issue here.

In addition, Rule 7.1(d) disallows advertising that contains subjective claims about "the quality of legal services or a lawyer's credentials that are not capable of measurement or of verification." Under the facts presented, a statement that an attorney is a "Super Lawyer" creates the impression that the attorney is superior to other attorneys, without providing the context for the statement. Further, such a designation is not quantifiable. Thus, to state that a lawyer is a "Super Lawyer" violates Rule 7.1 because, absent supporting documentation, such as providing the complete explanation above, there is no way to factually substantiate the finding.

Effective January 1, 2005, Rule of Professional Conduct 7.1 has been amended, and states:

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 contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Although revised Rule 7.1 eliminates subsections (b), (c) and (d) and the Comments to the Rule, it contains the following new comments:

1. This Rule governs all communications about a lawyer's services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer's services, statements about them must be truthful.

2. Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation.

3. An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, 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 comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.

Thus, under revised Rule 7.1, all comments must be "truthful" and may not create an unjustified expectation concerning the results a lawyer can achieve. Although Comment 3 permits an "appropriate disclaimer or qualifying language" in advertisements that would otherwise violate the Rule, the proposed advertisement in this inquiry does not contain any disclaimer or qualifying language. Consequently, the advertisement would also violate revised Rule 7.1.The Committee suggests that the amount of information necessary to make an advertisement compliant with Rule 7.1 varies depending upon the intended audience.   It may be appropriate to conclude that the amount of disclaimer information that would be satisfactory in a lawyer-to-lawyer publication might not similarly be satisfactory when the ad in question appears in a more consumer, public-consumption type of publication, such as the Yellow Pages.

 

 

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.