Special rules for specialists.
In fact, in almost every state, a separate, or special--if you will--rule exists just to govern the use of the term "specialist." This is Rule 7.4 of the ABA Model Rules and a comparable number in most states. The problem is, like many of the ethics rules governing legal marketing, that the rules vary state by state.
In the 1970s, some states began to offer certification of specialties in various fields of practice such as civil litigation, probate and family law. In order to become certified as a specialist, a lawyer has to go through a rigorous process that usually involves peer review, heightened continuing legal education requirements, a level of practice experience and accomplishment and testing. This process separates lawyers who are certified as specialists from those who merely proclaim to be specialists. About a dozen states have programs of certified specialization. Some states continue to have ethics rules designed to protect this designation.
Fundamentally, the state rules are divided into three categories. Current ABA Model Rule 7.4 separates the concepts of "specialization" and "certification of specialty." Lawyers in states that have adopted the current version of the Model Rule may indicate they are "specialists" even if they are not certified, but, the comment notes, "such communications are subject to the 'false or misleading' standard" prohibiting a lawyer from advertising in a way that creates a misrepresentation. So, a lawyer in these states who is truly a specialist by virtue of experience and skill can say so.
Most states embrace rules that reserve the designation of "specialist" to those who have been certified, either by the state or by an entity that is approved by the state, such as the National Board of Trial Advocacy. Lawyers advertising in these states may say they are certified as a civil litigation specialist, for example, by the certifying entity. Lawyers may not, however, indicate they are specialists in the absence of that qualified certification, and generally the statement must specifically identify the certifying organization. In most of these states, lawyers may substitute certain terms, such as "concentrates in ... ," "focuses on ... " or "limits practice to ... " While these terms may imply that the lawyer has some higher capability compared to a general practitioner, the phrases are themselves qualitatively neutral. Unlike "specialist," these alternative terms do not state the lawyer has any expertise or greater credential.
A few states impose even greater restrictions. They permit a lawyer to communicate that he or she is a certified specialist, but also require a disclaimer or explanation. In Illinois, for example, a lawyer who is identified as a certified specialist must state that the Illinois Supreme Court does not recognize certification of specialty in the practice of law and the certificate is not required in order to practice law in Illinois.
So, if you are promoting lawyers who are specialists, how do you handle these state variations? On the one hand, firms with lawyers who are specialists, whether certified or de facto, should be encouraged to promote their specialties and help clients find lawyers for their precise needs. On the other hand, it is essential to understand and comply with the state rules applicable to every marketing vehicle, from press releases to online bios. Marketers with advertisements in a specific state need to only understand and comply with the rules in that state. You can link to the rules of each state from www.abanet.org/adrules. Be sure to check the comment that usually accompanies the rules. In those states that follow the current ABA Model Rule, the language permitting the use of "specialist" is found in the comment.
The difficulty emerges when a firm is seeking clients in multiple, if not every, state and must then comply with the rules of each state. In this situation, firms most often take a practical approach and avoid all references to "specialist" and its derivatives, even when some lawyers are certified specialists. Although the prospective client may not get complete information about the lawyer's competency, the lawyer is protected from the risk of disciplinary action.
Will Hornsby is staff counsel in the ABA Division for Legal Services. Hornsby can be reached at firstname.lastname@example.org. Between 1990 and 2002, he served as staff counsel to the ABA Commission on Advertising. The opinions in this article are solely those of the author. Nothing in this article should be construed as the policies of the ABA or any of its constituent entities.
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|Title Annotation:||The Ethical Marketer|
|Publication:||Strategies: The Journal of Legal Marketing|
|Date:||Jun 1, 2008|
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Laws, regulations and rules
Licensing, certification and accreditation
Specialties and specialists