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Ethics Opinion

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C-232

November, 1984

SYLLABUS

    It is not proper for a Michigan lawyer to advertise as a specialist in a particular area of practice because this implies that the lawyer's qualifications in that field have been reviewed and acknowledged by an entity authorized and having the expertise to do so. However, it would not be improper for a lawyer to advertise as specializing in a particular area of practice, provided that such a claim is not in fact false, fraudulent, misleading or deceptive.

    References: MCPR DR 2-106(A)(4); Bates v. State Bar of Arizona, 422 US 260 (1977); In re R.M.J., 455 US 191 (1982); Supreme Court Admin. Order 1978-4.

TEXT

A lawyer asks whether it is ethical to advertise as a specialist in one or more areas of practice, including the field of general practice.

Michigan Supreme Court Administrative Order 1978-4 states:

    "A lawyer may, on behalf of himself, his partner or associate or any other lawyer affiliated with him or his firm use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. Except for DR 2-103 and DR 2-104, Disciplinary Rules in conflict with this Order are suspended for a period of one year."

MCPR DR 2-105(A)(4) states:

    "A lawyer who is certified as a specialist in a particular field of law or law practice by the authority having jurisdiction under state law over the subject of specialization by lawyers may hold himself out as such specialist but only in accordance with the rules prescribed by the authority."

At this time no new rules have been promulgated concerning specialization of practice. However, the matter at issue here must be considered in light of several significant court decisions.

In Bates v. State Bar of Arizona, 433 US 350 (1977), the Supreme Court held that lawyer advertising was entitled to First Amendment protection as commercial speech, and could not be subject to blanket suppression. The Court stated:

    "[a] rule allowing restrained advertising would be in accord with the bar's obligation to 'facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available. ABA Code of Professional Responsibility EC 2-1 (1976).'" 433 US at 377.

Significantly, however, the Court noted that "[a]dvertising that is false, deceptive, or misleading of course is subject to restraint," 433 US at 383, and:

    ". . . advertising claims as to the quality of services - a matter we do not address today - are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction." 433 US at 384.

The decision of In re R.M.J., 455 U.S. 191 (1982), applied the reasoning used in Bates and held that a lawyer's advertisement of practice in particular areas of the law could not be absolutely prohibited because it was not misleading. The guidelines enumerated by the Supreme Court are helpful to this opinion:

    "Commercial speech doctrine, in the context of advertising for professional services, may be summarized generally as follows: Truthful advertising related to lawful activities is entitled to the protection of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proven that in fact such advertising is subject to abuse, the state may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the state may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive. Thus, the Court in Bates suggested that the remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation. Although the potential for deception and confusion is particularly strong in the context of advertising professional services, restrictions upon such advertising may be no broader than reasonably necessary to prevent the deception.

    "Even when a communication is not misleading, the state retains some authority to regulate. But the state must assert a substantial interest and the interference with speech must be in proportion to the interest served. [Citations omitted.]" 455 US at 203.

Administrative Order 1978-4 is consistent with Bates and In re R.M.J. because it allows advertising "that is not false, fraudulent, misleading or deceptive." MCPR DR 2-105(A)(4) is not in conflict with the order because it attempts to prevent misleading of the general public by allowing advertising as a specialist only in accordance with rules from "the authority having jurisdiction under state law." This rule is "no broader than reasonably necessary" because it does not effect an absolute prohibition on advertising as a specialist.

In the absence of specific rules concerning specialization, it would be inherently misleading for a lawyer to advertise as a "specialist." Holding oneself out as a "specialist" implies that one's qualifications have been reviewed and acknowledged by an entity authorized and having the expertise to do so. Therefore, it is improper to designate oneself as a "specialist" per se.

However, for a lawyer to advertise as "specializing" in a particular field of law would be ethical if it is in fact true. A determination of whether one may advertise as "specializing" in a certain area of the law in accordance with Admin. Order 1978-4 should include the following considerations:

  1. Whether designation as specializing in a given area of practice would be inherently misleading. Even designation as "specializing in general practice" would be inherently misleading because the words, "special" and "general" are mutually exclusive.

  2. Percentage of practice time concentrated on that area of practice. Inherent in the claim of specialization is the notion that a practitioner concentrates some minimum amount of time, energy and practice in a particular area. This notion would seem to be at war with multiple listings of areas of specialization, but it could not automatically rule out more than one claimed area.

  3. Years of practice concentrated in that area.

  4. Continuing legal education in that area.

  5. Peer recognition as a specialist in that area based upon referrals, awards, committee memberships, etc.

  6. Research in that area published in legal journals.

  7. Teaching assignments based upon expertise in that area.

  8. Other relevant special factors.

These guidelines are intended to be illustrative, not conclusive or comprehensive. A decision to advertise as specializing in a particular area of law should be based upon an unbiased evaluation of one's legal expertise, and should not be motivated by greed or self-interest. United States Supreme Court decisions have developed some general guidelines which require consideration. As stated previously, however, a lawyer will be best guided by his or her own objective ethical judgment.

It should be noted that a Minnesota disciplinary rule similar to MCPR DR 2-105(A)(4) was held unconstitutional on its face by the Minnesota Supreme Court, in Johnson v. Director of Professional Responsibility, 341 NW2d 282 (1983). The petitioner appealed the admonition he received for advertising his certification as a "Civil Trial Specialist" by the National Board of Trial Advocacy. The Court vacated the admonition and stated:

    ". . . it appears that DR 2-105(8) is too restrictive. The rule is designed to prevent misleading an uninformed public by claims of specialization and quality of services. That in and of itself is a meritorious goal. But the method used to achieve that goal is to impose a blanket prohibition on all commercial speech regarding specialization until the Minnesota Supreme Court promulgates rules describing what specialty designation will be accepted and how to get that designation. In view of the overbreadth of the rule, the lack of presentation to this court of proposed rules and the finding of the panel that this advertisement was not misleading or deceptive, there is no basis for upholding the rule in this case."

The Minnesota Court also commented that "NBTA applies a vigorous and exacting set of standards and examinations on a national scale," and apparently considered the NBTA an authority competent to certify lawyers as specialists.

 
     

 

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