Third-party ratings as modern reputational information: how rules of professional conduct could better serve lower-income legal consumers.

• Author: Petroni, Colleen

INTRODUCTION

During much of the twentieth century, the legality of the professional bar's prohibition on lawyer advertising was noncontroversial. (1) Based in part on a tradition of professional etiquette (2) and in part on a denial of First Amendment protection for "commercial speech," (3) lawyer advertisements were subject to a wide variety of limitations on content, form, and medium. (4) Since 1977, however, increased judicial scrutiny of the constitutionality of such restrictions has led to a remarkable growth in lawyer advertising and a simultaneous elimination of nearly all content limitations. (5)

The commercial speech doctrine, which was given constitutional status in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., (6) provides the legal framework for analyzing the remaining restrictions on lawyer advertising. The doctrine is based on the belief that a free flow of information is necessary in competitive markets. As the Supreme Court explained in Virginia Pharmacy,

So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. (7) In Bates v. State Bar of Arizona, (8) the Supreme Court used the newly developed commercial speech doctrine to strike down a blanket ban on price advertising by lawyers. (9) The Court rejected the state bar's argument that price advertising would erode the dignity or quality of the profession. (10) Instead, as in Virginia Pharmacy, the Court focused on the benefits of having informed consumers and cited studies showing that some people refrained from seeking legal assistance because of the "feared price of services." (11) Acknowledging that "[a]dvertising does not provide a complete foundation on which to select an attorney," the Court reasoned that consumer access to some relevant information is better than access to none at all, and that advertising might compensate for consumer difficulty in obtaining reputational information as communities grow larger and less personal. (12)

Although commercial speech has been recognized as protected under the First Amendment since Virginia Pharmacy, it does not enjoy the same virtually absolute protection as political speech. (13) Because the commercial speech doctrine is founded on the idea that increased consumer awareness is a desirable goal, speech that either does not further or, to the contrary, harms the goal of an informed public merits no commercial speech protection. (14) Therefore, false, misleading, or deceptive commercial speech can be prohibited altogether, and even truthful speech can be restricted if it is potentially misleading. (15) The Court has recognized that the potential to mislead legal consumers is particularly high "because the public lacks sophistication concerning legal services." (16) Accordingly, lawyers have less "leeway for untruthful [and] misleading expression" than other professionals. (17)

Although the Court has laid out a consistent framework to analyze restrictions on misleading statements, (18) and despite the fact that all states prohibit misleading advertisements, it is not always clear whether a particular kind of statement (such as a comparative or superlative statement) is inherently, potentially, or not at all misleading. This Comment argues that this uncertainty may be harming the promotion of independent, bona fide lawyer rating systems, which in turn may harm the legal profession's goal of increasing access to legal services for lower-income populations. This Comment analyzes the effects and constitutionality of restrictions on comparative statements in lawyer advertisements, as applied to third-party rating systems, focusing in part on a recent opinion by the New Jersey Committee on Attorney Advertising that uses the Rules of Professional Conduct to prohibit lawyers from advertising in Super Lawyers magazine. This Comment then argues that regardless of whether the Rules of Professional Conduct are constitutional, they should be revised for policy reasons.

Part I provides an overview of some of the more popular independent lawyer rating organizations. Part II analyzes the likelihood that modern regulatory approaches restricting comparative advertising will prohibit or restrict advertisements that refer to these rating systems. It also discusses the constitutionality of such restrictions using the framework laid out in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York as a guide. Part III discusses solutions for how states could better regulate third-party ratings.

1. THE EMERGENCE OF BONA FIDE RATING SYSTEMS

   In the past twenty years, an increasing number of organizations providing lawyer ratings have emerged. Although Martindale-Hubbell has existed for over 135 years, it has been primarily marketed as a reference for those already involved in the legal profession, rather than as a reference for the general public. (19) In contrast, newer rating organizations such as Super Lawyers, (20) The Best Lawyers in America, (21) and Who's Who in American Law (22) specifically market their magazines and products to consumers. (23) The circulation of these magazines is growing at an astounding rate: Super Lawyers' readership has grown sixty-five percent in just two years and is estimated to top thirteen million readers in 2007. (24)

   As a matter of social policy, the increased availability of these magazines to the public is desirable. The shift in the legal field from small legal communities to larger firms has made the former referral system ineffective for many people. (25) "[N]onwhites and persons of low and middle socioeconomic status usually have fewer sources of reputation information about legal services" (26) and, consequently, these populations are the ones most likely to rely on lawyer advertisements. (27) This lack of access to reputational information denies these populations one of the most important sources of information for finding a lawyer. (28) Insufficient methods of searching for capable lawyers can significantly impede members of lower- and middle-income populations from identifying capable lawyers to represent them. (29) However, reliable and independent ratings can help fill this gap. By utilizing firsthand reputational information provided by lawyers in the field familiar with one another, (30) ratings based on peer-review surveys can serve as a modern reputational reference for those not in a position to obtain such knowledge firsthand. (31)

   To provide this social benefit, however, the ratings themselves must be legitimate. Ratings that allow popularity or financial payoffs to influence the outcome may actually be a detriment to those who rely on them as sources of bona fide ratings of a lawyer's services. (32) Therefore, states need a way to differentiate the genuine rating services from the so-called "sham" organizations. (33)

2. THE CURRENT RULES OF PROFESSIONAL CONDUCT ARE ILL SUITED TO REGULATE ATTORNEY RATINGS

   The current Rules of Professional Conduct do not adequately account for legitimate, third-party peer ratings. In many cases, advertisements referring to such ratings would be prohibited under the Rules, and such a prohibition may be constitutional. However, these restrictions are unwise from a public policy perspective.

   1. Analysis of Current Rules Restricting Comparative Statements

      1. Current Rules May Prohibit Advertisements Referring to Third-Party Ratings

         Although the Rules of Professional Conduct for lawyers vary by state, most states tend to follow one of two approaches to restricting misleading, and specifically comparative, advertisements: the former Model Rules approach (34) or the current Model Rules approach. (35)

         The former version of Rule 7.1 of the American Bar Association (ABA) Model Rules of Professional Conduct specifically defines "misleading," expressly listing three ways in which a communication can fall under the restriction: (a) by containing a material misrepresentation of fact (or omission of a fact necessary to avoid the misrepresentation); (2) by creating an unjustified expectation about potential results; or (3) by making a comparison of one lawyer's services with another's, "unless the comparison can be factually substantiated." (36) A majority of states still closely follow the former version. (37) New Jersey follows this approach with a significant modification: it does not allow any comparisons between two lawyers, regardless of whether the comparison can be substantiated. (38) Only Alabama and Oregon also make such a per se ban on comparisons. (39)

         The second approach, embodied in the current version of Model Rule 7.1, is similar to the first approach, but it eliminates the second and third prongs of the "misleading" definition; instead, it limits the definition to a material misrepresentation of fact or law. (40) The Comment to the Rule, however, still explains that a communication may be misleading if it creates an unjustified expectation or if it makes a factually unsubstantiated comparison of lawyers' services and a reasonable consumer is likely to believe that the comparison can actually be substantiated. (41)

         These 2002 amendments responded to concerns that the former version was too broad, which prompted the ABA delegates to move the two subsections to the Comment as examples of possibly misleading statements, rather than as per se violations. (42) The ABA found this approach preferable because it allows case-by-case analysis rather than a categorical ban. (43) A substantial minority of states have adopted the current form of Model Rule 7.1. (44)

      2. An Overview of the Super Lawyers Process

         At least one state has used its professional responsibility rules to strike down an...