Non-certified expert or specialist? The proof is up to you
Lawyers no longer have to be certified by The Florida Bar to say they are experts or specialists in their advertisements, but the Bar will not advise them on what level of training, education, and experience is “objectively” necessary to say they have expertise or specialize in a certain area of law.
The Standing Committee on Advertising upheld a recommendation from Bar staff not to issue an opinion to a Bar member who inquired whether the lawyer could objectively verify a claim of specialization or expertise based on the lawyer’s background.
It was one of several actions by the committee on April 7 on issues ranging from firm website addresses to claims made in ads to law firm slogans.
The question regarding the use of expertise or specialization in ads came from a lawyer who cited trial, appellate, and CLE teaching in an area of law, as well as being a certified mediator and formerly chairing a procedural rules committee.
Until 2015, only lawyers who were certified by the Bar in certain areas of law were allowed to say they were experts or specialists. But that year, a federal judge struck down the rule, saying non-certified lawyers also could be experts and the rule hindered lawyers from saying they were experts or specialized in areas for which there were no Bar certifications.
The Bar eventually proposed and the Supreme Court approved a rule amendment that non-certified lawyers could claim expertise or specialization if they “objectively verify the claim based on the lawyer’s education, training, experience, and substantial involvement in the area of practice in which specialization or expertise is claimed.” Law firms can make the same claim if they demonstrate one member can meet that standard.
Bar Ethics Counsel Elizabeth Tarbert said Bar staff should not be in the position of determining when that standard is met.
“Staff unanimously recommends that you not put yourselves or us in the business of objectively verifying the information,” she said. “We have to take the person’s word for it…. Our recommendation is you keep the position you had in the past, which is anything the rules say you have to objectively verify you have to be able to do it yourself.”
“The enforcement or check would come when a lawyer makes a claim…and there’s a [grievance] complaint against me that says [I] clearly don’t know what I’m talking about?” asked committee Chair Jack Adams. “I would then have to present my credentials to the Bar’s discipline arm to verify whether or not that claim was objectively verifiable?”
“Correct,” Tarbert replied.
She said if a non-certified attorney submits an ad for Bar review claiming expertise or specialization, the Bar responds that the ad does not comply with Bar rules unless the lawyer can objectively verify the claim. If the lawyer files a statement claiming that verification, the Bar issues a compliance letter “based on your statement that you can objectively verify that information,” Tarbert said.
If someone files a grievance challenging the ad, then the lawyer would have to submit the proof of his or her expertise and/or specialization, she said.
The committee approved the staff recommendation 11-0.
On other matters, the committee:
• Voted 8-3 that, despite members liking its catchiness, the statement “Better Off with Boohoff” in a legal ad is a comparison to other lawyers and can be used only if it is objectively verifiable. The committee, though, voted 9-2, that the statement cannot be reasonably interpretated as a prediction or guarantee of success.
• Voted 10-1 that the use of “.org” at the end of a private, for-profit law firm’s website address is not misleading because the other parts of the ad clearly show that it is a private firm and. org is not limited to non-profit entities in their web addresses.
• Voted 11-0 that the name “Superior Legal Marketing” and its website URL “Superiorlegalhelp.com” violate Bar rules because it characterizes the skills, experience, reputation, or record of attorneys participating with the lawyer referral service. The committee also found the ads are misleading because it is not clear that it is a referral service, and not a law firm.