You once represented Super Lawyers in a case before the New Jersey Supreme Court. What First Amendment issue was at stake in that case?
New York appellate attorney Joshua Rosenkranz of Orrick discusses his representation of Super Lawyers and the First Amendment issues at stake.
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So this was a crazy case. This was a classic example of an administrative agency with a very bad case of mission creep. So this agency was an ethics body in New Jersey, and it came out without any investigation, any conversation with Super Lawyers, with an opinion that said that it is unethical to advertise a Super Lawyers achievement – that is, that you had been listed in the Super Lawyers Magazine or to advertise in the Super Lawyers Magazine. This was life or death for the company. If this opinion started proliferating to other ethics bodies across the country, the entire business would have collapsed.
The First Amendment issue was really quite simple. Lawyers, the Supreme Court has held, have a First Amendment right to advertise, to the great dismay of a lot of the sticks in the mud of the established bar. But lawyers have the right to advertise. Ethics bodies can police advertising to make sure that it’s not misleading. And this ethics board concluded that it was misleading. Why? Because it’s an impermissible comparison to other lawyers, and consumers – really stupid consumers – might conclude that if you’ve got Super Lawyers on your résumé, you are guaranteeing results of the sort that only a super hero could produce. So it was a very important First Amendment opinion not just for Super Lawyers but for the body of law that governs what lawyers are allowed to say about themselves and what they’re allowed to advertise.