A law firm may not advertise that it “specializes” in a certain area of law where no member of the firm is a State Bar Board certified specialist. Further, if a member is
board certified, firm advertising must identify that lawyer’s name and not
state that the “firm” specializes in any particular area of law. [ER 7.1(a), 7.4]
The inquiring attorney is a member of a small firm where each attorney practices exclusively in the areas of estate planning, wills, trusts, probate, trust administration, and related areas. No member of the firm is a certified specialist in any practice area recognized by the State Bar of Arizona Board of Legal Specialization. The attorney anticipates obtaining specialist certification in the near future and seeks guidance from the Committee about firm advertising he is considering both now and after his certification is attained. Specifically, he inquires about the following: (1) whether the firm can advertise as "specializing in estate planning" or "specializing in wills, trusts, and estate planning" without identifying individual member attorneys and where no one member is a certified specialist in that area; and (2) whether the firm can advertise in a similar manner following his specialist certification.
Whether a law firm can advertise as "specializing" in a certain area of practice where no member of the firm is a board certified specialist in that area of practice. Further, whether the law firm can advertise in that same manner where at least one member of the firm is a certified specialist, yet those specialists are not specifically identified in the advertisement.
ETHICAL RULES INVOLVED
ER 7.1 Communications and Advertising Concerning a Lawyer's Services
(a) A lawyer shall not make a false or misleading communication about the lawyer or lawyer's services. A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading;
(2) is likely to create an unjustified expectation about results the lawyer can achieve or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law;
(3) compares the lawyer's services with any other lawyers' services, unless the comparison can be factually substantiated;
(4) is a factual statement which cannot be factually substantiated.
ER 7.4 Communication of Fields of Practice
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is a specialist except as follows:
(a) a lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "patent attorney" or a substantially similar designation;
(b) a lawyer engaged in admiralty practice may use the designation "admiralty", "proctor in admiralty" or a substantially similar designation; and
(c) no lawyer shall state or imply that the lawyer is a specialist in any area of law unless the lawyer has been certified by the Arizona Board of Legal Specialization or is certified by a national entity which has standards for certification substantially the same as those established by the board.
In Ariz. Op. 87-11, the Committee specifically examined the inquiring attorney's use of the word "specialty" on stationary, where the attorney actually was not certified as a specialist in any area of the law by the Arizona Board of Legal Specialization. The Committee examined what are essentially the same provisions of ERs 7.1 and 7.4 at issue here in opining that the lawyer was prohibited from utilizing stationary in that manner. The Committee reasoned that use of the word "specialty" in the lawyer's letterhead "constitut[ed] a statement or implication that the lawyer is a specialist in fields of commercial law and litigation." "Most laymen would believe that one who has a 'specialty' is a 'specialist'" - an improper implication under ER 7.4. Further, the Committee opined that a lawyer's use of the word "specialty" or any derivation thereof would be in violation of ethical standards if the attorney was not a certified specialist as recognized by the State Bar. The Committee used as an example the following words that also offended ER 7.4; "specialist"; "specializes"; "has special emphasis"; and/or any other phrase which has as its base the use of the word 'special'."
The following commentary to ER 7.4 also is instructive, recognizing a balance between allowing the practitioner to indicate certain areas of practice and the implication that counsel has actually attained the certification of specialist by the State Bar:
This rule permits a lawyer to indicate areas of practice in communications about the lawyer's services; for example, in a telephone directory or other advertising. If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted so to indicate. However, stating that the lawyer is a "specialist" in a particular field is not permitted. These terms have acquired a secondary meaning implying formal recognition as a specialist. Hence, use of these terms may be misleading unless the lawyer is certified or recognized in accordance with procedures in the state where the lawyer is licensed to practice.
ER 7.4 Comment (emphasis added)
The commentary effectively captures the reasoning supporting Ariz. Op. 87-11 and the prohibition against counsel's use of "specialty" designations in describing areas of practice.
In the present inquiry, the firm's proposed advertisement of "specializing" in estate planning or related fields equally offend the principles of ERs 7.4 and 7.1. The term "specializing" has taken on a secondary meaning, implying to the layperson that members of the firm actually are certified in those disciplines by the State Bar. Where no member of the firm has certification status, it is improper to employ that type of advertising in consideration of ER 7.4. Use of the term "specializing" in that context also runs afoul of the principles within ER 7.1; the advertising claim is misleading and may lead the public to have unjustified expectations about the skill level of practitioners within the firm.
Of course, the prohibited use of the word "specializing" (and derivations thereof) would not prohibit the firm from explaining that its lawyers work primarily in the area of estate planning or other fields of the law. While this Opinion is not meant to comment upon the ethical propriety of all descriptors to identify a practitioner's area of practice, suffice to say that language which does not imply a specialist designation can be used by the lawyer in advertising that describes his services.
With respect to the second inquiry presented, the Committee also is of the opinion that the proposed advertising would violate ERs 7.4 and 7.1. Even where one member of the firm is a properly recognized certified specialist, the failure to specifically describe that dynamic in advertising for the firm as a whole is misleading. The rationale supporting Ariz. Op. 87-11 and above-cited commentary to ER 7.4 apply with equal force to advertising claims made by the firm as a whole. Where the firm claims as an entity that it is "specializing" in certain areas of practice, the implication is that the firm-rather than discrete individual members-has attained specialty certification by the State Bar. Yet, it is the practitioner that holds the specialist certification and not the legal entity with which he or she is associated. Accordingly, the firm is prohibited from making blanket statements of specialization without designating which specific members of the firm have certification status.
A law firm is prohibited from advertising that it is "specializing" in a particular field of the law where no member of the firm actually has attained specialist certification by the State Bar of Arizona Board of Legal Specialization. Words that are derivative of the root "special" - such as "specializing", "specialist", "special emphasis", "specializes", etc. - are all prohibited under the ethical rules. Finally, in the absence of particularly designating which individual members of the firm have attained board certification status, a law firm ethically is prohibited from advertising in the same manner. Advertising that does not observe these restrictions is misleading and in violation of ERs 7.4 and 7.1.