Lawyer Advertising: Touting Your Specialization or Certification

When advertising or otherwise promoting your law practice, obviously you're allowed to communicate the fact that you practice in a particular field or fields of law. You'll need to pause for a moment, however, before stating, or even implying, that you are certified as a specialist in a particular field of law. The rules of professional responsibility will tell you what statements of this kind can get you in trouble, while the courts -- most recently the Second Circuit in Hayes v. State of N.Y. Atty. Grievance Committee, No. 10-1587 (Mar. 5, 2012) -- offer some guidance on how far the states can go in regulating such statements.

 The ABA Model Rule and Its State Counterparts

The U.S. Supreme Court has held that an absolute prohibition of a certification statement would violate the First Amendment. Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990). Consistent with this ruling, the ABA has promulgated Model Rule 7.4. Subsection (d) of the rule states:

A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and

(2) the name of the certifying organization is clearly identified in the communication.

As noted by the Second Circuit in Hayes, the rules of 32 states are similar to the ABA's model rule, although some of these require state board or state court approval of the certifying body.

The Supreme Court in Peel indicated some tolerance for a disclaimer requirement to avoid potentially misleading statements about certification. Accordingly, some of the states that have not adopted the Model Rule have a requirement that a claim to be a specialist carry a disclaimer, such as a statement that the state does not certify lawyers as specialists. Minnesota and Missouri permit identification of a lawyer as a specialist even in the absence of certification, but require disclosure that there has been no certification by an organization accredited by a state board or court. West Virginia prohibits lawyers from identifying themselves as specialists except for patent attorneys and proctors in admiralty, and Maryland's rule does not even contain those exceptions. Michigan has no rule concerning communications about lawyer specialization.

The Second Circuit Weighs In

New York's Rule 7.4 required a statement that the certifying organization (if private) is not affiliated with any governmental authority. The court in Hayes approved this requirement, but two other disclaimer requirements did not fare so well. The court struck down a mandated statement that certification is not a requirement for the practice of law, and a statement that certification "does not necessarily indicate greater competence than other attorneys experienced in this field of law."

Also of interest was the plaintiff's constitutional vagueness challenge to New York's requirement that the disclaimers be "prominently made" in conjunction with the statement of the fact of certification. This issue implicated the required placement and type font of disclaimers in writings, which include billboards, stationery, and business cards, and the speed and duration of its expression in radio or television ads. The court thought it likely that the requirement would survive a facial challenge, but as applied to the plaintiff's billboard advertising, it was too vague.

Bottom Line

Before advertising or promoting yourself as a certified specialist in a particular area of law, be sure to check case law in your jurisdiction, as well as your state bar rules of professional conduct.

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