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.” 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:
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
Kirkland & Ellis
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.