Opinion #203. Specialization
Vacating Opinion #121
Issued by the Professional Ethics Commission
Date Issued: April 13, 2011
Bar Counsel has asked the Commission to reconsider its decision in Opinion No. 121 in light of the enactment of Maine Rule of Professional Conduct 7.4(a). In Opinion No. 121 and under the facts given in that matter pertaining to the advertisement in question, the Commission determined under Maine Bar Rule 3.8 that “…a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law or that his practice is limited to or concentrated in particular areas of law. A lawyer shall not represent publicly or imply that the lawyer is a recognized, designated or certified specialist.” Further, the Commission noted that “Maine Bar Rule 3.9(a) prohibited false, deceptive or misleading advertising” and Maine Bar Rule 3.9(b)(4) defined that prohibition “…to include any statement or claim that states or implies that a lawyer is a specialist other than as permitted by Maine Bar Rule 3.8.” The Commission also noted those exceptions as set forth in Maine Bar Rule 3.8 only related “…to (1) statements regarding practice limitation or concentration, (2) attorneys practicing patent, trademark and admiralty law, (3) advertising directed to other lawyers, (4) lawyer referral services and (5) specialty designations as permitted by the Supreme Judicial Court. Other than the exceptions in Maine Bar Rule 3.9, Maine Bar Rule 3.9(b)(4) prohibited any statement even ‘implying’ specialization.”
The Commission concluded, based on the facts given in Opinion No. 121, that Maine Bar Rules 3.8, 3.9(a) and 3.9(b)(4), when read together, and in light of the apparent policy purpose, prohibited the advertisement in question. Further, the Commission opined that Maine Bar Rule 3.9(b)(4) clearly prohibited a lawyer stating that he or she is a “specialist” or “specializes” in a particular field.
The Maine Supreme Judicial Court adopted the Maine Rules of Professional Conduct, effective August 1, 2009. On the same date, Maine Bar Rule 3 (Code of Professional Responsibility) was abrogated. Currently, Maine Rule of Professional Conduct 7.4(a) provides that “a lawyer may communicate the fact that the lawyer does or does not practice, concentrate or specialize in particular fields of law.” Comment (1) to Rule 7.4(a) further points out that the “…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 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 to Rule 7.1 to communications concerning a lawyer’s services.”
With the enactment of Maine Rule of Professional Conduct 7.4(a), the Commission recognizes Opinion No. 121 is now obsolete. Further, the Commission notes that Opinion No. 121 actually became obsolete by a February 15, 1994 amendment to former Maine Bar Rule 3.8. For the reasons stated above, the Commission hereby withdraws its Opinion No. 121.