Oregon State Bar Bulletin — AUGUST 2012



To Portland attorney Greg Kafoury’s clients, he is a super lawyer who obtains super jury verdicts.

One million dollars, including punitive damages, for an $11/hour airport employee who was assaulted by a wealthy neurosurgeon to whom she had written a traffic ticket. More than $1 million for a blind man who suffered permanent brain damage after he fell into an open manhole. More than $2 million for a Hawaiian stevedore who was nearly beaten to death by a longshoremen’s union “enforcer.” And more than $3.25 million for a female patient who was sexually assaulted by an ambulance-company employee while being transported to a hospital.

And yet Kafoury is not a Super Lawyer. Or, as Super Lawyers’ co-founder would put it, he was not “…selected for inclusion in Super Lawyers…”

“According to Bill Barton, only he has more seven-figure verdicts in Oregon than I do,” says Kafoury, referring to the Newport lawyer who is listed in the “Top 10 Oregon Super Lawyers 2012.”

“It is,” Kafoury says bemusedly, “all a mystery to me how they do these things.”

Welcome to the erratic — and expanding — world of lawyer-rating systems. Where Clatsop County District Attorney Josh Marquis and Portland-based federal public defender Steve Wax both appear on Super Lawyers’ website as “Super Lawyers,” even though that same site says it doesn’t include lawyers who, like them, can’t be hired by the public. Where former President Abraham Lincoln is included on AVVO’s website even though he is deceased (a fact the website acknowledges, along with the fact that it’s been 176 years since he was first licensed to practice law).

Martindale-Hubbell. Best Lawyers. Super Lawyers. AVVO. Who benefits from these or other such entities that rate lawyers? The almost exclusively private-practice lawyers who appear on their lists? Consumers? Or mainly the entities themselves, which sell advertising and other marketing tools to the lawyers they rate and list for free? (Although the entities don’t fall into the “I’ll advertise you if you send me $1,000” category, they are indeed financed by the advertisements and promotional goods that rated lawyers turn around and buy from them through “marketing tool kits,” “custom publications” opportunities and “online stores,” for instance.)

“I think these ratings are important things to have on your resume,” says Portland lawyer Jeff Batchelor, who has Martindale-Hubbell’s highest AV rating. He was named Best Lawyers’ Portland’s Appellate Practice Lawyer of the Year for 2012, has been in Super Lawyers every year since its inception in Oregon and is rated “superb” by AVVO. “But so many of us are AV rated and in Super Lawyers that I don’t think it sets me apart from other lawyers.”

“I think they’re gaining traction over time,” Batchelor says of rating entities, not one of which he mentions in the advertisement that he runs in theBulletin, although they are on his website.

“I’ve been at this 40-plus years,” observes Batchelor. “Back in the day, if you were not Martindale-Hubbell AV-rated, that wasn’t a good thing. Now I feel that Best Lawyers and Super Lawyers are getting some sort of traction: you don’t want to not be on those lists. Best Lawyers and Super Lawyers are somewhat of a popularity contest. I don’t mean that in a pejorative way.”

“I suppose they are another tool for consumers, and we, as lawyers, are consumers, too,” he concludes. “I don’t have strong views about them. But I know some people do.”

They’re Everywhere, They’re Everywhere!
Why does it suddenly seem like lawyer-rating services are everywhere?

“The Internet and other forms of technology make it really easy to access your public and have them respond to questionnaires,” says Cynthia-Lou Coleman, chair of the Department of Communication at Portland State University. “Sorry, I’m a cynic. Just because we can do something doesn’t mean it’s a good thing. I’m a little disappointed that people want to read this stuff. But they also want to look at accidents.”

Coleman says that lawyers, like Kafoury, may not pay too much attention to how a company does its ratings.

Lawyer Eli D. Stutsman, who does appellate litigation in the tri-county area, concurs.

“I have never taken the time necessary to understand the various lawyer-rating systems,” says Stutsman, who has an AV rating on Martindale-Hubbell. “I recognize Martindale-Hubbell’s rating system, but I am puzzled by Super Lawyers, and do not know AVVO.”

Coleman says that “if a rating is positive, it probably doesn’t matter, to the lawyer, how it was done. If it’s negative, he probably will want to look at the methodology.”

Portland lawyer Chuck Corrigan is a case in point.

“When I got a BV rating,” he says of Martindale-Hubbell’s second-tier rating, “I thought Martindale-Hubbell was the stupidest thing in the world. I appealed. When I got an AV rating, I thought it was the greatest thing in the world.”

Coleman says that ideally, a rating would be based on a scientific sample, both of the lawyers to be rated and of the persons rating them.

“To do a scientific sample,” Coleman says, “you have to do it in a way that reflects your population of interest. Who are you interested in? And be aware that people who respond to surveys tend to be people with strong opinions rather than no opinion.”

The bottom line, says Coleman, is that anyone thinking about relying on such a rating should ask himself some basic questions: “Who’s doing the rating, who’s paying for it and what’s their vested interest in it?”

Lynn Kahle, head of the Department of Marketing at the University of Oregon, agrees.

“The reason consumers like lists is they provide information about something they really may not understand,” says Kahle, whose areas of interest include consumer behavior. “Any information you can get from other people who may be experts is appreciated. If you are hiring someone, you often want to hire the best, as opposed to the cheapest. But the cheapest you can find by getting bids.”

“The problem, of course,” he continues, “is who is doing the rating. If it’s online, it may not be honest people, or it may be competitors or pranksters doing less-than-honest ratings. Some rating systems are buy-in ratings: ‘I’ll advertise you if you send me $1,000.’ If I see a list of ‘best of something,’ I’m a little bit skeptical. It may be consumers attempting to help other consumers, but it may be a deliberate attempt at influencing consumers with irrelevant or inaccurate information.”

Kahle’s concerns already have been born out: In July, Yelp, which posts on-line reviews of venues and services, uncovered what it dubbed a “review-swapping ring” comprising members of a Los Angeles-area business networking group.

Yelp said it was a coordinated effort by members to boost their ratings by posting glowing reviews of one another’s businesses, according to a San Francisco-based article re-published in The Oregonian.

“Such backslapping highlights a major challenge for Yelp and other online review services: how to keep business owners from gaming a system that by its nature is open to manipulation,” the article reported. “…[ C]oncerns are growing about the authenticity of online ratings. People making comments often don’t give their full or real names; others don’t disclose their relationship with the business they’re reviewing.” (In fact, lawyer-rating services that publish peer-review ratings deliberately try to protect the identity of peer reviewers.) “That can allow business owners to pad their scores with rosy testimonials… Others have trashed rivals with negative comments.”

“…[P]eer reviews carry tremendous weight with consumers,” the article went on. “Consumer feedback on such sites as Yelp, Amazon.com and TripAdvisor have changed the way people research and shop for products and services. For many people, such comments are the first thing to check… For businesses, this kind of marketing is powerful — and cheap. They can reach thousands of potential new clients without spending a dime.”

The authenticity of peer reviews is not the only area in which the ethical implications of lawyer ratings has been raised.

“It was very controversial, from an ethics point of view, in 2006,” says Oregon State Bar general counsel Helen Hierschbiel, “when the New Jersey Committee on Attorney Advertising said the use of the superlative ‘Super Lawyer’ or ‘Best Lawyer in America’ was inherently comparative and therefore violated that state’s Rule of Professional Conduct against advertisements that are comparative in nature. Their supreme court said no.”

“Several states have issued ethics opinions regarding the propriety of lawyers referring to their listing in Super Lawyers,” continues Hierschbiel. “The question is usually whether use of the term ‘Super Lawyer’ to describe a lawyer ‘compares the quality of the lawyer’s or the lawyer’s firm’s services with the quality of the services of other lawyers as prohibited by ORPC 7.1(a)(3). Most state ethics committees that have considered the issue have determined that lawyers may refer to their listing in Super Lawyers, assuming of course, that they are in fact listed in Super Lawyers. The Oregon State Bar Legal Ethics Committee has not weighed in on the issue.”

But, while Super Lawyers’ website says that “Bar associations and courts across the country have recognized the legitimacy of… (its) selection process,” Bulletin editor Paul Nickell says that “I am not aware that Super Lawyers is ‘recognized’ by any state bar.”

“That would surprise me, if true,” he says. “From what I have read, almost every state bar publication has adopted pretty much the same rule as ours, without ever consulting one another.”

That rule is that theBulletin does not run what it describes as “…stand-alone news items that announce the winners of another publication’s “Best of...” type lists,” although lawyers are free to mention them in paid advertisements.

“The policy on these awards, recognitions, etc., is not an Oregon State Bar policy, but an internal Bulletin policy,” says Nickell. “What we do instead is emphasize the OSB’s own awards and those of non-profit organizations and general publications such as The Daily Journal of Commerce and The Business Journal.”

The Granddaddy of Them All
In the beginning was the word, and the word was — Martindale-Hubbell.

Or, to be more accurate, James B. Martindale, a Midwestern lawyer and businessman who, in 1868, first published The Martindale Directory for the purpose of “furnishing to lawyers, bankers, wholesale merchants, manufacturers, real estate agents, and all others … the address of one reliable law firm, one reliable bank, and one reliable real estate office in every city in the United States...”

By 1896, the directory included the basic information that still appears in its “Practice Profile” listings in print and online, as well as ratings. In 1930, Martindale’s company bought the publishing rights to Hubbell’s Legal Directory, which included a selective list of lawyers and firms. The first edition of the Martindale-Hubbell Law Directory was produced, as a two-volume set, in 1931; the listings have been owned and published by the online giant Reed Elsevier LexisNexis since 1989.

“We consider our Martindale Hubbell ratings to be the hallmark of the legal industry,” says Carlton Dyce, vice president of lawyer ratings for Martindale-Hubbell. “We don’t consider ourselves to be rating lawyers as much as mirroring the perceptions of the legal community.”

Dyce says that Martindale-Hubbell accomplishes this by randomly selecting lawyers who have been admitted to practice for at least three years from the approximately 1 million lawyers that are in practice nationwide and on the company’s data base.

“We are objective,” he says of the rating selection process. “Some ratings systems are set up like clubs where the only way you get in is a member of that club identifies you as being worthy to join the club. We rate large-firm attorneys, we rate small-firm attorneys. You could be a solo practitioner in Walla Walla Wash.”

Dyce says the company then randomly selects legal and judicial references in the chosen lawyers’ practice and geographic areas.

“We believe lawyers are in the best position to assess other lawyers,” he says. “DUI attorneys in Chicago know other DUI attorneys in Chicago; PI lawyers in Seattle know other PI lawyers in Seattle. For corporate counsel, it’s more difficult for them to have readily available peer references, but that doesn’t mean it can’t be done. A lot of them have been in private practice.”

Dyce says Martindale-Hubbell sends its reviewers a confidential electronic survey and, typically, two follow-ups if no response is received.

“We get a decent response rate,” says Dyce, who declines to be more specific. “The difficulty we’re finding is that, with the advent of spam filters and fire walls, it slows down getting the surveys to the reviewers.”

A threshold number of responses is required for a lawyer to receive a rating. Those lawyers who meet the company’s “very high” criteria for general ethical standards can proceed to the next step in the ratings process, legal ability, which is based on performance in five key areas.

Martindale-Hubbell’s highest rating is “AV Preeminent,” followed by “BV Distinguished” and “Rated.”

“With the Martindale Hubbell ratings, we reach out to the legal community and don’t add anything else to their feedback and responses,” Dyce says of such a rating.

Nonetheless, according to the company’s website, lawyers who have been randomly selected for rating can, after the random-review process is completed, submit peer references themselves. Lawyers also may request to be reviewed by nominating their own peer references, which “…will be incorporated into the process along with other reviewers who are randomly selected.”

But, since lawyers requesting review must submit at least 18 lawyer or judge references, all of them from outside their own organizations and no more than two from any one organization, the likelihood of any lawyer who practices outside of a major metropolitan area successfully seeking review seems highly unlikely.

Fortunately, Martindale-Hubbell’s website says, “The absence of a rating should not be construed as unfavorable.”

“Some lawyers request not to have any rating published,” it explains, “while others may not be rated due to the length of time in practice, the size of the bar, or other reasons unrelated to their legal abilities or ethical standards, such as a legal practice that involves few peers.… If a firm/lawyer chooses not to display the Martindale-Hubbell Peer Review Ratings, all numeric ratings and feedback will be removed from display and language will appear that states ‘Ratings Not Shown.’ ”

Dyce says that while there always have been state lists of lawyers, “In terms of ratings, we started seeing the emergence of other ratings systems 30-40 years ago.”

“Best Lawyers, Super Lawyers and Chambers (Chambers and Partners, which is based in the United Kingdom but provides worldwide guides to lawyers) are next to Martindale-Hubbell in terms of longevity,” says Dyce. “What they do is provide rankings for larger law markets. Super Lawyers and Best Lawyers are positioned mostly for consumers. Martindale-Hubbell is for all segments.”

“The Internet opened up a lot of possibilities,” he says of Martindale-Hubbell’s increasing number of competitors. “Just like everything else, when folks see a good thing, they try to replicate it. Replication is the best form of flattery.”

You Are the Best!
Best Lawyers of America, which bills itself on its website as “the oldest and most highly respected peer review guide in the legal profession worldwide” — take that, Martindale-Hubbell — actually was started in 1981 by two Harvard Law School graduates. Both briefly worked as lawyers before turning to writing — their co-authored book, Jackson Pollock: An American Saga, won the Pulitzer Prize for Biography in 1991 — and publishing.

The listings, which are owned by Woodward/White, Inc., with offices in South Carolina and New York, are funded by Best Lawyers’ custom publications and online store.

Although a representative of Best Lawyers could not be reached for comment, its website says that inclusion in Best Lawyers is determined by having lawyers who are on the current list vote on other lawyers, in their geographic and practice areas, who have been nominated by someone. (Lawyers are asked to not nominate themselves, but are not barred from doing so.)

All nominees must be in private practice.

“Clients, other lawyers and marketing teams are the primary sources of nominations,” the website says. “A large and open voting pool introduces a host of potential distortions to the selection process, including collusion between lawyers to secure votes.”

The voters are asked one question: “If you were unable to take a case yourself, how likely would you to be to refer it to this nominee?” They are asked to give a numerical grade between 5 (“would definitely refer”) and 1 (“would definitely not refer”).

The votes then are averaged, with “votes from partners within a nominee’s own firm … weighed appropriately, and eccentric votes — far better or far worse than the others, … tagged for further review.” Selected lawyers are then checked for bar standing and notified.

“Ultimately,” the website acknowledges, “a lawyer’s inclusion on these lists is based on the subjective judgments of his or her fellow attorneys. While it is true that the lists may at times disproportionately reward visibility or popularity, we remain confident … that the breadth of our survey, the candor of our respondents and the sophistication of our polling methodology largely correct for any biases…”

You are Just Super!
When Minnesota Law & Politics magazine publisher William White and editor Steve Kaplan sold their company’s then-20-year-old publication Super Lawyers to Thomson Reuter in 2010, White said that “[t]he transaction is the ultimate validation of Super Lawyers as the leading lawyer rating service in the country.”

The company, which now rates lawyers in all 50 states plus Washington, D.C., did not begin doing so in Oregon until 2006.

It now publishes annual listings of Oregon’s Super Lawyers, The Top 50 Oregon Super Lawyers, The Top 10 Oregon Super Lawyers and The Top 25 Women Oregon Super Lawyers.

Its ratings, according to its website, are based on attorneys who have been: 1) nominated by other attorneys who personally have seen them in action; and 2) vetted by the company’s research staff. The surviving candidates are then grouped according to their primary areas of practice. The candidates in each practice area with the highest point totals from steps one and two are then provided a list of candidates from their practice area to review and rate on a scale from 1 to 10.

For the final selection, the candidates are grouped into four firm-size categories, with those with the highest point totals selected as Super Lawyers. “This means,” the website says, that “solo and small firm lawyers are compared with other solo and small firm attorneys, and large firm lawyers compete with other large firm lawyers. Five percent of the total lawyers in the state are selected for inclusion in Super Lawyers.”

“Ultimately, it’s a point system,” says publisher Cindy Larson. “It’s not a club that once you’re in, you’re in for good. As soon as the magazine with this year’s selections hits your desk, nominations are open for next year.”

The magazine — there also is a website with listings, featured articles about listed lawyers and paid advertising — has a “rolling” publication date that varies by state. In Oregon, it’s August. Nominations for Oregon Super Lawyers 2013 opened July 10 and will close Dec. 11, with notices to selected attorneys to be mailed in February 2013 and their profiles and any advertising copy due back in April.

Larson says that Super Lawyers has “… a very strict Chinese wall” between listings and advertising,” with lawyers not offered the “chance to advertise” until the ratings process is complete.

Super Lawyers also pays to publish its lists in what Larson calls “…city and regional lifestyle magazines: in Oregon, Portland Monthly and The Oregonian. “ (As Portland Monthly editor-in-chief Randy Gragg put it, “Our lawyers list is an advertorial project.”)

Larson calls Super Lawyers “…a great referral source lawyer-to-lawyer. It’s also a great place for a consumer to start his quest.”

But the bottom line, she says, is, “You have to do your own homework.”

Is it Good to be Super?
Portland lawyer Corrigan, who runs a paid advertisement in theBulletin to promote the mediation and arbitration aspect of his practice, includes his “Oregon Super Lawyers 2011” designation in the advertisement.

“Because Super Lawyers focuses on practice areas, it seems to be a better marketing mechanism,” says Corrigan, who doesn’t include his Martindale-Hubbell AV rating. “My world is other lawyers.”

“I didn’t make it in Super Lawyers 2012,” he says. “I’m of mixed mind about that. I’m not disappointed. I could give you five, if not 10, names that have not appeared on Super Lawyers’ alternative dispute resolution list that are as good as, if not better than, most of the people who have been on the list, including me. There are some real stars who never get a whiff of mention. I don’t think there are any bad lawyers in Super Lawyers, but if you’ve done litigation in Portland, there are obvious omissions. They obviously don’t have their finger on the pulse of the Portland community.”

But there are other Oregon lawyers and law firms, in Portland and elsewhere, who are happy to make the list.

For example, when Super Lawyers announced its 2012 Oregon designees in July, the Portland firm of Cosgrave Vergeer Kester, among other firms with employees “selected for inclusion in Super Lawyers,” put out a press release.

Karen Olson, the firm’s marketing coordinator, says that “Sometimes clients don’t want press releases to publicize individual successful cases. There’s a lot of confidentiality involved.”

As a result, Olson says, her firm “…relies on professional recognition as one of the ways to help set our attorneys apart in the minds of legal services consumers.”

And Clatsop County D.A. Marquis, who was rated a “Super Lawyer” in 2007 and 2008, says that while “there’s no reason we government lawyers would seek to be rated, because the main reason is to get publicity to get clients, it would be disingenuous of a trial lawyer to say we don’t want or like publicity.”

“I like the idea that Super Lawyers would actually consider government lawyers,” Marquis says. “Some of the very best attorneys I know work for government, such as (Assistant U.S. Attorney Byron Chatfield (of Medford).”

Unfortunately, Super Lawyers — while still listing Marquis and federal public defender Steve Wax on its website — no longer includes non-private practice attorneys such as prosecutors, public defenders and in-house counsel. “Prior to 2011,” says publisher Larson, “we did select non-private attorneys, so that may be a legacy from a previous selection.”

You are So AVVO-rated; is That a Good Thing?
If Super Lawyers is a club that some lawyers find hard to get into, AVVO, the newest service to rate lawyers, is the opposite: a listing that you can’t escape, even, in some cases, by dying.

That’s because the Seattle-based company — named for the Italian word for lawyer, avvocato — lists 95 percent of all lawyers in the United States on its web site.

“Where we miss people is [in] a handful of states where we can’t get records because of public records laws concerning attorney records,” says Josh King, AVVO’s general counsel and vice president of business development.

“We create a profile if the state bar contains information,” he says.” We’ll have profiles of dead lawyers, like Abraham Lincoln. We usually go to attorneys’ websites, know where they went to school, awards received, etc. We try to find out as much information as we can.”

“If all we have are licensing records,” says King, “the rating is either ‘concern’ or ‘no concern.’ ” Currently, he says about two-thirds of the 95 percent of American lawyers on the website are rated in that manner: the other one-third have numerical ratings that range from 10 — “superb” — to 1, “extreme caution.”

“Our No. 1 mission is to make the site useful to consumers,” King says. “We can’t be a shill to every attorney who wants to be on the site. That’s the fundamental difference between us and the others.”

What that means is that, while lawyers can “claim” their AVVO profiles by submitting information themselves, they can’t get other information, including client reviews, deleted.

“I never heard of AVVO until about two years ago,” says Portland lawyer Jim Case, who — like the vast majority of lawyers nationwide — has an AVVO rating of “no concern.” “It is my understanding that people can post anonymous opinions, comments or ratings and the attorney’s only alternative is to reply to the comment without the ability to attribute the ‘complaint’ to a specific client and thus be in a position to fully and accurately respond. I also am aware of attorneys who requested that their profiles be deleted, to which the response was emphatically ‘no.’ ”

King acknowledges that “We have a pretty consistent low level of grumbling because attorneys can’t control all of the information in their profiles and we won’t delete profiles.”

“Attorneys live in fear of negative client feedback,” he says. “But about 85 percent of our client ratings are positive. If we have any internal concerns, it’s that our ratings are too positive.”

Regardless of any grumbling, AVVO apparently is doing well. Founded by a Seattle native/Expedia.com executive, it launched its lawyer-rating website in 2007, funded by $23 million in venture capital. In 2009, it began selling advertising; in 2010 it added ratings of doctors and, this year, of dentists. Advertising now is paying for the lawyer ratings.

 

ABOUT THE AUTHOR
Janine Robben (AVVO rating: “no concerns.”) has been a member of the Oregon State Bar since 1980 and is a frequent contributor to the Bulletin.

© 2012 Janine Robben


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