Model Rule 7.4

Reporter's Explanation of Changes

TEXT:

1. Caption: Add reference to "Specialization"

As Rule 7.4 deals with communication of both fields of law in which the lawyer practices and fields of law in which the lawyer claims to be a specialist, the current caption is underinclusive.

2. Paragraph (a): Move first sentence to new paragraph (a)

This change serves to separate the two basic subjects addressed by this Rule: communication of fields of law in which the lawyer practices, as permitted by paragraph (a), and communication of fields of law in which the lawyer claims to be certified as a specialist, as governed by paragraph (d). No change in substance is intended.

3. Paragraph (b): Move current paragraph (a) to new paragraph (b)

As revised, the grant of permission to lawyers who are admitted before the United States Patent and Trademark Office to use the designation "Patent Attorney" is no longer presented as an exception to the prohibition against claiming to be certified or recognized as a specialist, but rather is treated as a separate subject. This is because a claim to be a patent attorney is premised on admission to practice rather than on certification as a specialist and also entails more than a simple designation of an area in which the lawyer practices. No change in substance is intended.

4. Paragraph (c): Move current paragraph (b) to new paragraph (c)

As revised, the grant of permission to lawyers who engage in Admiralty practice to use the designation "Proctor in Admiralty" is no longer presented as an exception to the prohibition against claiming to be certified or recognized as a specialist, but rather is treated as a separate subject. This is because a claim to be a Proctor in Admiralty is not premised on certification but does seem to denote more than a simple designation of an area in which the lawyer practices. No change in substance is intended.

5. Paragraph (d): Replace current paragraphs (c) and alternate (c) with new paragraph (d)

The key substantive change in Rule 7.4 is to replace current paragraphs (c) and alternate (c) with new paragraph (d). One effect of this change is to eliminate the provisions in current paragraph (c) that allow lawyers to claim certification as a specialist even though the certifying organization is not approved by an appropriate state authority (or accredited by the ABA). This is currently permitted so long as the lawyer indicates the absence of such approval in the same sentence as the claim. The Commission does not think that the disclaimer called for by current paragraph (c) provides an adequate safeguard against potentially misleading claims of certification by an unapproved organization. The Commission believes it is both necessary and constitutionally permissible for the states to protect prospective clients against potentially misleading claims of certification by requiring the organizations conferring the certification to be approved by an appropriate state authority or accredited by the ABA.

Paragraph (d) also contains a new requirement that the name of the certifying organization be clearly identified. This will enable prospective clients to make further inquiry about the certification program.

COMMENT:

[1] A minor change has been made to indicate that this Comment refers to paragraph (a) of the restructured Rule.

[2] The first sentence has been deleted because paragraphs (b) and (c) are no longer presented as exceptions to the prohibition against claiming to be certified as a specialist. Other minor changes conform the Comment to the changes in the Rule text.

[3] The Comment has been modified to conform with paragraph (d). This Comment notes that organizations other than the ABA, such as state bar associations, might be approved by a state authority to accredit organizations that certify lawyers a specialists. The Comment has also been modified to speak in general terms about what is signified by certification as a specialist and what should be expected of certifying organizations.

[4] and [5] These Comments have been deleted because they relate to current paragraphs (c) and alternate (c), which have been replaced by paragraph (d).

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