|Oregon State Bar Bulletin DECEMBER 2007|
Justice Stevens Knew
Over 25 years ago, as a student at Northwestern University, I was privileged to meet Justice John Paul Stevens when he judged the final round of our appellate moot court competition. The entire student body and faculty turned out. Our team had been assigned a hopelessly weak position, which we circumvented by taking arguably disingenuous liberties with the loose phrasing of the complicated certiorari question upon which the hypothetical court had granted review. None of the volunteer judges noticed our artifice during the preliminary rounds.
Justice Stevens did. He immediately challenged whether our argument fell legitimately within the cert question. I gave our contrived response and waited nervously. He took off his glasses, gave me a sharp look and asked whether my side, as the petitioner on review, might have drafted a clearer question. I readily acknowledged it could have. Staying in character, the justice then pointedly asked when I had come on the case, wryly offering a way off the hook. I immediately answered that it was after cert had already been granted, effectively deflecting responsibility onto the Moot Court Committee where it belonged. Justice Stevens sat back and smiled conspiratorially while the audience chuckled in sympathetic relief, clearly appreciating exactly what had just occurred.
To this day, I suspect that exchange, and not the argument on the merits, prompted his ensuing vote in our favor. More importantly, in that one brief interaction, he exhibited to those present the incisive intellect, good-natured sense of humor and political insight that made him such an inspiring and effective jurist in the decades thereafter.
Super Lawyers Responds
In "A Super Standard of Care?" Oregon State Bar Bulletin — October 2007, Daniel C. Re concocts a novel, yet ridiculous, theory of potential liability for lawyers selected for inclusion in Super Lawyers.
His "Super Standard of Care" theory goes like this: If a client hires an attorney based on the attorney’s representation that she has been selected for inclusion in Super Lawyers, the attorney is now held to a "super standard of care." According to Mr. Re, if "the results of the super lawyer’s (sic) representation do not exceed the normal standard," the lawyer may be subject to liability. And not only that, the lawyer’s partner may also be held liable!
But why stop with the Super Lawyers? What about lawyers who mention other accolades and distinctions in their marketing?
Should a reference to an AV rating require this "pre-eminent" lawyer to achieve "grade A verdicts"? Is a state-certified trial specialist now required to achieve "certifiably special" results if she includes that fact in her ad?
Following Mr. Re’s logic, these lawyers are holding themselves out as somehow superior to other lawyers who lack these credentials. (Otherwise, why mention them at all?) Shouldn’t they also be held to a higher standard of care?
Mr. Re’s analysis gets derailed in part because he consistently misuses our registered trademark, Super Lawyers. We prohibit advertisers from using the term to refer to themselves or other lawyers — Super Lawyers is a publication, not a title. We also require that it be used in its plural form. For example, it is improper to say, "Mr. Smith is a Super Lawyer." It is proper to say, "Mr. Smith was selected for inclusion in Super Lawyers 2008."
Using the term in its proper form makes it clear to consumers that Mr. Smith is not describing himself as being "super." Rather, he is referring to an honor awarded by a third-party publisher.
One of the predicates of Mr. Re’s theory of liability is that "the client retains the lawyer in reliance upon the representation of the attorney’s superior quality." (emphasis added). A lawyer stating the truthful, verifiable fact that a third party has awarded them the Super Lawyers honor is not tantamount to a self-anointed claim of superiority.
Mr. Re correctly notes that there is no case law addressing this notion of a super standard of care. There’s no case law, because there’s no plausible cause of action: A truthful statement regarding a bona fide rating does not expose a lawyer to a higher standard of care.
If Mr. Re’s theory prevailed, prudent lawyers would cleanse their marketing materials of any mention of honors and accomplishments. In the end, consumers would have less information upon which to make their choices.
William C. White, publisher,
Law & Politics and Super Lawyers magazines
Delighted to Read of Bar Members’ Contributions
It was a delight to read the article in the most recent issue of the Bulletin on the outstanding work being done in Afghanistan by OSB members. As a now retired attorney and the father of a former JAG officer, I was proud to see the continuing contribution these officers are making to our mission in that part of the world. Please continue to present articles showing the ongoing commitment of the members of the Oregon State Bar to the pursuit of justice, no matter where it takes them. Thank you.
Ronald G. Talney,
Thumbs Up for the Writing Column
I appreciate Suzanne Rowe’s regular contributions to the Bulletin on the details of writing correctly for clear communications. Her articles are illuminating as well as entertaining. I can think of few topics that would be more universally relevant to all members of the bar in our professional roles as advocates, advisers and decision-makers. Although there was little opportunity for me to make a living as a poet, I continue to be grateful that being a lawyer has given me a means to write for a living. Thanks for supplying a gentle reminder to do my job well.