States mull attorneys’ designation

For years, Indianapolis attorney Scott Montross has been a Super Lawyer. He's been on the list and for the most part has been one of the top designees in the state time and time again.

While he doesn't have a direct issue with the validity or credibility of being named a Super Lawyer, the veteran attorney does raise concerns about how the legal profession advertises that moniker and whether it crosses any lines.

"My problem isn't with the designation specifically, as it is with the lawyers attempting to utilize that designation as some sort of endorsement of their credentials," said Montross of Montross Miller Muller Mendelson & Kennedy who's been practicing since 1971. "I've eased my way into accepting that it can be a professional and tasteful advertising tool, but my real problem lies with the whole advertising approach that can be almost misrepresenting credentials to the public."

That mindset is what's brought the Super Lawyer designation into the national spotlight in recent years, as courts and bar associations throughout the country have explored whether this newest avenue of attorney marketing raises ethical issues that must be dealt with. Some in the legal community speculate that advertising dollars or big firm vote repetition influence those rankings, even though Super Lawyers denies those claims and says the process is credible and not connected to the advertising arm.

Started by Minnesota-based magazine Law & Politics, the Super Lawyers list was first published in 1991 but gained more national recognition and prestige after expanding in 2003. Owners say it's published in most states and reaches about 11 million attorneys each year. In February, Thomson Reuters bought the publication and rating avenue and added it to its Business of Law group that offers multiple lawyer marketing and client development tools.

Hundreds of Hoosier lawyers have been tagged as Super Lawyers since it started here in 2004. The 2010 list includes 724 lawyers, a slight increase from the 713 named last year but equivalent to the number named in 2008 and 2007. The list includes about 5 percent of the Indiana bar and is published in the March issue of Indianapolis Monthly that goes to 200,000 readers, as well as Indiana Super Lawyers that's mailed to more than 18,000 state attorneys, chief corporate counsel for some of the country's largest companies, and all American Bar Association-approved law school libraries.

Designated attorneys are selected based on 13,000 ballots sent to attorneys statewide last year, with each person asked to vote for the best lawyers they had personally observed in action. Attorneys are scored based on the number of votes received, and then a research panel considers those who've practiced for at least five years and ranked highest on criteria such as verdicts and settlements, honors and awards, special licenses, and pro bono and community service history.

The designation's validity has become a more common issue throughout the country as courts and bar associations have explored whether the use in marketing should be banned or restricted. Many states have allowed attorneys to use the designations specifically, while other jurisdictions such as Indiana haven't directly addressed the issue. But last year, a years-long battle in New Jersey came to an end and that's expected to offer some guidance for others who are examining the same issues.

In November, the New Jersey Supreme Court eased the restrictions on lawyers being able to mention their inclusion in Super Lawyers, Best Lawyers in America, or Martindale-Hubbell AV rankings. That revision to Rule of Professional Conduct 7.1(a)(3) requires lawyers to include in ads the name of the rating service and a disclaimer saying, "No aspect of this advertisement has been approved by the Supreme Court." State justices also added a comment advising attorneys to read carefully before touting their selections, in order to make sure the ads aren't misleading. It says the conferring service has to have made an inquiry into the attorney's fitness, the honor can't be given for a price, and that the ads must describe the methodology, or at least tell the reader where the description can be found.

Super Lawyers mostly praised the ruling that put New Jersey in line with many other states, and others are expected to follow suit – including Indiana.

Hoosier homefront

The Indiana State Bar Association's legal ethics committee has been discussing and studying this issue for years, according to past and present chairs and committee members.

"A couple of issues that seem to divide the bar on this topic is that the designation is misleading in that it is more of a 'social' type of designation rather than a true 'professional' designation such as a Martindale Hubbell rating," said Westfield attorney John Conlon, who led the ethics committee years ago and first started investigating the topic after a former bar association president asked about it. "Some also feel that attorneys from the bigger, urban firms tend to stuff the ballot box and that it is very hard for a lawyer in a smaller firm to get to be a Super Lawyer. These are all issues that have to be kept in mind, but might not necessarily fall into something rules can address."

Indiana's current professional conduct rules offer only generalities about attorney advertising and little guidance for lawyers about Super Lawyer designations for marketing. Specifically, the rules prohibit "self-laudatory" advertising, and anything that contains and expresses or implies prediction of future success.

But the Indiana Supreme Court is considering a proposed rule change that would more specifically address the issue. Public comment was open until March 1 on a proposed change to Rule 7.2, which a comment notes applies more specifically to the public communications of lawyers rather than private communications made or supported by attorneys. The method of communication is not as important as the size and nature of the audience that could receive the communication, according to the comment.

Attorney and Bloomington law professor Seth Lahn, a member of the ISBA's legal ethics committee studying this issue, said he isn't sure if the rule change would apply to specific practices such as Super Lawyer advertising.

"My interpretation is that it's designed to liberalize or expand the permissible field, to make clearer and modernize some of the rules about attorney advertising," he said. "The touchstone is ensuring that the public isn't misled, not on particular practices."

Lahn said a testimonial or endorsement could be interpreted to apply to Super Lawyers, but it's also possible to interpret the rule so that a third-party claim is permissible if the lawyer is simply restating a factual claim that's verifiable. The issue raises interesting questions, but he isn't sure if there's anything to indicate whether this is a potential problem for Indiana. Lahn said in his 12 years on the ethics committee, he's never been asked by any attorney about their proposed Super Lawyer or similar designation being an ethical issue.

Still, he recognizes that the lawyer advertising area is constantly changing and anything's possible.

This is reflective of the changing of the global legal market, and the pace of change in the legal economy and how lawyers market themselves," he said. "There are a lot of different views on how this is problematic, but there is no consensus right now short of that we aren't categorically able to say it's off limits."