Oregon State Bar Bulletin — OCTOBER 2007
Parting Thoughts
A Super Standard of Care?
By Daniel C. Re

Key Professional Media, Inc. (Media) is the publisher of the Super Lawyers magazine. Media has developed the concept of "super lawyers," and it represents its super lawyers as being "Seriously Outstanding — The Top 5 Percent." While some may think that it would be very difficult to identify the top five percent of the attorneys in any given state, Media claims that it has developed a process that does just that. See the website, www.superlawyers.com, and the letter from Prof. Gillers found at www.superlawyersfacts.com.

Not only does Media identify a state’s super lawyers; it goes to great lengths to market them so that they will stand out in a crowd. Super Lawyers magazine reaches more than 13 million readers a year, and Media places articles about these lawyers in special advertising sections of leading city and regional magazines and newspapers through the county, which reach hundreds of thousands of consumers. Millions of consumers have access to the magazine’s website. Prof. Gillers notes in his letter that "super" as used in "super lawyer" would probably be understood by consumers to mean a lawyer of superior quality.

Media states that before publishing a person as a super lawyer, the candidate must confirm certain facts and verify all published information. If true, this puts lawyers on notice of their super lawyer candidacy and gives them the opportunity to withdraw from consideration by not providing the requested information.

Advertising a person’s special skills and qualifications is generally a permissible exercise of commercial speech, as long as it is not false, deceptive or misleading. Ibanez v. Florida Dep’t of Business and Prof. Reg., 512 US 136 (1994). The exercise of that right, however, imposes additional burdens on the super lawyer, his or her shareholders or partners and firm.

A lawyer who represents that he or she has greater competence than normally demonstrated by other lawyers undertaking similar matters is held to a higher standard. Comment d. §52, Restatement 3d of the Law Governing Lawyers. Such representations may be made directly through an advertisement or assertion on a letterhead by the lawyer and they may be made indirectly, on behalf of the lawyer. Id. See also Comment d. to Section 299A, Restatement 2d, Torts, which recognizes that a professional may represent that he or she has superior skill or knowledge beyond that common to the profession but, in doing so, the professional incurs an obligation to have and to exercise the represented skill and knowledge.

If a client retains a super lawyer in reliance upon the representation of the attorney’s superior quality, and if the results of the super lawyer’s representation of that client do not exceed the normal standard, the client could have a claim against the super lawyer. In addition to liability for negligence, the super lawyer may also have liability under Oregon’s Unlawful Trade Practices Act if less than superior representation is given for personal, family or household purposes. See ORS 646.608(e) and (g), ORS 646.638(3) and Roach v. Mead, 301 Or 383 (1986).

The super lawyer is not the only person potentially responsible for any resulting damages that may occur from less than superior representation. Shareholders and partners of a super lawyer have joint and several liability under ORS 58.185(4) and (5) and ORS 67.105(4), and the super lawyer’s firm also has liability under ORS 58.185(10) and ORS 67.100.

While there are no Oregon cases specifically addressing these issues regarding lawyers at this time, the introduction of super lawyer advertising in Oregon makes such cases inevitable. Like in the movie "Field of Dreams," where it was said, "If you build it, they will come," if a lawyer permits himself or herself to be advertised as having superior qualities, clients will go to the lawyer based on that representation. In such cases, if the super lawyer fails to achieve superior results another Hollywood phrase would be appropriate for the super lawyer: "Be Afraid, Be very afraid."

ABOUT THE AUTHOR
Daniel C. Re lives in Bend, Ore., where he has been practicing law since 1981.

© 2007 Daniel C. Re


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