Opinion #121. Specialization

Issued by the Professional Ethics Commission

Date Issued: February 4, 1992

This opinion has been made obsolete by M. R. Prof. Conduct 7.4(a) and Opinion No. 203, issued by the Professional Ethics Commission on April 13, 2011.

FACTS

An attorney’s advertising in the “yellow pages” reads in part that “our firm specializes in representing workers and other injured persons.” The attorney has inquired as to whether the quoted portion of the ad violates Maine Bar Rule 3.8.

OPINION

Maine Bar Rule 3.8 provides in part:
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.

Rule 3.9(a) prohibits false, deceptive or misleading advertising and Rule 3.9(b)(4) defines that to include any statement or claim that:

States or implies that a lawyer is a specialist other than as permitted by Rule 3.8.

Although it may be argued that Rule 3.8, when read literally, only prevents a lawyer stating that he is “recognized, designated or certified” as a specialist, we conclude that the rules, when read together and in light of the apparent policy purpose, do prohibit the ad in question. Rule 3.9(b)(4) clearly prohibits a lawyer stating that he or she is a “specialist.” The only permitted exceptions are those in Rule 3.8. Those exceptions only relate, however, 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 Rule 3.9, Rule 3.9(b)(4) prohibits any statement even “implying” specialization. The Reporters Notes confirm this reading of § 3.9(b)(4):

The fourth of these categories [Rule 3.9(b)(4)] refers to Rule 3.8 and precludes advertisements asserting or implying specialists’ qualifications unless made in conformity with a Court‑approved program.

Any arguable narrow reading of § 3.9 is inconsistent with the apparent policy purpose of the rule. That rule is intended to protect the public from the possible misleading impact from lawyers holding themselves out to be specialists other than pursuant to a Court‑approved certification system. See Rule 3.8(d).[1]

The fact that the ad uses the term “specializes” rather than “specialist” does not constitute a meaningful distinction. The form of the term, whether as a noun or verb, is in our opinion inconsequential. The plain import of the Rule is to prohibit the phrase in any form.

We conclude therefore that the ad in question is inconsistent with the Bar Rules.


Footnote

[1] We are aware that the Supreme Court in Peel v. Attorney Registration and Disciplinary Commission, — U.S. — 110 S.Ct. 2281, 58 L.W. 4684 (1990) concluded that a lawyer has a constitutional right to advertise his designation as a “Certified Civil Trial Specialist” under a system adopted by the National Board of Trial Advocacy. Other decisions have also recognized a constitutional limitation on restriction of advertising. In Re RMJ, 455 U.S. 1 (1982); Zauderer v. Office of Disciplinary Counsel of the Ohio Supreme Court, 417 U.S. 626 (1985); Spencer v. Justices of the Pennsylvania Supreme Court, 579 F.Supp. 880 (E.D. Penn. 1984), Daves v. Texas State Bar, 691 S.W.2d 784 (Tex. 1986) and Ex Parte Howell, 487 So.2d 848 (Ky. 1986). However, the facts of Peel differ from those presented to the Commission in this case, since unlike Peel, the inquiring lawyer has not demonstrated that he is in fact certified by any professional organizations. More importantly, the Commission has traditionally held that its jurisdiction is limited only to interpreting the Bar Rules and that it has no authority to opine on questions of law. While it is conceivable that, in view of Peel, there may be a question as to the continuing validity of Rules 3.8 and 3.9(b)(4), consideration of such constitutional question is beyond the Commission’s authority.


Enduring Ethics Opinion