Utah State Bar
Ethics Advisory Opinion Committee
Revised Opinion Number 14-04 (see Dissent)
Issued November 12, 2014
1. What are the ethical limits to participating in attorney rating systems, especially those that identify “the Best Lawyer” or “Super Lawyer”?
2. Rule 7.1 of the Utah Rules of Professional Conduct (the “URPC”) prohibits false or misleading communications concerning a lawyer or a lawyer’s services. An unsubstantiated comparison of lawyers is false or misleading if it would lead a reasonable person to conclude that the comparison can be substantiated. Advertisement of a rating, or of inclusion in a ranking list as being “super” or “best” or the like, by a comparing organization is permissible where the comparing organization has made an appropriate inquiry into the lawyer’s fitness, the lawyer does not pay to receive the rating itself (although she may pay for an investigation in accordance with Rule 7.2), the comparing organization’s methodology or standard used to determine the rating or ranking is fully disclosed and explained and conveniently available to the public, and the communication disclaims the approval of the Utah Supreme Court and/or the Utah State Bar. The factual basis for the comparison of the rated or listed lawyer’s services to the services of other lawyers must be verifiable in order to pass muster under Rule 7.1. Any advertisement must state that the lawyer was included in a “super” or other such list or ranking rather than describe the lawyer as being a “super lawyer” or the “best lawyer.” The statements that a lawyer is “super” or the “best” cannot be factually substantiated and are inherently misleading.
3. Rule 7.2 of the Utah Rules of Professional Conduct prohibits giving “anything of value to a person for recommending the lawyer’s services; except that a lawyer may: . . . pay the reasonable costs of advertisements or communications permitted by this Rule. . . .” Rule 7.2(b)(1). A lawyer who pays an entity to list her as the “best lawyer” in an area or to otherwise compare her favorably to other lawyers violates Rule 7.2 because she is giving something of value to another to recommend the lawyer’s services. She is not paying the reasonable costs of advertising. Similarly, trading votes with another in a survey to determine the “best lawyer” is giving something of value for the other person to recommend the lawyer’s services and violates Rule 7.2. “[A]nything of value” would also include monies paid to a public figure or celebrity to recommend a lawyer. It is permissible for a lawyer to pay a fee to a comparing organization to conduct an investigation into the lawyer’s fitness, but the outcome of the investigation must be independent of the fee.
4. Certain websites, advertisers and companies offer services in which they list lawyers as the “best” in a particular locale, practice area, city, etc. Sometimes these entities determine who they will list as the “best” simply by including whoever signs up (and pays them) first. Other times companies will run on-line voting contests to determine which lawyers, restaurants, and businesses are the “best” in the area based solely on the number of votes cast, a system that can be easily manipulated by lawyers with large staffs or multiple email addresses. Other entities purport to have more scientific or valid methods of identifying outstanding lawyers, in which they investigate each lawyer’s fitness before deciding whether to rate the lawyer favorably. Still other entities investigate and approve of law firms or lawyers who have good business practices (e.g., have current business licenses and Utah State Bar licenses, have not been publicly disciplined, etc.), separate and apart from the lawyers’ legal experience, skill, and expertise, or lack thereof, which they do not investigate or evaluate. The Committee has been asked to opine as to when these arrangements violate the Rules of Professional Conduct.