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NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics
Opinion #757 –
07/16/2002
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Topic: Certification as specialist; advertising
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Digest: Professional announcements of certification as a specialist
that are distributed to members of the bar or mailed to present and
former clients are “public” communications within the
meaning of DR 2-105 and thus should include the disclaimer set forth in
DR 2-105(C).
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Code: DR
2-101(A); 2-102(A)(2); 2-105(A); 2-105(C).
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QUESTION
Must an announcement that a lawyer has been certified
in a particular field of law by an organization accredited by the
American Bar Association contain the disclaimer set forth in
DR 2?105(C) if it is (a) mailed to members of the local bar
association, (b) reprinted in the local bar association newsletter
distributed to its members, and/or (c) mailed to present and former
clients?
OPINION
The inquirer has recently been certified as an
“elder law attorney” by the National Elder Law Foundation, a
private organization approved for that purpose by the American Bar
Association. The inquirer wishes to
send an announcement to members of the local county bar associations and
to have the announcement reprinted in the local bar association
newsletter, which is distributed to its members
monthly. The announcement would state
that the inquirer has “been certified as an Elder Law Attorney by
the National Elder Law Foundation as accredited by the American Bar
Association.” The announcement
would further state that the inquirer’s practice would continue to
be concentrated in certain areas.
The inquirer asks whether the disclaimer required by
DR 2?105(C)(2) needs to be included when the announcement is
not being disseminated to the general public but only to attorneys who
are members of the county bar associations. The inquirer also asks whether it is permissible to send the
announcement to existing and former clients.
DR 2?105 prohibits a lawyer from
“publicly” identifying himself or herself as a
“specialist” in an area of law unless he or she has been
certified by certain approved organizations. If the lawyer so states, the lawyer must include a disclosure
or disclaimer that (1) the certifying organization is not a
government entity, (2) certification is not a requirement to
practice law, and (3) certification does not necessarily imply
greater competence than other attorneys experienced in the field of
law. The rule states, in relevant
part:
A. A lawyer or law firm may publicly identify one or more areas of
law in which the lawyer or law firm practices, or may state that the
practice of the lawyer or law firm is limited to one or more areas of
law, provided the lawyer or law firm shall not state that the lawyer or
law firm is a specialist or specializes in a particular field of law,
except as provided in DR 2-105 [1200.10] (B) or (C).
B. . . .
C. A lawyer may state that the lawyer has been recognized or
certified as a specialist only as follows:
1.
A lawyer who is certified as a specialist in a particular
area of law or law practice by a private organization approved for that
purpose by the American Bar Association may state the fact of
certification if, in conjunction therewith, the certifying organization
is identified and the following statement is prominently
made: “The [name of the private
certifying organization] is not affiliated with any governmental
authority. Certification is not a
requirement for the practice of law in the State of New York and does
not necessarily indicate greater competence than other attorneys
experienced in this field of law.”
This rule, promulgated in 1999, reflects the holding
in Peel v. Attorney Registration and Disciplinary Commission of
Illinois, 496 U.S. 91 (1990), which recognized
a lawyer’s First Amendment right to state on letterhead
“certified civil trial specialist by the National Board of Trial
Advocacy.” Justice Marshall’s concurring opinion (there was no
majority opinion) found the statement not actually misleading, but
potentially so, and said that a state could require that such statements
be accompanied by disclaimers or disclosure “in order to prevent
that claim [of certification] from being
misleading.” 496 U.S. at
117.
The first question is whether the proposed
announcement constitutes a statement that the inquirer is a
“specialist or specializes in a particular field of law”
within the meaning of DR 2?105. The proposed announcement does not use the word
“specialist” or “specializes” but rather the
term “certified as an Elder Law
Attorney.” In N.Y. State 722
(1999) we applied DR 2?105 to a proposed letterhead notation
that would say “certified by AICP [American Institute of Certified
Planners],” and noted that if membership in a professional
organization “implies certification in a legal field, the
reference must comply with
DR 2-105(C).” We think it
plain from the express references in DR 2-105(C) to certification
by precisely the sort of organization involved here that the reference
to certification proposed would be covered by the rule regardless of
whether the term “specialist” is used.
The next question is whether the announcement
constitutes the “public”
identification of an area of
specialization within the meaning of
DR 2-105(A). There is no question
that announcements sent to newspapers in any form – announcement
cards, press releases, ghost-written articles – will require a
disclaimer. We conclude that
distributing a professional announcement to a number of people large
enough to justify a mass mailing or printing in a newsletter is also
“public” for these purposes. We believe this is a natural reading of the term and accords
with other provisions of the Code as well as with the evident purpose of
the disclaimer.
The term “public” appears not only in
DR 2?105(A) but also in the Code’s general prohibition
on false, deceptive or misleading “public communication[s],”
DR 2?101(A). We have given
this term a broad interpretation consistent with its purpose of
regulating all forms of advertising and
publicity. Thus, we have held
letterhead and business cards to be forms of public communication
subject to DR 2?101(A). N.Y.
State 704 (1997); N.Y. State 557 (1984). Since the specific limitations on use of the term
“specialist” in DR 2-105 are essentially an application of
the general proscription in DR 2?101(A), it makes sense to
read the term “public” in the two provisions in the same
way. We also note that DR 2-102(A)(2)
specifically provides that a “professional announcement
card” must comply with DR 2-105 if it addresses the nature of the
lawyer’s practice. That is not
dispositive – because the two provisions can be read to require
compliance with DR 2?105 only when the professional
announcements are distributed “publicly”
?? but it tends to support a view that professional
announcements should be viewed as a form of publicity subject to these
regulations.
Moreover, the intent of the disclaimer is clearly to
ensure that lay readers and potential clients are not misled as to what
certification as a “specialist”
means. From the point of view of the
provision’s purpose, therefore, a mailing to current and former
clients should include the disclaimer. Further, with almost any mass mailing, and still more with a
newsletter announcement, the sender has little idea where the
announcements are going to end up. Since sending the announcement to other lawyers is intended in
part to encourage lawyers to recommend the specialist to their clients,
it is reasonable to suppose that copies of the announcement or
newsletter item might well be given to the potential clients.
We are aware that two other ethics opinions have
reached the opposite conclusion in somewhat similar
circumstances. In Inf. Op.
No. 970024, the Missouri Chief Disciplinary Counsel concluded that
a similar disclaimer in Missouri’s Rule 7.4 did not need to
be included in an announcement of certification sent to bar association
publications but did need to be included in a press release as well as
on business cards and letterhead.[1] Tenn. 2001?F?144(b) concludes that a
prescribed disclosure regarding the nature of certain certifications
should be included in Martindale-Hubbell or other directories or
websites “available to the general public” but suggests that
the disclosure is not necessary in directories “intended for the
use of lawyers and not actively marketed to the lay
public.”[2] But see Iowa
No. 90?39 (1991) (requiring that disclaimer accompany
certification statement “whether on a professional card or by any
other means or medium of communication,” but not addressing bar
publications). The rules in each of these states are not the same as the rules
here, however. Taking the New York Code
provisions as a whole, and the historically broad interpretation of
“public,” we do not find a basis in the Code for an
exemption for certain mass mailings or publications. [3]
CONCLUSION
A professional announcement card stating a
lawyer’s certification as a specialist that is mailed to members
of the local bar association, reprinted in a newsletter distributed to
those members, and mailed to the lawyer’s present and former
clients should contain the disclaimer set forth in
DR 2?105(C).
(13-01)
[1]
Missouri’s rule refers to “communication[s]” generally
and does not contain the qualifier “public” that is in
DR 5-105(A). The disclaimer required in Missouri is
“that neither the Supreme Court of Missouri nor the Missouri Bar
reviews or approves certifying organizations or specialist
designations.” Mo. Rule of Conduct 7.4.
[2]
The Tennessee rule requires a lawyer who “publishes or broadcasts
a communication with regard to any area of law in which the lawyer
practices” to state whether certification by the Tennessee
Commission on Continuing Legal Education is available in the area of
practice and whether the lawyer has been so certified. Tenn. Sup.
Ct. Rule 8.
[3]
One commentator has suggested that identification as a
“specialist,” which would be prohibited by
DR 2?105(A) if made “publicly,” is common in
legal publications, although the commentator concludes that this
practice finds no support in the Code:
“[L]awyers may apparently hold themselves out as
‘specialists’ or ‘experts’ in particular fields
of law when advertising to the legal profession as opposed to the
general public. Perhaps this is not considered
‘publicly’ identifying an area of practice.
Accordingly, the New York Law Journal and many other legal
publications regularly contain advertisements in which lawyers offer
their services as ‘counsel to the profession’ with a
‘specialty’ in one or more fields of law. The text of
DR 2-105(A) does not reflect this exception, and any claim that a lawyer
is ‘certified as a specialist’ must still comply with DR
5-105(C), but the disciplinary authorities appear untroubled by claims
of specialization in periodicals aimed mainly at other
lawyers.”
Roy Simon, Simon’s New York Code of
Professional Responsibility Annotated 208 (2002).
Related Files
Certification as specialist; advertising (Adobe PDF File)
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