Before you advertise your inclusion in a “Best Lawyers” or “Super Lawyers” list, make sure you know what the State Bar has to say about the matter.
In 2018 Formal Ethics Opinion 8, the State Bar ruled that “a lawyer may advertise the lawyer’s inclusion in a list or membership in an organization that bestows a laudatory designation on the lawyer subject to certain conditions.”
Among those conditions: you can’t receive any compensation for making the list, and you must explain the criteria by which you were included.
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NC State Bar 2018 FEO 8
Here is the inquiry that initiated 2018 FEO 8:
“Numerous companies and organizations provide lawyers with the opportunity to be included in a list or to become members of a group that describes itself with self-laudatory terms and/or bestows self-provided accolades to its members. Examples of such lists or groups are those that describe their included lawyers as ‘best,’ ‘super,’ and ‘distinction.’ Lawyers then advertise their inclusion in these groups or lists to consumers.”
“Do the Rules of Professional Conduct permit a lawyer to advertise their inclusion in such self-laudatory groups or lists?”
Yes, the State Bar ethics committee held, subject to the following three conditions.
Condition #1: No compensation for being included.
“First, no compensation may be paid by the lawyer, or the lawyer’s firm, for the award or accolade being bestowed upon the lawyer or for inclusion in the group or listing. Although a lawyer may pay the reasonable costs of advertisements as a result of inclusion, see Rule 7.2(b) and 2018 FEO 1, marketing or advertising fees that must be paid prior to the lawyer’s inclusion in the group or listing or the lawyer’s receipt of the accolade or award effectively become compensation required from the lawyer for inclusion or for the accolade. As such, the accolade, award, or inclusion is misleading in violation of Rule 7.1(a) because it is bestowed, at least in part, because of a lawyer’s willingness and ability to pay, and not for reasons that are objective, verifiable, and bona fide. After the award, accolade, or inclusion has been granted, a lawyer may pay the reasonable costs of advertisements concerning the inclusion. However, marketing or advertising fees charged by the self-laudatory group that serve as a barrier to the lawyer’s inclusion in the group or receipt of an accolade are not permissible.”
Condition #2: Due diligence is required.
“Second, before advertising the inclusion or any award associated with inclusion, the lawyer must ascertain that the organization conferring the award is a bona fide organization that made adequate and individualized inquiry into the lawyer’s qualifications for the inclusion or award. The selection methodology must be based upon objective, verifiable, and consistently applied factors relating to a lawyer’s qualifications (including but not limited to a lawyer’s years of practice, types of experience, peer review, professional discipline record, publications and/or presentations, and client and other third-party testimonials) that would be recognized by a reasonable lawyer as establishing a legitimate basis for determining whether the lawyer has the knowledge, skill, experience, or expertise indicated by the designated membership.”
Condition #3: Be transparent as to selection criteria.
“Third, any advertisement by the lawyer of his inclusion in a self-laudatory group or list must also contain an explanation of the standards for inclusion or provide the consumer with information on how to obtain the inclusion standards. See Bates, 433 U.S. at 375. The explanation of the standards for inclusion – wherever located – must be such that a potential consumer of legal services can reasonably determine how much value to place in the lawyer’s inclusion in such group or list. Additionally, the advertisement must state only that the lawyer was included in the list, and not suggest that the lawyer has the attribute(s) conferred by the group or list. This requirement applies equally to groups or lists that contain a superlative in the name of the group or list itself, such as ‘super’ or ‘best,’ and groups or lists that do not contain superlatives in the name of the group or list but bestow such superlatives on its included lawyers through the group’s or list’s marketing materials (including its online presence). When the group or list inclusion may create unjustified expectations, such as the expectation that a lawyer obtains a high-dollar verdict in every case, the advertisement must also include a disclaimer providing notice that similar results are not guaranteed, and that each case is different and must be evaluated separately See 99 FEO 7, 2000 FEO 1, and 2003 FEO 3. Lastly, the advertisement must indicate the year(s) in which the lawyer received the award or was a member of the organization.”
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