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June 1, 2014
Proposal to allow noncertified lawyers to use ‘specialist’ in advertising scuttled

By Gary Blankenship
Senior Editor

A proposed rule change to allow noncertified lawyers to refer to themselves as “specialists” in their advertising and communications with the public has been withdrawn from the Bar’s Standing Committee on Advertising.

Committee member Mike Faehner pulled his suggested amendments to Rule 4-7.14 at the committee’s May 13 meeting when it became apparent he had little support from other committee members.

Rule 4-7.14, among other things, provides that only lawyers who are board certified may refer to themselves as “experts” and “specialists,” or use related words such as “expertise” and “specializing,” in advertising.

Faehner proposed changing the rule so that noncertified lawyers could refer to themselves as “specialists” as long as they limited their practice to certain areas of law. The proposed rule would have read, “In the absence of such board certification or other equivalent certification, a lawyer may communicate the fact that the lawyer limits his or her practice to one or more fields of law or specializes in one or more fields of law.”

He proposed changing the comment to the rule to help explain what would be allowed: “A lawyer may state that a lawyer is a specialist in, specializes in, has expertise in, or is an expert in a particular field of practice 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.”

‘‘The public doesn’t understand what board certification is,” Faehner said. “I think what the [proposed] rule does is gives them more focus in branding and marketing in that they can . . . focus on being an expert and board certified and really get that message out. I think there’s a lot of confusion when we start using the term ‘specialist.’”

He also argued that it is unfair to prevent lawyers who restrict their practices to certain areas from saying they specialize in those areas.

But Jack Pelzer, chair of the Board of Legal Specialization and Education, which oversees the certification program, argued Faehner’s proposal presented dangers to potential clients seeking qualified lawyers.

“Frankly, the way this is written right now, someone could come out of law school, they could say, ‘I got the highest grade on my family law exam, so I’m going to limit my practice to family law and call myself a ‘specialist,’” before he’s got his first case. Obviously, we don’t want that,” he said. “There is really only one objectively verifiable way to say someone is an ‘expert’ or a ‘specialist’ and that’s by board certification. There is no other way for anyone on the advertising committee or anyone in the Bar to look at someone’s ad and say this is not misleading.”

Pelzer added it’s valuable for lawyers to tell the public that they limit their practices or only accept cases in certain areas, “but to use the word ‘expert’ or ‘specialist’ has a connotation of a higher level of expertise than the average lawyer and unless that is objectively verifiable I think it is misleading and violates the general rule on misleading advertising.”

Committee member Al Alsobrook, a citizen member of the panel, said it would be impossible to determine if a noncertified lawyer could meet an objective standard to use “specialist” or “expert” in an ad. He also argued that the public does understand that the word “specialist” implies greater knowledge and skill, noting the medical field also has certification.

“You want the doctors to be specialists and the lawyers to be experts,” he told Faehner. “I go to a heart specialist; I don’t go to a heart expert.”

If the committee had backed Faehner’s changes, that would not have been the last word. The proposal then would have gone to the Board of Governors, and if approved there, been submitted to the Supreme Court.

[Revised: 11-22-2015]