Concept
The Current Specialist Rule
Communications regarding fields of practice and specialization
The Current Specialist Rule
Before 1977, most states barred lawyer advertising outright, and the organized bar condemned it on the view that promoting legal services, like promoting other consumer products, was inherently deceptive.1 Rule 7.2(c) of the Model Rules takes a different course for one kind of claim. It forbids a lawyer to state or imply certification as a specialist in a particular field of law unless the conditions that follow are met.2 Two conditions follow, and the rule joins them with “and,” so the lawyer must satisfy both. The certifying organization must be approved by an appropriate authority of a state, the District of Columbia, or a U.S. territory, or be accredited by the American Bar Association, and the communication must clearly identify that organization by name.3 A certificate from an approved body fails the rule if the communication leaves the body unnamed, and a named certifier fails if no recognized authority has approved or accredited it.
The prohibition reaches implication as well as express statement. A certification claim tells a client that an outside body has measured the lawyer against standards, and the client usually cannot test that claim alone. Wording that creates the same belief does the same harm whether or not the word “certified” appears, and a rule limited to the express word would let a lawyer escape both conditions by changing vocabulary. The question under the rule is therefore what message the communication conveys to a reader.
A line saying that the lawyer's practice is concentrated in elder law describes a field and claims no credential, so it does not engage Rule 7.2(c). The same field can be communicated in two ways, and only the version that suggests an outside credential brings the conditions into play.
Three requirements divide the work. The first condition screens the certifier. The second puts the certifier's name before the reader so the claim can be traced. Rule 7.2(d), which applies to every communication made under the rule, requires the name and contact information of a lawyer or firm responsible for the content.4 The subsections below take them in that order.
Approved Certifying Organization
Rule 7.2(c)(1) requires that the lawyer have been certified by an organization that an appropriate authority of a state, the District of Columbia, or a U.S. territory has approved, or that the American Bar Association has accredited.5 The condition tests the source of the credential. It asks who issued the certificate and whether that issuer has passed a screen, so a lawyer whose sentence is literally true can still fail it. The word “or” gives the lawyer two routes, and either one suffices: approval by the right governmental authority, or ABA accreditation, with no need for both. Passing (c)(1) still leaves the second condition to be met.
A client choosing a lawyer can rarely test competence directly, so a statement that an outside body has certified the lawyer works as a shortcut. The plurality in Peel assumed that some consumers will infer from such a statement that the lawyer's qualifications exceed the general qualifications for admission to the bar.6 The shortcut is only as reliable as the certifier behind it, and the plurality said so: a certification issued by an organization that had made no inquiry into the lawyer's fitness, or that issued certificates indiscriminately for a price, could mislead even if the statement were true.7 The lawyer in that situation really holds a certificate, and the sentence “this organization certified me” is accurate, but the inference the reader draws, that someone vetted the lawyer's qualifications, has no basis. A self-created title is the limiting case, because no organization stands behind it at all.
Peel itself described one way for a state to separate bona fide certifiers from bogus ones: it may require a lawyer who advertises a certification to demonstrate that the certification is available to all lawyers who meet objective and consistently applied standards relevant to the field.8 That method works lawyer by lawyer, and the dissent objected to its cost. On the petitioner's theory, a state that wished to protect consumers from misleading claims would have to provide an individual hearing for each claim of certification, extending to any organization a resourceful lawyer might invoke.9 Rule 7.2(c)(1) can be read as answering that objection by moving the screen from the individual lawyer to the certifying organization. Once an appropriate authority has approved a certifier, or the ABA has accredited it, a later dispute turns on whether the certifier holds that status, and not on a fresh hearing into its standards for every lawyer who cites it.
Florida's rule shows how approval by an appropriate authority can work in one state, because the Florida Bar itself does the screening. A lawyer certified by another state bar may tell the public that the lawyer is “certified,” “board certified,” a “specialist,” or an “expert” in the area of certification if the Florida Bar has determined that the other bar's program grants certification on standards reasonably comparable to those of the Florida certification plan in chapter 6 of the Rules Regulating The Florida Bar, and if the lawyer includes that state bar's name in all communications pertaining to the certification.10 A lawyer certified by an organization whose program the Florida Bar has accredited must include the organization's full name in all such communications.11 In both settings the Florida Bar decides whether the certifier is good enough, which is the work (c)(1) assigns to an appropriate authority. The permitted words, the comparability test, and the naming wording are Florida's own. The Model Rule says only that an appropriate authority of a state, the District of Columbia, or a territory must have approved the organization, or that the ABA must have accredited it, so Florida's text should not be carried into another jurisdiction as the national rule. The state-variation sections below return to Florida.
Swap in a certifier that a state's approving authority has approved, and the same sentence clears (c)(1); the only fact that moved the result is the certifier's status. A lawyer certified by no one is weaker still, because no organization exists to approve or accredit, and any statement implying certification fails (c)(1) at the threshold.
Meeting (c)(1) therefore carries a lawyer only halfway, because the communication must also clearly identify the certifying organization by name.12 The next subsection takes up that second condition.
Naming the Certifier
Rule 7.2(c)(2) requires that the name of the certifying organization be clearly identified in the communication.14 The rule joins this condition to the approved-organization requirement of (c)(1), so a lawyer who states or implies certification as a specialist must satisfy both.15 Where (c)(1) asks who issued the credential and whether that issuer has passed a screen, (c)(2) asks whether the communication tells the reader who the issuer is. A lawyer can hold a genuine credential from an approved organization and still violate the rule if the communication claims certification without saying who certified the lawyer.
A claim of certification is a statement about someone else's judgment, and a reader who is told only that the lawyer is certified cannot learn whose judgment that is. The Peel plurality put the point through a trademark analogy: the strength of a certification is measured by the quality of the organization for which it stands.16 A trademark works because a buyer can see the mark and trace it to a maker with a reputation, and a certification claim works only if a reader can trace it to a certifier in the same way. Once the name is on the page, a prospective client can ask what the organization requires and how it screens applicants, and can give the claim the weight the answers deserve. Without the name, the reader can only accept the credential on faith or discard it.
The name also separates private certification from official action. The plurality concluded that the public understands licenses to be issued by governmental authorities and a host of certificates to be issued by private organizations.17 It read the Peel letterhead as two visibly separate statements, one beginning with the verb “Certified” and identifying the National Board of Trial Advocacy as its source, the other beginning with “Licensed” and identifying states.18 The concurring opinion was less confident. The word “National” in the board's name could suggest a federal agency, and a certification line placed next to a list of state licenses could lead even lawyers to think the states sanctioned the board.19 Both views point toward naming. A communication that names a private organization gives the reader a concrete source to weigh against the licensing authorities the reader already knows, while a bare “certified” leaves the reader to supply an issuer, and the most familiar issuer of credentials to lawyers is the government.
Peel also marks the range of disclosure a state might demand in place of a ban. The concurrence said a state could require a disclaimer that the board is a private organization not affiliated with or sanctioned by the state or federal government, and could require information about the board's requirements for certification, so that consumers' inferences about quality rest on fuller knowledge.20 Rule 7.2(c)(2) asks for less than either measure: only the name, at the cost of a few words, as a standing condition of every certification claim. The reader learns from the name, and from the investigation the name makes possible, that the credential comes from an organization and not from the state.
Peel's own letterhead shows the condition satisfied, because it read “Certified Civil Trial Specialist By the National Board of Trial Advocacy” and so placed the source of the certification in the same phrase as the claim.21 Whether that board would also clear (c)(1) depends on approval by an appropriate authority or accreditation by the American Bar Association, a separate inquiry. Satisfying the naming condition says nothing about the first condition.
The lawyer in that scene has done nothing dishonest, and that is the lesson. The statement is true and the certifier is legitimate, yet the rule is violated, because (c)(2) regulates what the communication tells the reader and does not ask whether the lawyer deserves the credential. The opposite failure appeared in the previous subsection, where the lawyer who names the unapproved Consumer Debt Practitioners Guild satisfies (c)(2) and fails (c)(1). Each condition checks something the other cannot: (c)(1) checks the certifier, and (c)(2) checks that the reader can see the certifier.
The rule asks that the name be clearly identified in the communication, so what counts is what a reader of the claim-making communication actually sees. A name that appears elsewhere among the lawyer's materials leaves that reader no better informed than if no one had been named. The text prescribes no type size or placement, so the safest drafting puts the certifier's name in the same statement as the claim, as in “board certified in immigration law by” followed by the named board, on a line visually distinct from the lawyer's bar admissions.
States that regulate certification claims in detail carry the naming idea into their own rules. Florida requires a lawyer certified by another state bar to include that bar's name, and a lawyer certified by an organization whose program the Florida Bar has accredited to include the organization's full name, in all communications pertaining to the certification.24 That wording speaks of all communications pertaining to the certification and, for an organization, calls for its full name, so it is Florida's own text and not the Model Rule's. The state-variation sections below return to it.
Responsible Lawyer Information
Rule 7.2(d) imposes a duty that stands apart from the certification conditions: any communication made under the rule must include the name and contact information of at least one lawyer or law firm responsible for its content.26 The words “any communication” set the reach. A specialist claim is a communication under the rule, so a lawyer who advertises certification must satisfy both conditions of Rule 7.2(c) and this duty as well. The duty binds just as firmly a message that says nothing about certification, such as a plain description of the lawyer's fields of practice.
The text asks for the name and contact information of at least one lawyer or firm. A firm name paired with a telephone number or an email address satisfies it, and the rule does not require a list of every lawyer who contributed to the message. It also says nothing about who drafted the words; it asks only that someone responsible for the content be identified.
The rule states no purpose, but its function is accountability. A consumer with a question or complaint knows where to turn when the communication names the lawyer or firm behind it, and anyone who finds the content inaccurate knows whom to ask about it. Without a name, a message could circulate with no one answerable for what it says.
This duty names a different party from the one named under the certification rule. Rule 7.2(c)(2) requires the communication to identify the certifying organization, the source of the credential.27 Rule 7.2(d) requires it to identify the lawyer or firm answerable for the message. A specialist advertisement can therefore name an approved certifier perfectly and still omit the person to hold responsible, because naming the certifier says who vouches for the credential and nothing about who is accountable for the advertisement.
The banner in that pair fails only because of what it omits. Adding the firm's name and telephone number would cure the violation and would change nothing about the credential, which is the reason to keep the duty apart from the two certification conditions. Each of the three requirements checks something the others cannot: (c)(1) checks the certifier, (c)(2) checks that the reader can see the certifier, and (d) checks that someone accountable stands behind the communication.
The independence works in the other direction too. A lawyer whose advertisement prominently names the firm and its contact information has satisfied only the duty in (d), and that cannot repair a claim of certification from an organization that is neither approved nor accredited. An exam stem that pairs a specialist claim with a missing firm name, or with a complete firm block and a sham certifier, is testing whether each requirement is checked on its own.