UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER'S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY.
Applicable Rules of Professional Conduct: 7.1, 7.2
Factual Background: Local and regional newspapers, local web-based platforms (including television stations or networks) and national publishers compile annual 鈥淏est of鈥︹�� surveys of their readers, or conduct evaluations of lawyers resulting in a designation or accolade as a 鈥淏est Lawyer鈥� or 鈥淪uper Lawyer鈥� or similar appellation. Some of the publications require firms to ask for nominations from their customers or to pay a fee in order to be nominated for voting, while others accept all nominations and votes without the knowledge or consent of the nominee. All have differing criteria for receiving or achieving the particular designation or accolade. Most, if not all, of the organizations offer a badge or emblem for use on firm websites and in other marketing materials to publicize the bestowed honor, some of which will also serve on the firm website as a hyperlink to the website of the bestowing organization.
Question Presented: May a South Carolina lawyer accept and advertise a designation or accolade such as 鈥淏est Lawyers鈥� or 鈥淪uper Lawyers,鈥� whether in a legal publication or in a newspaper readers poll, in conformity with the advertising rules of the South Carolina Rules of Professional Conduct?
Summary: Yes, the lawyer may accept and advertise such a designation or accolade, and utilize any 鈥渂adges,鈥� symbols, or other marks authorized by the designating entity in situations when:
Discussion: The courts or bars of several jurisdictions nationwide have addressed this issue [1]. They have uniformly approved the acceptance of designations or accolades and use of them (including proprietary 鈥渂adges,鈥� symbols, or other marks) in attorneys鈥� advertising subject to certain conditions designed to insure that the use of such accolades or designations is not false or misleading.
S.C. R. Prof. Conduct 7.1 prohibits communications regarding a lawyer that are 鈥渇alse, misleading, or deceptive.鈥� A communication may violate the rule if it 鈥渃ontains a material misrepresentation of fact or law,鈥� omits facts 鈥渘ecessary to make [a] statement considered as a whole not materially misleading,鈥� or creates 鈥渁n unjustified expectation about results the lawyer can achieve 鈥�.鈥� Id.
In 2007, the North Carolina Bar, applying virtually identical Rule language to the communication of an attorney鈥檚 designation as a 鈥淣orth Carolina Super Lawyer鈥� by the publication of that name made the following observations:
[I]n Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990), a plurality of the Supreme Court concluded that a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his certification as a trial specialist by the National Board of Trial Advocacy (NBTA). The Court found NBTA to be a "bona fide organization," with "objectively 91黑料爆料ar" standards, which had made inquiry into Peel's fitness for certification and which had not "issued certificates indiscriminately for a price." Id. at 102, 110. If a state is concerned that a lawyer's claim to certification may be a sham, the state can require the lawyer "to demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of the law." Id. at 109. In concluding that the NBTA certification advertised by Peel in his letterhead was neither actually nor potentially misleading, the Court emphasized "the principle that disclosure of truthful, relevant information is more likely to make a positive contribution to decision-making than is concealment of such information."
N.C. State Bar 2007 Formal Ethics Opinion (鈥淔EO鈥�) 14 ().
Referencing an earlier opinion, N.C. State Bar 2003 FEO 3, regarding advertising membership in the 鈥淢illion Dollar Advocates Forum,鈥� the 2007 opinion stated that such an advertisement was determined not to violate Rule 7.1 where:
Id. Applying this specifically to a lawyer being designated as a North Carolina Super Lawyer and advertising that fact, the 2007 opinion stated that the Super Lawyers organization 鈥渁ppears to be a bona fide organization, as described in Peel 鈥�, in that it has objectively 91黑料爆料ar and consistently applied standards for inclusion in its lists and inclusion is available to all lawyers who meet the standards.鈥� Id. Applying the standards of its 2003 opinion in the context of a Super Lawyers designation, the opinion held advertising such designation or accolade was not misleading or deceptive within the meaning of Rule 7.1 where:
Id. The opinion further stated that an advertisement must make it 91黑料爆料ar that the 鈥淪uper Lawyer鈥� designation is made by a specific publication or entity through use of distinctive typeface or italics 鈥渁nd may not simply state that the lawyer is a 鈥楽uper Lawyer,鈥欌�� which would constitute an unsubstantiated comparison prohibited by the rule. Id. Finally, the opinion noted that where, as with North Carolina Super Lawyers, the listing was redone annually, any advertisement should include the specific year in which the lawyer was so designated in order to prevent misleading the public that the designation was perpetual. Compliance with these guidelines as articulated in the 2007 North Carolina Bar opinion satisfy the requirements of S.C. R. Prof. Cond. 7.1.
The guidelines set forth above also address the prohibition of S.C. Rule of Prof. Conduct 7.2(c) that a lawyer not pay anything of value for a recommendation except 鈥渢he reasonable costs of advertisements or communications permitted by this Rule.鈥� Id. Applying similar language in the North Carolina rules, the 2007 opinion stated that an attorney could purchase an advertisement in the North Carolina Super Lawyers advertising supplement or magazine at the going advertising rate so long as payment for an advertisement was not a prerequisite to participation or inclusion in the evaluation and listing process for the organization.
The Committee also notes that any advertisement utilizing an accolade or designation such as 鈥淪uper Lawyer鈥� must also comply with generally applicable rules regarding advertisements set forth in Rules 7.2(d) through (h). The Committee would particularly note that Rule 7.2(i) requires that the information regarding the standards for selection 鈥� either the standards themselves, or direction on where to find them鈥攎ust appear in the specified format (no unreadable type) and on the same page as the accolade or designation.
In summary, a South Carolina licensed attorney may, consistent with Rules 7.1 and 7.2, accept and advertise a designation or accolade from an organization such as 鈥淪uper Lawyers,鈥� 鈥淏est Lawyers,鈥� as well as a local newspaper鈥檚 鈥淏est of鈥� readers poll, and utilize any 鈥渂adges,鈥� symbols, or other marks authorized by the designating entity in situations where
[1] The Committee has, of the date of this opinion, located the following decisions of state courts or bar authorities addressing the same question:
