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Dear Michael Getnick, Don't be a "Gray Davis"

By: Marshall R. Isaacs

U.S. News and World Report and Best Lawyers magazine are planning a joint-venture to rank law firms. In response, New York State Bar Association President Michael Getnick has cast his vote to adopt an American Bar Association resolution to examine the magazines’ efforts.

Mr. Getnick: I applaud your call to action, however, you are headed in the wrong direction.

To quote our State’s highest Court, “The Legislature has delegated the responsibility for maintaining the standards of ethics and competence to the Departments of the Appellate Division (see, *** ** Judiciary Law § 90[2].” Wieder v. Skala, 80 N.Y.2d 628, 609 N.E.2d 105, 593 N.Y.S.2d 752 (1992).

The ranking of one law firm above another is effectively a determination that the lower-ranked is less competent. Such a determination can only be made by the Appellate Division. The magazines have no business ranking lawyers. And that’s that.

Perhaps I’d understand if the State or Federal Government were considering such a measure. But we’re talking about the guys who write the stuff you read while sitting on the toilet. Actually, most people I know would reach for the People magazine with the soiled cover before grabbing the mint-condition Best Lawyers.

ABA President Carolyn Lamm, also missed the mark. According to the ABA Journal, she urged the House to table the measure, saying it may violate existing law such as the First Amendment.

Now, I’m no legal scholar, but a brief review of her BarBri notes should have allayed Ms. Lamm’s fears: For commercial speech to be protected under the First Amendment (1) it must not be misleading and (2) it must not conflict with a substantial government interest. Lorillard Tobacco v. Reilly, 533 U.S. 525, 121 S.Ct. 2404.

The Magazine’s rankings clearly conflict with the Appellate Division’s interest in determining competence. As for the second prong of the test: How can a lawyer ranking system be anything but misleading? Law firms are so incredibly diverse in practice concentrations, geographic location, clientele, size and experience that ranking them would be akin to ranking people. Our legislature tried that once. If history serves me right, it didn’t work out too well. The result of the rankings were such:

1. Whites
2. Blacks

Clearly, we can’t ignore the magazines’ intention to rank law firms, as Ms. Lamm would have it. The results have potential to spark their own, miniature civil war. But we shouldn’t be dignifying their efforts either.

Didn’t it occur to anyone present at the meeting that the whole idea of ranking law firms is just plain wrong? Didn’t anyone consider that the magazines might be overstepping their bounds, even potentially committing a criminal act? Had I been at the ABA’s meeting, I would have demanded we pass a resolution requesting the Attorney General to look into some form of injunctive relief or charges of obstructing governmental administration.

Moreover, why waste valuable resources on an investigation? If you are one of the fourteen people who’ve read my article “Apparently Bigger is Best,” you’d already know Best Lawyers’ methodology: This year’s Best Lawyers are selected by last year’s Best Lawyers. And, by Best Lawyers' own admission, the lion’s-share of votes come from large law firms. So, in essence, we already know how the rankings will play out. They should look something like this:

Tier 1 Law Firms
Jones Day
Greenberg Traurig
Skadden Arps
Kirkland & Ellis
Sidley Austin

Tier 2 Law Firms
Getnick Livingston Atkinson & Priore, LLP

Unranked - Insufficient information available (i.e. Proceed with caution!)
Marshall R. Isaacs, Attorney at Law
Jane Smith, per diem attorney and single mother of two

Are we really to believe that Best Lawyers will scrap years of R&D only to spend a fortune developing a new model? Can a leopard really change its spots? You’d have better luck asking General Motors to make the Hummer eco-friendly.

Perhaps a second history lesson is in order. In the 1990’s Enron bullied California into deregulating its energy policy. When Enron stepped in and took over the reins, rolling blackouts ensued and California's electric rates soared. Small retailers were the hardest hit. Many were unable to keep up with their electric bills and were forced into bankruptcy. Another casualty of the crisis was California’s Governor, Gray Davis.

Dear Michael Getnick: Don’t be a Gray Davis. Show some spine. U.S. News and World Report and Best Lawyers are nothing more than wolves in sheep’s clothing. We small firms and solos rely on YOU to be our watchdogs and to protect our integrity. Please don’t let the magazines pick-off the smaller members of your herd.

Comments (10)

Top 10 Reasons I Don't Care That a Magazine Publishes Lawyer Rankings....and Why I Don't Anticipate the Bar Association Stopping Them.....

10. I've never had a new client tell me they narrowed it down between me and Skadden, Arps.

9. If a client is basing his lawyer hiring decision on a magazine ranking, I'm OK not having that client.

8. If a law firm is spending their money lobbying to get on the top lawyers list, I know that they will be pricing themselves out of the market for any clients I might be interested in.

7. I am a capitalist. If clients choose to hire big firms that bill them crazy rates so they can pay their young "talent" crazy salaries, they'll get what they pay for, and THEN they'll make a better decision and call ME.

6. Comparing and ranking law firms is obviously subjective, not reliable, and not actually helpful to anyone. If someone wants to spend time doing it, so be it.

5. I would not EVER expect the organized bar to stand up for us rank and file, lunch pail, real lawyers. It's not what they do. If they did, we wouldn't be constantly abused by the court system.

4. If an individual wanted to start a small firm ranking service, or one that posted "reviews" of lawyers, so consumers could evaluate the small firms, would that be something we'd want to stop? I dunno, I'm throwing it out there.

3. What might be worth regulating is any "ranking" or "magazine list" where the firms on the list advertize in the same magazine. That ain't right.

2. Most solos and small firms are struggling to make a living and are WAY too busy to be involved in the State Bar or ABA. Therefore we are under-represented there and thus underserved.

1. Those lists, and the State Bar and the ABA have little to do with me or my practice or my life.....and, the fact is.....I am more involved and interested in these issues than most of my colleagues!!

Marshall...Thanks for contacting me regarding this post. I've been very involved in the rankings debate, and as chair of the ABA Law Practice Management Section will be moderating a program at ABA Annual in San Francisco on this topic, featuring the leadership from all of the top rankings entities in the legal space. I encourage anyone attending ABA Annual to participate in this forum. You can also read my two part column on the subject in the ABA's Law Practice Today webzine (links below).

Since I could go on for days on this topic, I will just highlight a few points in response to your post:

1. I agree that the world might be a better place without any of these ratings or rankings. However, this is America, and people like this stuff and participate in it.

2. I also agree with Carolyn Lamm that trying to impede on these companies' first amendment rights is a mistake...and a losing proposition.

3. These entities have been around for decades. This stuff is not new. Some states, such as New Jersey, challenged Super Lawyers and Best Lawyers a few years ago and lost. Where I disagree with many is the desire to pick on one or two companies in the industry--US News has just as much right to do this as any other magazine or corporation. Remember, Super Lawyers is now just another company in the Thomson Legal world.

4. Not only is this not the first effort at ranking law firms, but many have responded to the huge success of Chambers USA in recent years. And it is true that the biggest firms in the world play heavily in this realm. When the Skaddens of the world stop paying attention, there will not be a business to debate.

5. And finally, while I agree the system favors larger firms, there is plenty of room for solos and small firms with some of these rankings entities.

6. Please feel free to send my questions you might want asked at the ABA program in August, if you are unable to attend.

http://www.abanet.org/lpm/lpt/articles/mkt03102.shtml

http://www.abanet.org/lpm/lpt/articles/mkt04102.shtml

Program at ABA Annual, Friday, August 6th:

Law Firm and Lawyer Ratings & Rankings: You Rank the Raters!

Moderated by Micah Buchdahl
Presented by Mark Britton, Katrina Dewey, Carlton Dyce, Catherine McGregor, Steven Naifeh, Bill White

A Forum on Methodology, Benefits and Value; Making Sense of Lawyer & Law Firm Ratings
Chambers, Super Lawyers, Best Lawyers/US News and World Report, Avvo, Martindale-Hubble, Law Dragon…Forget the rhetoric and spin…come out for a no-holds barred program featuring the leading executives from every major lawyer and law firm ratings & ranking business in the industry—on one panel, side-by-side…as they explain their methodologies and respond to questions from a moderator and ABA members concerned with the impact of ratings on the profession. Round One took place during last fall’s ABA Law Firm Marketing Strategies Conference. Since that time, the ABA weighed in with a hotly-debated discussion and subsequent resolution by the House of Delegates at Midyear. If you are looking to get ranked, find out how. If you want to learn more about methodologies, or simply want to voice an opinion, join us for this program. It is one of the hottest topics in the profession, and the Law Practice Management Section has brought everyone under one roof to set the record straight.

I agree with Marshall. For lack of a better phrase, the rankings are silly and with a grave potential hurt to solo's and small firms. Why risk it. The harm does not outweigh the benefit.

The public is well enough informed on how to choose a law firm or lawyer. Between the internet, word of mouth...oh, and the old system of an in person consult, why in the world people think we "need" rankings is beyond me.

Not only that, but we have no idea (and I'm sure that it is not disclosed to us or the public) on the methodolgy used to come up with these rankings. I envision a bunch of good ole boys sitting in the Friar's club smoking a good cigar conspiring on how to get each other into this ranking.

So, with that, I oppose this.

The only solution that I may offer is that the rankings be broken down by size, legal speciality, location, etc. I know NJ does this but I also believe Superlawyers does not "rank" (there is no #1, #2, #3, etc), and they do disclose in the magazine how they choose someone to be a Superlawyer (nominated by their peers).

Good luck Marshall!

Micah & Barry -

Thanks for being part of the conversation. But I'm very surprised by both of your remarks.

Micah: "People like it?" People like crack but I'm not so sure we should legalize it.

Barry: if you want to turn away business because it came from a magazine, that's great. Please pass those clients on to me!

Micah: So we lost in New Jersey. So what? Did Harvey Milk give up after losing his first election? You can throw in the towel. I'm not going to stand by and watch big business take a poop on our profession.

Barry: Bad news. It's not only Skadden who will be ranked. It's the two Skadden partners who defect and form a small probate practice a few doors down from your offices.

Micah: You're right. There is plenty of room for solos. That is, if they defected from Biglaw or represented O.J.

I could go on and on but I really have to get back to representing my clients whose names I can't divulge to U.S. News & World Report in order to merit a ranking.

Marshall

Marshall...Crack? Harvey Milk? OJ? Man, you sure know how to optimize your responses for search engines. I would add that Pamela Anderson probably loves lawyer rankings, as would anyone in the Twilight and Harry Potter movies. Anyway, as long as attorneys fill out the forms, buy the ads, purchase the plaques and effectively get all worked up over ratings...they will not only continue, but continue to grow.

Some of my law firm clients consider success in the rankings absolutely essential, while others could care less. I have to guide them in the best way possible, if that is a goal. I will also tell you that I insisted that many of my law firms participate in the US News effort, because I do believe it will reach a far wider audience than anything else out there, and I'd rather choose not to participate later than regret it now.

As to fighting the companies, as an attorney, I think it is a losing proposition. I do believe they have a constitutional right to operate. The state bars should focus attention on making sure there continues to be effective requirements in regard to disclaimers, oversight and protecting the consumer. There is no question that many attorneys (mostly small firms, I might add) utilize these rankings in a manner I personally feel violates the "deceptive and misleading" mantra. I'm all about being real...and that is the best approach to take.

LT:

Marshall I thought your article was brilliant. Someone's got to speak up for the smaller law firms.

Dina Vinokurova:

Setting aside the potentially harmful consequences, the magazine's approach to this rating system is insulting to the profession. U.S. News & World report simply announced the upcoming ratings without consulting the organized bar. U.S. News and World Report is a magazine! Not a group of judges, government officials or even influential lawyers. Where do the magazine's editors get-off telling a time-honored and respected profession, "like it or not we're rating you, so you might as well participate."

As for freedom of speech concerns, this isn't about reporting news or making sure the regular folk know the truth. It's about an arbitrary rating system, created solely to make money and stroke big-firm egos.

The fact that some lawyers are actually defending these rankings is absurd.

Lincoln:

The rules state that a lawyer shall not make or permit to be made a misleading, or deceptive communication about the lawyer or the lawyer’s services. Clearly, the super lawyer rankings fall into this category. Nothing can stop them from supplying the rankings. However, the bar is perfectly right to communicate to its members that advertising their own ranking is a violation.

Lincoln -

"To be eligible for a metropolitan area ranking, a firm had to have at least one lawyer listed in Best Lawyers." - Bob Morse, U.S. News & World Report, http://tinyurl.com/27sf5cn

Here's a newslash for you, Abe: Best Lawyers has always allowed a lawyer to nominate him/herself.

What say you now?

Dana Riccoboni:

When balancing the hardships, it's clear that the harm done to small independent firms not included in this "ranking," greatly outweighs any benefits such a list would produce. Seems a waste of time, and prejudicial to the "little guy."

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This page contains a single entry from the blog posted on June 21, 2010 4:03 PM.

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