Forget Senior Counsel, let's try "Super Lawyer"

New Jersey tried to stamp-out out “self-aggrandising” titles such as “Super Lawyer”. Actually the “Super Lawyer” selection process was superior to those that are used here to appoint new Senior Counsel

WHEN Daniel Webster was advised not to attempt to enter the legal profession, because it was already overcrowded, he famously replied:

“There’s always room at the top.”

Those already at the top tend to disagree. They create restrictive trade practices to keep the newcomers under control. In the public interest, of course, although best sold to the public as “legal ethics”.

Chapter Two of Jerrold Auerbach’s book Unequal Justice is entitled “A Stratified Profession”. He explains how “canons” of “legal ethics” were devised to keep those at the top on top.

Advertising and solicitation, for example, became unethical, while the big time corporate lawyer would never need fear disciplinary scrutiny, especially in relation to fees:

“These canons condemned the acquisitive urge (especially among lawyers who earned least), consigned the lawyer to his office to await a client who wandered by with a case that assured fame and fortune, and attributed success (hardly unrelated in American society to monetary accumulation) to good character. The lower the fee a lawyer earned, and the less discreet he was in pursuit of it, the more likely it was that his ‘money getting’ activities would be scrutinised and criticised. The canons especially impeded those lawyers who worked in a highly competitive urban market with a transient clientele.”

While the profession must portray itself as one happy family, the Melburnian corporate lawyer is quite content to consign the country conveyancer to oblivion, especially if ferocious competition at the retail consumer level will distract from its absence at the high-powered corporate lawyer level.

Those who earn the most intend to stay earning the most, by devices that are nonetheless in the best interests of consumers and taxpayers, of course.

Consider, for example, the device of Senior Counsel/Queen’s Counsel. Either it is designed to assist consumers to select the best barrister for their case as a form of “quality mark”, or it is designed to help and reward the fat cats of the profession.

Barns: the trade union decision who to annointI believe it is significant that it is the fat cats of the profession who do the appointing. Greg Barns (snap), a Hobart barrister who makes frequent appearances in the media says …

“in New South Wales, one submits an application to become a Senior Counsel to the New South Wales Bar Association, which is effectively the trade union that runs the legal profession for barristers in New South Wales. There’s then a Bar Selection Committee, which says that it consults widely with judges and solicitors and fellow barristers, and then comes up with a series of names that it recommends be appointed as senior counsel.”

Interestingly, the Queensland criteria say:

“Senior Counsel must have demonstrated a commitment to the advancement of justice and the profession, for example, through the provision of assistance and service to the Bar Association.”

Inserting the words “Senior Counsel” after one’s name (once one is permitted to) could be seen as a form of advertising.

What would happen if a private organisation started grading selected practising lawyers as “Best Lawyers” or “Super Lawyers” and lawyers who have not been gonged SC started sticking SL after their names?

Earlier this year a committee appointed by the New Jersey Supreme Court ruled that directories awarding “Super Lawyer” status violate the prohibition against lawyer advertisements that are comparative in nature or that are likely to create an unjustified expectation about results (there are similar restrictions in Australia).

The court noted:

“These self-aggrandizing titles have the potential to lead an unwary consumer to believe that the lawyers so described are, by virtue of this manufactured title, superior to their colleagues who practice in the same areas of law… When a potential client reads such advertising and considers hiring a ‘super’ attorney, or the ‘best’ attorney, the superlative designation induces the client to feel that the results that can be achieved by this attorney are likely to surpass those that can be achieved by a mere ‘ordinary’ attorney. This simplistic use of a media-generated sound bite title clearly has the capacity to materially mislead the public.”

Dear me. What a terrible state of affairs.

It turned out that the Super Lawyer people actually surveyed lawyers. The court’s response was to condemn all lawyers who took part in such a survey:

“Lastly, the Committee has reviewed the survey sent to New Jersey lawyers that supports the selection of attorneys for the ‘Super Lawyer’ designation. It is the Committee’s position that participation in a survey of this type, where an attorney knows or reasonably should know that the survey would lead to a descriptive label that is inherently comparative such as ‘Super Lawyer’ or ‘Best Lawyer’, is inappropriate.”

Such inappropriate behaviour in future, one suspects, may well be regarded as a disciplinary offence in itself. We can’t have lawyers assisting non-lawyers who are trying to ensure the public is better informed about the lawyer market.

The court also said:

“The methodology used by the media corporation to award the ‘Super Lawyer’ designation is unclear. Although the designations are purportedly based in part on a poll of practicing New Jersey attorneys and input from non-attorneys, then weighted in accordance with a non-disclosed system established by the publishers, Law & Politics and/or its sister corporation Key Professional Media, they do not make available the specific methodology for objective review or analysis.”

The committee effectively rubbished an appointment methodology for “Super Lawyer” which was perhaps just as good as, if not better than, the ones we have for SC. Actually, The Wall Street Journal has published the methodology and it puts the NSW bar “protocol” to shame.

The judiciary (in the US and Australia) is in an unbeatable position as regards accreditation competitors, especially since no one can really define what makes a good lawyer. “We don’t have to give reasons.” (And they don’t.) “You do.” 

[Two years later, the New Jersey Supreme Court vacated its Committee on Attorney Advertising's Opinion 39, which found that advertising inclusion in lists of the state's “super” or “best” lawyers misleads consumers. See here]