Maryland law firm declines to participate in 'Super Lawyers'

Daily Record, The (Baltimore), Jan 22, 2007 by Caryn Tamber

One of Maryland's largest law firms declined to participate in this year's list of Maryland Super Lawyers because of ethics concerns about the publication.

As a result, none of Venable LLP's attorneys appear on the list, which ran as an advertising section in this month's issue of Baltimore magazine.

The firm's decision stemmed from New Jersey Supreme Court ethics panel ruling last July that advertising one's inclusion in New Jersey Super Lawyers or another list, Best Lawyers in America, or even participating in ranking colleagues for such a list, violates the state's rules of conduct for attorneys. Responding to requests from the state bar and Super Lawyers' publisher, the state Supreme Court later stayed the panel's ruling pending its own decision.

The ethics panel decision is, of course, not binding on lawyers in other states, but Venable decided it "should be given some consideration," firm counsel G. Stewart Webb Jr. said. New Jersey's lawyer advertising rules are based on the model rules followed by other states, he pointed out.

"We basically decided prudence dictated we should not participate in the survey while the issues were still out there," Webb said.

He said some of the firm's attorneys were contacted for inclusion on the list but the firm's decision was that their names should not appear.

The head of ethics for the Maryland State Bar Association, Paul D. Raschke, said his committee has not taken a position on the Super Lawyers matter and wants to see what happens in New Jersey.

Produced by a division of Minneapolis, Minn.-based Key Professional Media Inc., Super Lawyers offers annual compendiums of lawyers in many states. The lists generally appear as advertising sections in local lifestyle magazines.

According to the company, winners are selected through a rigorous process which includes peer surveys and extensive research on candidates' qualifications. No more than 5 percent of a given state's lawyers may be included on the list.

The 27-page Maryland Super Lawyers 2007 insert lists the top 50 Super Lawyers, the top 25 women, and then dozens of lawyers by practice area. Interspersed are lawyer advertisements touting attorneys' inclusion in Super Lawyers, but the company says no one pays to make the list.

'Inherently comparative'

In its Opinion 39, the New Jersey panel held that lawyers who advertise themselves as Super Lawyers or Best Lawyers violate the state's Rules of Professional Conduct 7.1(a)(3), which says an advertisement should not "compare[] the lawyer's services with other lawyers' services." Promoting oneself as "super" or "best" is "inherently comparative" and implies that a client will get better results than with an ordinary attorney, the panel found.

Maryland's Rule 7.1(c) contains similar language, holding that an ad cannot "compare [] the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated."

Raschke said that, although the ethics committee has not issued an opinion on Super Lawyers and Best Lawyers, he believes most lawyers do not see participating in those listings as a violation.

"I think the bar may see this differently than ethics committees do," he said. "If you talk to the rank-and-file lawyer in Maryland, he will tell you this does not violate the rules."

Another state that considered banning participation in Super Lawyers and Best Lawyers, New York, ultimately went the other way. It has just revised its ethics rules to allow "bona fide professional ratings" in lawyer advertising.

Super Lawyers publisher William C. White said he has not seen other non-New Jersey firms following Venable's lead.

"We have seen some firms in New Jersey who have just taken a wait- and-see" approach, White said. Venable is "the first firm that I have seen that says, 'We're putting that on hold in all jurisdictions.'"

Larry Bodine, who runs a listserv for law firm marketers, said the legal marketing community is abuzz with discussions of the ethics of Super Lawyers, though he said he has heard of only one other firm that has completely refused to participate.

"I think this is just the tip of the iceberg," Bodine said. "If there's one or two firms that have sort of privately decided, I'm sure there's a lot of law firms that are doing the same. Attorneys see Super Lawyers and the first thing that comes to mind is 'ethics controversy,' and they don't want anything to do with that."

It is unclear if other Maryland firms declined to participate in Super Lawyers this year. The Daily Record called representatives of a few large firms whose attorneys did appear on the Super Lawyers list to ask if the firms considered not participating this year, but none returned calls for comment.