2011-17 (August 9, 2011)
Lawyer Peer Review; Rules 1.2, 1.3, 2.1
 
Issue: May a Judicial Official submit a Martindale-Hubbell “peer review” rating for a lawyer who has appeared before the Judicial Official in the past but is not likely to appear before the Judicial Official in the near future?
 
Response: Additional facts include: The lawyer who would be rated provided Martindale-Hubbell with the name of the Judicial Official. The reviewer is asked if the lawyer meets the “very high” criteria for “general ethical standards” and to rate the lawyer on a scale of 1 – 5 on legal knowledge, analytic capabilities, judgment, communication ability and legal experience in his or her area of practice.  Martindale-Hubbell changed its peer review ratings in September, 2009, although the new system was initially phased in during 2008.  According to the Martindale-Hubbell website, “[t]he changed Martindale-Hubbell Peer Review Ratings allow reviewers to provide Additional Feedback on the lawyer under review which provides qualitative depth and personality to the review.  In an effort to showcase a lawyer’s sphere of influence with his peers through the Martindale-Hubbell Peer Review Ratings, LexisNexis Martindale-Hubbell will also now aggregate and display reviewers’ basic demographics, including general position and general geographic location.”  “Examples of basic demographics are ‘private practice lawyer, senior partner, New York, USA.’”  Martindale-Hubbell states that while “[all] Peer Review Ratings materials are treated as anonymous” and it “takes steps to protect anonymity . . . it is possible that [reviewers’] responses may contain sufficient information to allow the rated lawyer to ascertain [the identity of the reviewers].”  While most peer reviews are initiated by Martindale-Hubbell, a lawyer may request such a review.  In either instance, the reviewed lawyer can submit the names of references and Martindale-Hubbell will contact the references to request that they complete an online Peer Review.
 
Based on these facts, the Committee members in attendance unanimously determined that providing a peer review to Martindale-Hubbell is not permissible under the Code, whether or not the reviewed lawyer or Martindale-Hubbell initiated the review.

While recognizing that judicial ethics committees which have considered this issue in the past have determined that Judicial Officials could provide ratings of attorneys whose work they were familiar with, provided the evaluations remained confidential and did not create the impression that the Judicial Official endorsed a particular lawyer, the Committee noted that the prior opinions predated the changes to the evaluation system that were implemented in 2008 and 2009.  The Committee also noted that New Jersey (New Jersey Guidelines on Extrajudicial Activities, Addendum A) and South Carolina (Advisory Committee on Standards of Judicial Conduct, Opinion No. 04-2004) had concluded, prior to the changes, that providing confidential ratings to Martindale-Hubbell, was inappropriate. The Committee agrees with the South Carolina Committee’s observation that “[p]ublicized ratings which indicate that a judge believes one lawyer to be superior, in one way or another, to another lawyer, could certainly create the appearance of partiality….”  Based upon the changes to the evaluation system, including the potential that the Judicial Official’s identity could be ascertained, the Committee determined that providing a rating, even if anonymous to those reading the aggregated data as part of a review, would violate (1) Rule 1.2’s requirement that a Judicial Official act at all times in a manner that promotes public confidence in the impartiality of the judiciary, (2) Rule 1.3’s proscription on the use of the prestige of office to advance the personal or economic interests of others (both the rated lawyer who sought the JO’s review, and Martindale-Hubbell, which is a private, commercial publisher of lawyer ratings), and (3) Rule 2.1’s proscription that a Judicial Official’s judicial duties take precedence over all of the Judicial Official’s personal and extrajudicial activities.   The Committee noted that providing a peer review to Martindale-Hubbell under its revised system is not analogous to  providing a letter of recommendation or a letter of reference, both of which the Committee has approved subject to various restrictions.  Unlike the general ratings at issue, which single out certain lawyers for general endorsements as to proficiency and integrity relative to other lawyers, letters of recommendation or reference comment on individuals’ suitability for particular positions or purposes.  See JE 2009-15 and opinions cited therein.