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Super Lawyers Unmasked

IN THE 17 years since its birth, Super Lawyers has grown from a four-color flight of fancy into a multimillion-dollar empire. Started on a whim by a two-man team in Minneapolis, the rapidly expanding operation now reaches 47 states, with plans to conquer the rest of the U.S. by next year. It's a simple concept, really: Find the best attorneys in town, then present the list to all the regular Joes and Janes who, in this litigation-happy society, can't help but need legal services.

With tens of thousands of attorneys on its roster—and many more clamoring to get on the list—Super Lawyers is in legal circles the equivalent of making the All-Star Team. And many are smitten by the self-congratulations. They shell out thousands of dollars for ads in Super Lawyers supplements running in prestigious magazines and newspapers across the country—from Los Angeles magazine to the New York Times.

But as the list has grown, so has criticism of it. In New Jersey, the Supreme Court is threatening to ban Super Lawyers, charging that the name misleads the public and breaks the state's advertising rules.

Even in Minnesota, where the list began, Super Lawyers has come under fire. Attorneys—some named to the list, others not—say that the methodology is suspect. They claim that big firms frequently pad their statistics by recruiting lawyers to nominate their colleagues, and that the list is more a measure of a lawyer's networking skills than of courtroom performance. Although Super Lawyers purports to identify the top 5 percent of attorneys in the state, the poll that is a key determinate of who makes the list counts the opinion of less than 10 percent of the state's legal professionals.

Far from a valuable consumer service, critics charge, Super Lawyers is an ad-revenue-generating, magazine-selling gimmick. Now some are wondering: Can Super Lawyers survive its stunning success?

 

HATRED OF LAWYERS is nothing new. Back in the days of robber barons, lawyers were known for helping to bust unions and ensuring that workers' rights were kept to a minimum. To make matters worse, the profession was overrun, in the words of the American Bar Association, by the "ambulance chaser," who used a "system of runners" to bring accident victims to lawyers for a fee and lured clients through other "nefarious methods."

In 1908, the ABA decided enough was enough and published the Canon of Professional Ethics, a sweeping set of rules meant to standardize the legal profession and improve its public image. Among the new rules, which every state quickly adopted: Lawyers could no longer advertise.

That, more or less, is how things stood for the next two generations. Enter the bearded, whip-smart John Bates and his dapper, brown-haired schoolmate, Van O'Steen, two lawyers cutting their teeth in Phoenix in the early 1970s. After two years working at Legal Aid, they decided to open a practice of their own, offering basic legal services to people not quite poor enough for government help. Their business model was built on volume, and before long they came to a realization: To turn a profit, they'd have to get more people through the door, and that meant getting the word out.

On February 22, 1976, Bates and O'Steen placed an ad in the Arizona Republic. It was nothing fancy, just a box that offered legal services for divorces, adoptions, name changes, and simple bankruptcy, all "at very reasonable fees."

But the state bar association recognized the pair's gambit for what it was: an attempt to turn the legal profession into any other kind of business, one where lawyers would compete for clients through advertising. The bar association, run by established, well-heeled attorneys comfortable with the status quo, immediately ordered Bates and O'Steen to stop advertising, adding injury to insult with a week's suspension of their law licenses.

Bates and O'Steen appealed to the Arizona Supreme Court. They argued that rich folks could find a lawyer at the country club, but poor and middle-class citizens had little idea of what to look for. It wasn't enough to sway the judges. The Arizona Supreme Court, after all, had written the very rules—liberally cribbed from the ABA—that Bates and O'Steen were trying to overturn.

Yet the pair would not be denied. Within a year, the case was before the highest court in the land. And in June 1977, the black-robed justices of the U.S. Supreme Court voted 5-4 in favor of Bates and O'Steen. Justice Harry Blackmun, writing for the majority, said that legal advertising helps "inform the public and allocate resources in our free enterprise system."

Overnight, the previous status quo was replaced by the standard that holds to this day: Lawyers can advertise, as long as they don't mislead. The new standard, which takes any highfalutin debate about lawyer dignity out of the equation, paved the way for all kinds of shameless advertising. In the Yellow Pages you can find ads that shout, "WE WILL FIGHT FOR YOU!" On TV, aggressive men in suits point at the viewer and pronounce, "Our lawyers can help you get money!" And in what is perhaps a watershed moment, a recent billboard for a divorce lawyer in Chicago featured a picture of a busty woman dressed in skimpy underwear on one side and a bare-chested hunk on the other with the advice: "Life's short. Get a divorce."

 

This was the brave new world of law that the affable, wavy-haired Bill White entered into when he graduated from William Mitchell College of Law in 1982. After stints clerking for a federal judge, working as in-house counsel for a big chemical company, and taking on a variety of cases as an associate at a Minneapolis firm, he came to a realization: He hated being a lawyer. So he set his sights on magazine publishing. Going into business with a friend, White transformed the stodgy Minnesota Law Journal into Minnesota Law & Politics, complete with a punchy new tagline: "Only our name is boring."

It was about a year into his new job, in 1991, that White had an inspiration. Other magazines rated the best restaurants—why shouldn't he list the best lawyers? All he needed was a name. "I was fascinated by the term 'supermodel,'" White recalls, relating his tale from the lofty perch of his downtown Minneapolis office. "Everybody was a supermodel. There were no models any more. I thought, Well, why not 'Super Lawyer'?"

From the moment of its first appearance in August 1991, Super Lawyers established itself as a cash machine, sustaining the fledgling magazine for the rest of the year. The trend continued in the years to follow, with lawyers voted by their peers and named by White as "Super Lawyers" lining up to take out ads congratulating themselves. "If we were a retailer, it would be our holiday season," White says. Soon, White was sending out ballots to every lawyer in the state, and steadily, if slowly, growing the circulation of the magazine, which today stands at about 16,000.

Everything changed after Vance Opperman, a local publishing tycoon, bought Law & Politics from White and his partner. In 1998, Opperman published the Super Lawyers list in his sister magazines: Minneapolis/St. Paul and Twin Cities Business Monthly. And with that, Super Lawyers was no longer just a list to make lawyers feel good about themselves. It was a full-fledged, general-interest consumer guide.

It was also, White and Opperman understood, a business model that could be replicated on a much larger scale. Starting in Washington, where they established a second Law & Politics magazine in 1998, and then Texas, where the list ran in the venerable Texas Monthly for the first time in 2003, Super Lawyers went national. The business strategy hardly required an MBA: Partner with a city or state magazine, like Atlanta, San Francisco, or Connecticut magazines, assemble a list of Super Lawyers in the state, charge thousands of dollars to lawyers for ads appearing in the supplement, then split the dough with the host publication. Where Super Lawyers couldn't find such a host, the company inserted its own advertising supplement into major daily newspapers, including the Miami Herald and Detroit Free Press.

Given how well things were going, you could forgive Bill White for spitting out his coffee when, one day last July, he learned that his company had just encountered the business equivalent of kryptonite: An ethics panel appointed by the New Jersey Supreme Court had put Super Lawyers out of business in the state.

 

IN LATE 2004, Lloyd Levenson, a well-known Atlantic City casino lawyer, got a letter from Super Lawyers congratulating him on making the state's inaugural list and encouraging him to spend a few thousand dollars on an ad in the upcoming supplement in New Jersey Monthly.

"I was offended," Levenson says. "I don't think paying money for the glitzier ad is something the public ought to rely upon in deciding who to hire as an attorney."

Not only that, but Levenson thought it constituted a clear violation of New Jersey ethics rules. The state has some of the strictest lawyer advertising rules in the country. Unlike Minnesota and most other states, New Jersey forbids attorneys from so much as comparing themselves to their competitors—and declaring oneself a "Super Lawyer" certainly seemed to imply a superiority over one's peers.

Instead of mailing his reply to the company, Levenson sent the letter as evidence, along with a formal complaint, to the state's Committee on Attorney Advertising, empowered by the N.J. Supreme Court to rule on what makes a lawyer ad misleading. Sixteen months later, the committee issued its opinion: "This simplistic use of a media-generated soundbite title clearly has the capacity to materially mislead the public." Lawyers who called themselves "Super Lawyers," or even voted in the survey, faced potential sanction.

 

Super Lawyers, which learned of the investigation only after the opinion had been issued, fired off a petition to the state Supreme Court, arguing that banishing the company caused "immediate and widespread" damage to the lawyers who'd already bought ads for that year's upcoming edition. In August, the court acknowledged the upheaval and put the original opinion on ice. The court appointed a retired judge to gather new evidence, with each side allowed the opportunity to make its case. Once the judge files a report, the court will hear the matter, most likely by this fall.

"The only people potentially picking lawyers off the Super Lawyers list are consumers who don't know how the list works," says Micah Buchdahl, a legal marketing consultant and incoming vice chair of the ABA's law practice management section.

 

DAVID WILSON, a Minneapolis immigration lawyer, recalls getting a call asking if he'd be willing to swap his Super Lawyer vote. He was at his old job at a sizable litigation firm, and an attorney from a rival office offered to give him the nod if he'd reciprocate. Wilson says he flatly declined the offer, but asserts that the practice is widespread. "It's openly done," he says. "As much as [Super Lawyers] try to discourage it, people manipulate it."

Bill White says he's aware of every trick in the book, and has "all sorts of red flags" built into the system to prevent cheating. In Minnesota this year, he says, Super Lawyers kicked eight lawyers off the list for suspicious voting, including vote swapping. But he refuses to disclose exactly what those safeguards are, comparing his methods to other big corporate trade secrets, such as the recipe for Kentucky Fried Chicken. "We don't really want to give away the Colonel's recipe too much," White quips.

Super Lawyers does provide a broad outline of the selection process. First, every lawyer with at least five years of experience in the state is invited to vote. Lawyers are allowed to nominate 14 people; up to seven from within their firm, matched by an equal number from outside. Once the votes are counted, with more weight given to out-of-firm votes, Super Lawyers' research team, eight members strong, scours legal periodicals, trade journals, and other sources to scout out potentially overlooked lawyers, White says. The company looks at 12 different criteria, including educational background, position within the firm, and history of cases, using this data to balance out the survey results. Finally, Super Lawyers invites top vote getters to judge other lawyers in their practice areas, something White calls his "Blue-Ribbon Panel."

"We designed our system as one of checks and balances," White says.

Not everyone is convinced. One complaint is that Super Lawyers' methodology—reliant as it is on a direct-mail survey—favors big firms. Some, eager to ensure that their favored lawyers get the nod, go so far as to circulate lists of who to vote for. One lawyer from the recently folded Rider Bennett firm, whose roughly 100 lawyers last year included 24 Super Lawyers, says that such activity is rampant. "Large firms have the people-muscle to split up the votes in the proper way to ensure their people are Super Lawyers, regardless of their credentials," says the attorney, who insisted on anonymity to protect his job prospects. "This is pervasive amongst all of the large firms."

A couple of years ago, Buchdahl, the legal marketing consultant, heard a complaint from a group of big-firm lawyers who were upset that they were left off the Super Lawyers list. "I suggested it didn't take much to get on there," he recalls. He pointed out a couple of "very easy ways of coordinating votes." Lo and behold, the next year, the lawyers had made the list. When he next saw them, Buchdahl says, "They were all excited about it. I said, 'What're you so excited about? I showed you how ridiculous it is.'"

Conversely, many small-firm lawyers say they don't stand a chance of making the list. Steven Beseres, a solo practitioner, says he reads the list every year, but holds little hope of finding his name on it. "As a small practice I don't have much chance," he says. "You need a large voting group."

Super Lawyers, without getting specific, says it caps the numer of in-firm votes counted toward any one lawyer. The company also insists it is careful to select an equal number of lawyers from smaller firms, pointing out that in 2006, about a quarter of lawyers selected in Minnesota were from firms with 1-4 lawyers, roughly the same ratio as lawyers from firms with 5-19 lawyers, 20-79 lawyers, and 80 or more lawyers. However, critics point out that the numbers are misleading in that the vast majority of the roughly 24,000 lawyers licensed to practice in Minnesota work solo or in small firms.

 

But ballot stuffing isn't the only concern about the survey. In Minnesota this year, Super Lawyers says it sent 17,320 postcards to lawyers directing them to a voting website. Fewer than 1,500—or about 8.5 percent—actually voted. And even though the ballot asks that lawyers only vote for attorneys whom they've seen in practice, there's no guaranteeing that voters have so much as met the lawyers they're nominating. It could be a friend of a friend, or someone whose Yellow Pages ad caught their eye.

"There's no way I know of that Super Lawyers can determine that someone voting for me actually had experience dealing with me on a legal basis," says Suzanne Born, a Super Lawyer who specializes in adoption law.

Some critics argue that if the company were really serious about conducting a scientific survey, they would only let attorneys rate those they've squared off against.

"It would seem to me that to pick a Super Lawyer, prosecutors ought to be voting for defense attorneys, and defense attorneys should be selecting prosecutors," says Washington County Attorney Doug Johnson. "Insurance company lawyers should pick plaintiffs' attorneys and vice-versa. If it were up to me, I'd do it different."

 

ALONGSIDE ISSUES of fairness are those of money. Lots of money.

A few months before the Super Lawyers list is published each year, the company sends out a letter of congratulations to the winners. The note points out both the "honor" of being selected and the "opportunity" that comes with it. In Minnesota, that opportunity consists of placing ads in the three magazines that publish the list. Prices range from $995 for a "profile"—a small photograph accompanied by a short blurb—to $29,995 for a two-page spread running in all three magazines. In addition to the expensive ads, Super Lawyers encourages winners to buy brochures and plaques proclaiming their elite status.

Given all this, many of those selected say the list is less about honoring them than trying to milk them for all they're worth.

"People are paying handsome sums to be listed in their directory," says Gary Weissman, a mediator who bought a profile ad in 2006. "It has the desired effect."

Buchdahl says he frequently hears from marketers at large firms who are frustrated by what they see as money wasted on vanity ads in Super Lawyers. "It's $15,000 or $30,000 that might have done something for us," is a frequent gripe.

"They have a clever business model that sells based on lawyers' egos," Buchdahl says.

With all the money and networking at stake, most of those who dislike or disapprove of Super Lawyers have little appetite for speaking out publicly against it. About ten of the roughly three dozen Minnesota lawyers interviewed for this story refused to have their names used, out of fear of angering their friends or being uninvited from the annual Super Lawyers cocktail party.

"It's a little self-congratulatory for my taste: 'We're all super. Aren't we good?'" says one longtime personal injury attorney who's on the Super Lawyers list. But "there's nothing much to be gained in pissing Super Lawyers off. I don't want to be out front on it."

 

TO BE SURE, Super Lawyers does have its backers. Paul Rogosheske, a criminal defense attorney who has made the list, says it provides a public service. "In this day and age, lawyers are specializing," he says. "Anything the bar association or periodicals can do to highlight lawyers is beneficial to consumers and ultimately the profession."

And criminal defense attorney Carolyn Agin-Schmidt catches a whiff of sour grapes coming from fellow lawyers who complain about the list. "The people I always hear saying it's a popularity contest are the ones who didn't get selected," she says. "I don't think you could be a crappy lawyer and be selected as a Super Lawyer."

And perhaps, suggests attorney David Dean, a little good publicity isn't such a bad thing.

"Lawyers suffer enough. We're the brunt of a lot of humor and negative feelings," he says. "I don't think it's the greatest thing or the end of the world, but their families probably love it."


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