IF YOU CAN'T BEAT ’EM, JOIN ’EM. For many years, I railed against the onslaught and proliferation of lawyer ratings and rankings services. As an attorney, I was disturbed at the flawed methodologies of most. As a marketer, I was bothered by the shift in a law firm’s focus and dollars from business development efforts to something I felt did not have enough of an impact or real return on investment. Ranking services were lawyer ego sells, and many companies found that selling to a lawyer’s ego was an extremely lucrative business.

Fast-forward about a decade, and the only thing that has happened to the industry is more growth, greater focus and an even more significant impact on the profession. Some law firms employ full-time marketing professionals solely to manage their various rankings submissions. A cottage industry of consultants “sell” the idea of improving ratings and helping get specific attorneys, practices or firms on the radar of some companies. Many marketers—myself included—feel the pressure to make sure that a law firm is well represented by the ratings entities that matter most (to them). We’ve come to a mutual understanding that both of us are going to coexist in the law marketing world.

In October 2013, nearly 5,000 attorneys tuned into a program I developed for the ABA CLE Premier Speaker Series, with co-presenters Elizabeth Tarbert, ethics counsel of the Florida Bar, and Steven Naifeh, president of Best Lawyers. Entitled Lawyer Rankings & Ratings: The Impact on Ethics and the Profession, we addressed issues of ethical considerations, methodologies and the impact on both the lawyer and the buyer of legal services. Participants wanted to know how to select the right rating services in which to participate (for those where you have a choice), which were ethically sound, and how to improve one’s scores.

THE PLAYERS

Before the 1980s, there was really only Martindale-Hubbell. If you were not in its venerable print directory, you probably did not really exist. And attorneys sought validation in trying to obtain the coveted AV rating. Many still do, although today print directories are near extinction, and Martindale has worked to reinvent itself both in the Internet world and in a universe where other ratings are highly sought. Today’s AV ratings are referred to as “top-rated lawyers” and reflect the industry’s changing landscape.

In 1981, Best Lawyers came on the scene. Since then, more than 1,000 “lists” of varying sophistication and legitimacy have joined the fray. In 2010 Best Lawyers partnered with U.S. News & World Report to rank the “best law firms” in the U.S., growing to 11,000 firms in 120 practice areas on a national scale and 178 in regional metro listings. The recognition of the U.S. News brand outside of legal circles brought with it increased scrutiny. The assumption by many state bars was that nonlawyers did not recognize the Martindale name, so protecting the public at large was not an issue. The same feeling was not shared when it came to a badge closely identified with colleges and universities, the medical profession, and other well-educated businesses and professions.

The first of two seismic shifts took place when the U.K.’s Chambers & Partners, which started in 1990, crossed the pond early in the 21st century. The largest U.S. law firms knew the Chambers name and quickly helped legitimize Chambers USA as the premier rating they sought. Its methodology, involving independent research as well as client and attorney interviews, became the new formula of credibility.

The early ’90s brought us Super Lawyers. It added a separate Rising Stars list in 1998. There is Lawdragon, with a heavier editorial focus. Legal 500 is a big player in Europe. American Lawyer Media publishes a boatload of honors that relate to surveys and lists—“go-to” law firms, and rankings for criteria that range from summer associate satisfaction to which firms represent the biggest corporations. I can’t possibly name them all.

Recognizing the money to be made in the rankings business, local publishers started sprouting up everywhere from the neighborhood penny saver to big-city magazines and related websites. It is the methodology—or lack thereof—that concerns many, as these “top attorney” lists often amount to nothing more than unmonitored polls, on the high end, to pay-for-play on the low end. In addition, naïve lawyers buy into leading lawyer and top attorney lists—convincing themselves that they actually won something, as opposed to simply buying advertising.

As the Internet grows and matures, so do the online versions of the ratings game. That second major shift came with the introduction of Avvo in 2006. Founded by Mark Britton, a top executive at Expedia.com, I often refer to the website as the Trip Advisor for picking lawyers. Its directory is a combination of attorney scores (using Google-like secret algorithms), lawyer reviews, Q&A lists and various types of online advertising targeted at the Web-surfing consumer. Whereas a corporate law firm might be focused on Chambers USA or the U.S. News list, a consumer-driven law firm might be more concerned with Avvo visibility. And the overlap into “reviews” extends to nonlaw sites where lawyer performance reviews can be posted on Yelp or Google.

ETHICAL QUANDARIES

Many attorneys and state bars have found the ratings and rankings game troubling. Dozens of ethics opinions address varying issues. In some states, the Rules of Professional Conduct (generally in the Rules 7.1–7.4 range) discuss parameters in the Commentary. The biggest concerns relate to some core principles of the ethical issues involved. Does promotion of a rating lead to “deceptive and misleading” advertising? Are the prohibitions regarding comparing one law firm to another being circumvented? Who is to decide—as stated in many bar rules and opinions—what makes up a “bona fide” rating or ranking? A reread of Bates v. Arizona shines no light on an industry the U.S. Supreme Court did not foresee.

From time to time, state and national bars have taken on the ratings business. The infamous Opinion 39 from New Jersey in 2006 threatened to put an end to Best Lawyers, Super Lawyers and others. The major players, including Martindale, banded together in litigation to effectively reverse the opinion’s findings and resume business as usual—although it did increase the scrutiny of methodologies. The ABA House of Delegates refrained from investing time and money following the introduction of the U.S. News rankings, with many citing the cost and likelihood of failure to overturn what some saw as infringement of free speech. However, state bars have instituted a variety of requirements for proper usage and participation in ratings and rankings—often requiring specific disclaimer language, a notation regarding the year of the honor and pointing to the list’s methodology. There is also the reminder that you are not a Top, Power, Super or Awesome lawyer—but “included” on such a list. There is a distinction.

THE CHANGING MARKETPLACE

Besides being a lucrative business, what has spurred the growth of this industry? Most certainly, changes in technology and digital media. There is no question that the legal market itself, through consolidation, globalization and structural changes, has played a contributing role. Most recently, issues surrounding social media (dozens of questions from CLE program participants sought answers to questions about the proper use of LinkedIn) are changing the landscape again, from being “Most Liked” on Facebook to “recommended” or “endorsed” on LinkedIn. The ratings and rankings entities will no doubt need to adjust once again, as these sites and the increasing review sites change the information on display.

WHERE TO PLAY?
It is virtually impossible to fully engage and participate in every ratings and rankings opportunity out there, regardless of your firm’s resources for doing so. Where you direct focus and expend energy really depends on your target audiences. A quick look at many Am Law 200 home pages and print ads will highlight success in Chambers USA, U.S. News or BTI Consulting Group, for example. Your client types ultimately will dictate focus—consumer, corporate, lawyer referrals or in-house legal departments.

You want to look at a publication’s stated methodologies and use your own “smell test” to see if the lawyers on a list accurately reflect who you believe might be the leaders in a given practice. Decide among your partners how much time and money you want to invest in these scores, including who will be responsible for garnering and reviewing the data for submission. Be sure to comply with the Rules of Professional Conduct in the relevant states.

Typically, I tell law firms that good ratings should complement your marketing, not be the marketing. They have a place. Deal with it.