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States mull attorneys' designation

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For years, Indianapolis attorney Scott Montross has been a Super Lawyer. He's been on the list and for the most part has been one of the top designees in the state time and time again.

While he doesn't have a direct issue with the validity or credibility of being named a Super Lawyer, the veteran attorney does raise concerns about how the legal profession advertises that moniker and whether it crosses any lines.

"My problem isn't with the designation specifically, as it is with the lawyers attempting to utilize that designation as some sort of endorsement of their credentials," said Montross of Montross Miller Muller Mendelson & Kennedy who's been practicing since 1971. "I've eased my way into accepting that it can be a professional and tasteful advertising tool, but my real problem lies with the whole advertising approach that can be almost misrepresenting credentials to the public."

That mindset is what's brought the Super Lawyer designation into the national spotlight in recent years, as courts and bar associations throughout the country have explored whether this newest avenue of attorney marketing raises ethical issues that must be dealt with. Some in the legal community speculate that advertising dollars or big firm vote repetition influence those rankings, even though Super Lawyers denies those claims and says the process is credible and not connected to the advertising arm.

Started by Minnesota-based magazine Law & Politics, the Super Lawyers list was first published in 1991 but gained more national recognition and prestige after expanding in 2003. Owners say it's published in most states and reaches about 11 million attorneys each year. In February, Thomson Reuters bought the publication and rating avenue and added it to its Business of Law group that offers multiple lawyer marketing and client development tools.

Hundreds of Hoosier lawyers have been tagged as Super Lawyers since it started here in 2004. The 2010 list includes 724 lawyers, a slight increase from the 713 named last year but equivalent to the number named in 2008 and 2007. The list includes about 5 percent of the Indiana bar and is published in the March issue of Indianapolis Monthly that goes to 200,000 readers, as well as Indiana Super Lawyers that's mailed to more than 18,000 state attorneys, chief corporate counsel for some of the country's largest companies, and all American Bar Association-approved law school libraries.

Designated attorneys are selected based on 13,000 ballots sent to attorneys statewide last year, with each person asked to vote for the best lawyers they had personally observed in action. Attorneys are scored based on the number of votes received, and then a research panel considers those who've practiced for at least five years and ranked highest on criteria such as verdicts and settlements, honors and awards, special licenses, and pro bono and community service history.

The designation's validity has become a more common issue throughout the country as courts and bar associations have explored whether the use in marketing should be banned or restricted. Many states have allowed attorneys to use the designations specifically, while other jurisdictions such as Indiana haven't directly addressed the issue. But last year, a years-long battle in New Jersey came to an end and that's expected to offer some guidance for others who are examining the same issues.

In November, the New Jersey Supreme Court eased the restrictions on lawyers being able to mention their inclusion in Super Lawyers, Best Lawyers in America, or Martindale-Hubbell AV rankings. That revision to Rule of Professional Conduct 7.1(a)(3) requires lawyers to include in ads the name of the rating service and a disclaimer saying, "No aspect of this advertisement has been approved by the Supreme Court." State justices also added a comment advising attorneys to read carefully before touting their selections, in order to make sure the ads aren't misleading. It says the conferring service has to have made an inquiry into the attorney's fitness, the honor can't be given for a price, and that the ads must describe the methodology, or at least tell the reader where the description can be found.

Super Lawyers mostly praised the ruling that put New Jersey in line with many other states, and others are expected to follow suit - including Indiana.

Hoosier homefront

The Indiana State Bar Association's legal ethics committee has been discussing and studying this issue for years, according to past and present chairs and committee members.

"A couple of issues that seem to divide the bar on this topic is that the designation is misleading in that it is more of a 'social' type of designation rather than a true 'professional' designation such as a Martindale Hubbell rating," said Westfield attorney John Conlon, who led the ethics committee years ago and first started investigating the topic after a former bar association president asked about it. "Some also feel that attorneys from the bigger, urban firms tend to stuff the ballot box and that it is very hard for a lawyer in a smaller firm to get to be a Super Lawyer. These are all issues that have to be kept in mind, but might not necessarily fall into something rules can address."

Indiana's current professional conduct rules offer only generalities about attorney advertising and little guidance for lawyers about Super Lawyer designations for marketing. Specifically, the rules prohibit "self-laudatory" advertising, and anything that contains and expresses or implies prediction of future success.

But the Indiana Supreme Court is considering a proposed rule change that would more specifically address the issue. Public comment was open until March 1 on a proposed change to Rule 7.2, which a comment notes applies more specifically to the public communications of lawyers rather than private communications made or supported by attorneys. The method of communication is not as important as the size and nature of the audience that could receive the communication, according to the comment.

Attorney and Bloomington law professor Seth Lahn, a member of the ISBA's legal ethics committee studying this issue, said he isn't sure if the rule change would apply to specific practices such as Super Lawyer advertising.

"My interpretation is that it's designed to liberalize or expand the permissible field, to make clearer and modernize some of the rules about attorney advertising," he said. "The touchstone is ensuring that the public isn't misled, not on particular practices."

Lahn said a testimonial or endorsement could be interpreted to apply to Super Lawyers, but it's also possible to interpret the rule so that a third-party claim is permissible if the lawyer is simply restating a factual claim that's verifiable. The issue raises interesting questions, but he isn't sure if there's anything to indicate whether this is a potential problem for Indiana. Lahn said in his 12 years on the ethics committee, he's never been asked by any attorney about their proposed Super Lawyer or similar designation being an ethical issue.

Still, he recognizes that the lawyer advertising area is constantly changing and anything's possible.

This is reflective of the changing of the global legal market, and the pace of change in the legal economy and how lawyers market themselves," he said. "There are a lot of different views on how this is problematic, but there is no consensus right now short of that we aren't categorically able to say it's off limits."

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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