By Gary Blankenship
Bar rules should not be changed to allow non-certified attorneys to advertise they are specialists or specialize in a particular area of law, according to the chair of the Board of Legal Specialization and Education.
Jack Pelzer appeared before the Standing Committee on Advertising recently as it considered a proposal that Rule 4-7.14 be amended. The rule mandates that only lawyers holding board certification can use the words “expert” and “specialist” and their derivatives in advertisements and communications with the public.
The committee, when it met at the Bar’s Winter Meeting, considered a draft rule amendment to allow all lawyers to use those terms as long as they were objectively verifiable, but committee members agreed that “expert” should remain the exclusive purview of certified lawyers.
Pelzer told the panel he initially focused on alternatives that could be used by non-certified lawyers such as talented, experienced, knowledgeable, well informed, skillful, and adept. But then in the wake of a lawsuit filed against the Bar (see story in the January 15 Bar News), he saw the real issue is what would be allowed under Rule 4-7.13, which requires that such descriptive words be objectively verifiable.
At that point, he realized that Rule 4-7.14 and 4-7.13 work together.
“It occurred to me all these synonyms for expert and specialist would be rejected because they are not objectively verifiable, except there is one way to be objectively verifiable and that is by board certification,” Pelzer said. “We are not saying by virtue of being board certified you are better. What we are saying is lawyers who have been board certified have been objectively verified to be experts and specialists.
“Adopting this [rule change] would be a major step backward from the objectively verifiable standard you have worked hard to have in the [advertising] rules.”
He also said in the 30-year history of the certification program, “expert” and “specialist” have become equated with certified lawyers.
“The words ‘expert’ and ‘specialist’ have acquired secondary meanings in this marketplace and that secondary meaning is board certified. They are synonymous,” Pelzer said.
The committee took no action on the proposed rule change, but tabled it until a future meeting.
Members heard Bar President Eugene Pettis, who stopped in during the deliberations, voice skepticism about the rule change. He said during his 30 years of practice, expert and specialist have been linked to board certification, and have been useful for the public when they seek expert lawyers.
“If our rules start regressing to allow a free for all, I have some serious concerns where we are heading with advertising in general,” Pettis said.
President-elect Greg Coleman noted that the rules specifically allow lawyers to use terms that their practices are concentrated on, focused on, or limited to whatever area they wish, as long as that is truthful and objectively verifiable.
Committee member Al Alsobrook, a former public member of the Bar Board of Governors, said he agreed with Pelzer that no rule change is needed. He said that about 5,000 certified lawyers have taken the time, spent the money, and passed the certification test and should continue to have the exclusive right to use expert and specialist.
Committee member Mike Faehner argued that the word specialist now has a broader application because of the changing nature of legal practices. He said the use of expert should remain with certified lawyers.
“I basically limit or specialize in a certain area of law, but there is no board certification in that area,” he said, adding he heard from another lawyer who practices in the highly limited area of cyber security. “He was very persuasive in regard that his inability to use the word specialize or specialist was curtailing his ability to get that word out to the public.”
Faehner also said when certification was started, many, if not most, lawyers were general practitioners but the changing nature of the legal profession has made most lawyers concentrate in one or a few areas. He noted that the LinkedIn business networking site uses the word specialist and specialize to refer to areas where lawyers practice and said the meaning of the word is changing.
“I’ve talked to a lot of criminal defense lawyers. They are one of the largest groups who limit their practice. Why shouldn’t they be able to say they specialize?” Faehner asked.
But Pelzer and Pettis said there were adequate terms for lawyers to use to communicate their practices are focused on specific areas.
“If you let some of the lawyers run around saying they are specialists and you let some run around saying they are experts, to the public that’s the same thing,” Pettis said.