YourABA March 2013 Masthead

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Think twice before you call yourself
an expert

By Peter Geraghty, director, ETHICSearch and
Sue Michmerhuizen, ETHICSearch Counsel

ABA Center for Professional Responsibility

You have been in practice for 15 years. After starting out as a general practitioner, you found your caseload to be largely made up of employment law matters and after five years decided to limit your practice to that area. You have family who are union members, and word-of-mouth advertising has been positive. Results from your work have been satisfying to clients, and your familiarity with the various laws relevant to employment matters is now solid. You teach a course at a local law school on employment law and frequently give workshops and guest lectures at seminars on the same topic. Can you now say you are an “expert” in employment law on your website?

You should think twice before doing so.

The ethical prohibitions against referring to oneself as an expert come from case law and ethics opinions construing ABA Model Rules 7.1 (Communications Concerning a Lawyer’s Services), 7.2 (Advertising) and 7.4 (Communication of Fields of Practice and Specialization).

The scope of Rule 7.1 is very broad and covers all communications about a lawyer’s services, including business cards, announcements, social media postings, tweets and lawyer websites. Although Rule 7.2 (lawyer advertising) has a narrower focus, it incorporates by reference the restrictions imposed by Rule 7.1. Read together, these rules may be implicated in any communication in which the lawyer describes his abilities and accomplishments on social media, as well as those in more traditional advertising.

The core requirement of Rule 7.1 is that communications to potential consumers of legal services must not be false or misleading. Viewed through that lens, even statements that are technically true can give an impression beyond that intended by the lawyer. While it is true the lawyer in the above hypothetical has had a great deal of experience in employment law, calling oneself an expert could imply a level of certainty about the success of a representation that cannot be accurately predicted.

Put another way, use of the term expert is a subjective claim that leaves much to the reader’s imagination. In doing so, it can easily cross the line into false and misleading communication. State bar ethics opinions are unanimous on this point. See Iowa State Bar Opinion 02-04 (2002) (designation “expert” is not permitted under the ethics rules). See also Mississippi State Bar Opinion 206 (1993) (law firm may not use terms such as: most expert and experienced, expertise, depth of experience since such terms and phrases are potentially misleading); Ohio Supreme Court Board of Grievances and Discipline Opinion 2005-6 (2005) (lawyers may not participate in a television station’s advertising and public service program entitled “Ask the Expert” because lawyers may not hold themselves out as “experts”); Tennessee Formal Ethics Opinion 2004-F_149 (2004) (lawyers may not claim that they are “No. 1,” “one of the best,” “better,” “top,” “excellent,” “qualified,” “highly qualified,” “experienced,” “reputable,” “efficient” or “preferred” because such claims are unverifiable); Virginia State Bar Opinion 1750 (3/20/01, revised 4/4/06 and 12/18/08) (lawyers may not claim to be an “expert” or to have “expertise”); and South Carolina Bar Opinions 03-10 (2003) and 12-03 (2012) (lawyer may not participate in website that invites members of the public to ask questions of professionals who are characterized as experts).

Lawyers have been disciplined for making misleading claims of expertise. See In re PRB Dockett No.2002.093, 177 Vt. 629, 868 A2d. 709 (2005) (affirming discipline imposed upon lawyer who advertised in the local Yellow Pages as The Injury Experts and used a list captioned by the words “We are experts in” and listed several areas of law; court noted statements carried an “ implicit statement of superiority with a serious potential to mislead the consumer”); In re Wells, 392 S.C. 371, 709 S.E.2d 644 (2011) (lawyer publicly reprimanded and fined for, among other things, making claims of expertise in advertisements without having been certified as an expert); and In re Richmond’s case 152 N.H. 155, 872 A.2d 1023 N.H. (2005) (lawyer suspended for misrepresenting that he had expertise in securities law).

Higher standard of care

Another factor to consider is that to the extent that a lawyer holds himself out as having expertise in a particular area of law, he may be held to a higher standard of care than other lawyers. Similarly, when a lawyer claims to be a specialist or to have special skills or ability in a certain area, many courts will use a higher standard of care to evaluate the lawyer’s legal services. See, e.g., Duffey Law Office, S.C. v. Tank Transport, Inc. 194 Wis.2d 674, 535 N.W.2d 91 (Wis.App., 1995) and Rhodes v. Batilla, 848 S.W.2d 833 (Tex. App. 1993) (lawyer who held himself out as tax specialist “was properly held to the standard of care which would be exercised by a reasonably prudent tax attorney”). Communicating that one is an expert might raise the bar on performance before the facts of the case are known.

Model Rule 7.4

Claims of expertise may also implicate Rule 7.4. Rule 7.4 (d) permits a lawyer to state that he is a specialist in a particular area of the law so long as he complies with the terms of the rule that states as follows:

(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.

Paragraphs 1 and 3 of the Comment to Rule 7.4 provide further:

[1] Paragraph (a) of this Rule permits a lawyer to indicate areas of practice in communications about the lawyer’s services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted to so indicate. A lawyer is generally permitted to state that the lawyer is a “specialist,” practices a “specialty” or “specializes in” particular fields, but such communications are subject to the “false and misleading” standard applied in Rule 7.1 to communications concerning a lawyer’s services.

… [3] Paragraph (d) permits a lawyer to state that the lawyer is certified as a specialist in a field of law if such certification is granted by an organization approved by an appropriate state authority or accredited by the American Bar Association or another organization, such as a state bar association, that has been approved by the state authority to accredit organizations that certify lawyers as specialists. Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law. Certifying organizations may be expected to apply standards of experience, knowledge and proficiency to ensure that a lawyer’s recognition as a specialist is meaningful and reliable. In order to ensure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.

(The current structure of Rule 7.4 that allows for the certification process is due to Peel v. Attorney Registration and Disciplinary Commission 496 U.S. 91 (1990) in which the Supreme Court held that states cannot categorically prohibit a lawyer from stating that he or she is a specialist in a particular area of the law if the claim is true, and that if a bona fide, disinterested organization certifies that a lawyer is a “specialist,” states must allow the claim to be made. Justice Marshall, in his concurring opinion, stated that states can still regulate truthful claims of specialty, for example, by demanding disclaimers or the identification of the certifying source because they are still potentially misleading, but agreed that an outright proscription offends the First Amendment.)

Some state bar ethics opinions have considered the term “expert” to be analogous to the term “specialist” under Rule 7.4. See Connecticut Bar Association Opinions 05-18 (2005) (lawyer’s practice area is not recognized as a specialty in Connecticut, he must not state or imply that he is a specialist or expert in this field) and 03-04 (2003) (law firm may state that the lawyer has “extensive experience” or “is knowledgeable” about an area of law even though the lawyer is not a “specialist”; lawyer may not be described as being an “expert,” or having “expertise” or “substantive expertise,” these terms imply lawyer is specialist), Maryland State Bar AssociationOpinion 00-21 (1999) (lawyer may not avoid prohibition on specialty designations by using the term “expert” instead of “specialist”); and Bar Association of Nassau CountyOpinion 1-12 (2012) (advertising may not refer to the lawyer as an”expert” unless the lawyer holds a certificate as such).

For further information on lawyer specialization and lawyer specialization certifying organizations, visit the ABA Standing Committee on Specialization’s website.

As always, bear in mind that the rules of professional conduct as adopted by the various states can vary from the ABA Model Rules. The lawyer advertising rules are frequently modified from the ABA Models by the adopting jurisdictions. For example, Florida, Indiana, Louisiana, Missouri, Montana, New Mexico, New York, South Dakota, Texas and Virginia have added restrictions against the use of statements that tout a lawyer’s past victories. Of these, Florida, Indiana and Louisiana also expressly prohibit statements that promise results. The District of Columbia, Florida, Ohio and Oregon prohibit statements that cannot be verified. With those variations in mind, remember that it is wise to check the rules that apply in any state where your advertising is likely to appear. For further information on lawyer advertising, generally, visit the ABA Professionalism & Ethics in Lawyer Advertising webpage. This page includes a document entitled “Differences between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct as of January 1, 2013.”

Examples of state rules of professional conduct regarding the use of the term “expert” include the following:

Mississippi Rule 7.4(a) Legal Service Information: Each lawyer or law firm that advertises his, her or its availability to provide legal services shall have available in written form for delivery to any potential client:
(1) A factual statement detailing the background, training and experience of each lawyer or law firm.
(2) If the lawyer or law firm claims special expertise in the representation of clients in special matters or publicly limits the lawyer’s or law firm’s practice to special types of cases or clients, the written information shall set forth the factual details of the lawyer’s experience, expertise, background and training in such matters. Further, any advertisement or written communication shall advise any potential client of the availability of the above information by prominently displaying in all such advertisements and communications the following notice: free background information available upon request.
See also Mississippi Rule 7.6: Communication of Certification or Designation.

Montana Rule 7.4(a): A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may also communicate that his or her practice is limited to or concentrated in a particular field of law, if such communication does not imply an unwarranted expertise in the field so as to be false or misleading under Rule 7.1.
(Note: The remainder of Montana Rule 7.4 is identical to the ABA Model Rule.)

Rhode Island Rule 7.4(d)(3):
(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association;
(2) the name of the certifying organization is clearly identified in the communication; and
(3) the lawyer also includes, as part of the same communication, the disclaimer that:

“The Rhode Island Supreme Court licenses all lawyers in the general practice of law. The court does not license or certify any lawyer as an expert or specialist in any particular field of practice.” (As adopted by the court on February 16, 2007, eff. April 15, 2007.)

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