Special rules for specialists.

• Author: Hornsby, Will
• Position: The Ethical Marketer

Lawyers who practice law in a narrow niche are often anxious to tell prospective clients their area of "specialization." Likewise, prospective clients often look for the "go-to" lawyer and want to know the lawyer's area of "specialty." However, no words are more regulated within the state ethics rules than "specialist" and its derivatives, "specialization," "specialty" and "specialize."

In fact, in almost every state, a separate, or special--if you will--rule exists just to govern the use of the term "specialist." This is Rule 7.4 of the ABA Model Rules and a comparable number in most states. The problem is, like many of the ethics rules governing legal marketing, that the rules vary state by state.

In the 1970s, some states began to offer certification of specialties in various fields of practice such as civil litigation, probate and family law. In order to become certified as a specialist, a lawyer has to go through a rigorous process that usually involves peer review, heightened continuing legal education requirements, a level of practice experience and accomplishment and testing. This process separates lawyers who are certified as specialists from those who merely proclaim to be specialists. About a dozen states have programs of certified specialization. Some states continue to have ethics rules designed to protect this designation.

Fundamentally, the state rules are divided into three categories. Current ABA Model Rule 7.4 separates the concepts of "specialization" and "certification of specialty." Lawyers in states that have adopted the current version of the Model Rule may indicate they are "specialists" even if they are not certified, but, the comment notes, "such communications are subject to the 'false or misleading' standard" prohibiting a lawyer from advertising in a way that creates a misrepresentation. So, a lawyer in these states who is truly a specialist by virtue of experience and skill can say so.

Most states embrace rules that reserve the designation of "specialist" to those who have been certified, either by the state or by an entity that is approved by the state, such as the National Board of Trial Advocacy. Lawyers advertising in these states may say they are certified as a civil litigation specialist, for example, by the certifying entity. Lawyers may not, however, indicate they are specialists in the absence of that qualified certification, and generally the statement must specifically identify the certifying...