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January 1, 2014
Ad panel reviews the use of ‘specialist’ in advertisng

Only board certified lawyers may currently use the term

Should Bar members who are not board certified be able to say in advertisements that they are specialists or specialize in a particular area of law?

The Standing Committee on Advertising discussed that possible rule change at its December 10 meeting. It took no votes and did not make any decision but instead asked that a member of the Board of Legal Education and Specialization attend the committee’s next meeting January 23 at the Bar’s Winter Meeting in Orlando.

It also asked that the BLSE consider the matter when it meets the following day.

Mike Faehner Under current Bar rules, only lawyers who are board certified, or certified by agencies recognized by the Bar, can say in advertisements that they are board certified, that they are experts in an area of law, or that they are specialists or specialize in an area of law.

Committee member Mike Faehner, who initiated the push to reconsider the rule, said he’s more concerned with allowing noncertified lawyers to be able to say they are specialists or specialize in particular areas of law, while still reserving the word expert and its derivatives for certified lawyers. He said that change is fairer for both lawyers and for consumers when they look for legal help.

“I think we need to preserve the word ‘expert’ for board certified. The problem we have with the rule is the word ‘specialize’ and the variations of it,” he said. “This is really opening up on how lawyers can get information to the public in a better way without fear they’re violating the rules.”

Faehner contended that the meanings of specialist and specializes have changed in recent years with fewer lawyers having general practices and more concentrating on two or three areas of law. He cited the example of an attorney who devotes his practice to cyber security, for which there is no board certification, and asked if it would be misleading for that attorney to say in an ad that he specializes in that area.

The committee looked at a tentative amendment to Rule 4-7.14 and its comment which would allow a lawyer to say he or she is a specialist “even if the lawyer is not board certified, but only if the statements are truthful and not misleading to the public. For example, a lawyer whose practice is limited to a particular area of practice may properly advertise specialization in that area of practice.”

Other committee members agreed the issue should be looked at, but also cautioned it could be difficult to devise an enforceable standard when noncertified lawyers can say they are specialists.

“It does seem it’s going to be a little tough, when a lawyer says he’s a specialist, but only if it’s truthful and verifiable,” committee Chair Adam Schwartz said.

Faehner said a standard could be set requiring a lawyer to devote 30, 40, or 50 percent of his or her practice to an area before claiming to be a specialist. But Bar counsel Kathy Bible said that could be a difficult standard to enforce.

“It doesn’t make sense to come up with some change that’s going to be difficult or impossible to enforce,” Schwartz said.

Committee member Mel Wright added: “What we’re talking about is loosening the standards so people who really deserve to be called experts or specialists in their field have an opportunity to do that.” Noting that he is certified, Wright continued, “There are plenty of lawyers out there who are better than me . . . who deserve to call themselves a specialist and cannot.”

[Revised: 07-29-2014]