When is a lawyer a Super Lawyer?

It's not a comic book hero, but a marketing device whose growing use is emblematic of changes in the business of law.

Lawyers still like to think of their profession as a fraternity, where business is obtained the old-fashioned way, through word of mouth. Their firms, however, long ago embraced marketing, branding, and advertising as ways to compete, especially as legal services are increasingly viewed as a commodity.

That makes some lawyers uncomfortable. Yet nothing causes more debate about law and advertising than the recent explosion of lists that claim to rank the top lawyers.

Super Lawyers, the brainchild of Law & Politics, a small Minneapolis-based publisher that has rapidly expanded its East Coast operations since 2003, may just be the cheesiest example of this phenomenon.

If the name suggests exclusivity, the actual list is anything but. For the New York rankings, now in their second year, Law & Politics sent forms to 89,000 lawyers, who were asked to nominate their peers, and, after an evaluation by the research department, "only 5 percent" were selected as Super Lawyers-or more than 4,000. (That's a lot of red capes.) Their names appear in advertising supplements that run in the New York Times Magazine and elsewhere.

"Basically the way the polling is handled, I have always suggested to folks that any attorney that wants to be a Super Lawyer can be, by virtue of calling a few friends," said Micah Buchdahl, a law-firm marketing consultant. "It's not an exclusive club."

Many of the top 100 on the Super Lawyers list do hail from the city's large corporate firms, including Cravath, Swaine & Moore; Wachtell, Lipton, Rosen & Katz; and Sullivan & Cromwell. Among the Super Lawyers top 10 are some of the usual suspects who appear in every "best of" list, like Mary Jo White of Debevoise & Plimpton, a former U.S. attorney in Manhattan. These names appear in small black print, but the law firms buying ad space near the blue-chip names get to trade off the prestige of their better known brethren.

One lawyer on the top 10 list spoke on the condition that his name not be used. "I think people are gratified to be recognized at the dinner table or a school function," he said.

"It's a popularity contest," he acknowledged, and the fact that his name appears alongside paid ads, "runs the risk of it being confused as being an advertisement."

Still, when there's a contest, the lawyers inevitably get competitive.

"It's the kind of thing that if it exists, you don't want to be left out," Margaret Shaw, with the mediation group JAMS, said at a September 27 cocktail party at the Waldorf-Astoria hotel feting the Super Lawyers.

The very top of the top 10, Theodore V. Wells Jr. of Paul, Weiss, Rifkind, Wharton & Garrison, was also at the Waldorf party. While Wells was ranked No. 1 (and came in second last year), that accomplishment does not appear in his biography on the Paul Weiss website, which notes that the National Law Journal named Wells, who defended I. Lewis "Scooter" Libby, its Lawyer of the Year in 2005.

"I live in a world where we don't advertise, but I believe strongly that lawyers ought to be able to advertise and I think that the Super Lawyers publication is first-rate," Wells said.

An 80-page advertising supplement featuring the New York Super Lawyers recently appeared in the New York Times Magazine. The supplement carried ads by lawyers congratulating and profiling themselves upon their selection as Super Lawyers. Most of the 80 pages are given over to the "platinum profiles" that Law & Politics offers to those selected. A one-page color platinum profile costs $20,000. Some firms chose a two-page color spread like the one for Napoli, Bern & Associates, whose tagline says "aggressive advocates for the injured."

On the cover of the Times magazine was someone who is certainly a "super lawyer": Supreme Court justice John Paul Stevens. The 7,500-word article about Justice Stevens on the eve of the court's new term, sure to be read by those who follow the law, was an unexpected boon to William White, the publisher of Super Lawyers.

"People said, ‘My God, who did you pay off?' " said White.

(Diane McNulty, a spokeswoman for the New York Times, said that Super Lawyers had "no prior knowledge" of the content of the Times magazine. "The Super Lawyers inserts are planned many months in advance in accordance with their own schedule of regional Super Lawyer magazines," she said.)

In the advertising supplement, the most eye-popping profile may be that of William A Brewer III of the commercial litigation firm Bickel & Brewer, who ran the same profile last year. Brewer stares out at the camera, jaw clenched and shoulders drawn, clad in a pin-striped suit and purple silk tie and copping a pose worthy of The Untouchables from his office on Fifth Avenue.

Brewer said the firm gets "zero" business from the ads, but he has noticed an "uptick" in support for the firm's pro bono activities after the ads run. "I think I got a call from an existing client who told me my tie was crooked," he said. "I think he was teasing me."

Not everyone is thrilled to be part of the Super Lawyers crowd.

"It's a tad embarrassing," said Mark S. Edelstein, chair of Morrison & Foerster's real estate financing practice, who made the list of real estate Super Lawyers. When Edelstein opened the Times magazine and saw the advertising insert, he said he cringed.

"I don't know why anyone would spend their money to get their picture or firm in there. It makes you feel like you are selling toilet paper or something." Edelstein, who also made the list last year, did not nominate any Super Lawyers, and threw away the survey from Law & Politics when he got it.

Even some publicists for law firms see the Super Lawyers ad inserts as the worst form of P.R. "It makes you look oily. It's schlocky-the worst kind of vanity on display," said Allan Ripp, who handles media relations for several large law firms.

Buchdahl, the marketing consultant, said Super Lawyers may already be losing its luster. "There is a tremendous amount of pushback from law-firm marketing departments, which feel that they are often forced to buy these ads," he said. "The marketers are finally saying: We are not going to do those ads. It is not advancing anything for us and it kind of makes us look stupid."

At least one state is determined to apply some kryptonite to its Super Lawyers. Last summer, the Committee on Attorney Advertising in New Jersey issued an opinion finding that lawyer advertisements heralding one's Super Lawyer status violate the state's ethics rules governing lawyers, which do not allow a lawyer to advertise by comparing his services to those of another lawyer or to "create an unlikely expectation about the results a lawyer can achieve."

White, the Super Lawyers publisher, doesn't seem fazed by the challenges. As the beef carpaccio and vegetable dumplings were being passed at the Waldorf party, he caught a glimpse of a couple of lawyers who were stamping out a fire in a paper cocktail napkin with their wingtips.

"Now, there are some real Super Lawyers," he said.