State Variations

A lawyer answers to the advertising rules of the jurisdiction that licensed the lawyer, and each jurisdiction decides for itself whether to adopt the ABA's specialist rule as written, to elaborate it, or to leave it out. Model Rule 7.2(c) lets a lawyer state or imply specialist certification only if an organization approved by an appropriate authority of a state, the District of Columbia, or a U.S. territory, or accredited by the American Bar Association, has certified the lawyer, and the communication clearly names that organization.¹ Treat that text as a template. Where a jurisdiction's own rule departs from it, the local rule governs that jurisdiction's lawyers.

The template bends in several places. Its first condition turns on what an appropriate authority of a state has approved, and that authority and its approvals differ from state to state. Vocabulary differs too. Subject to the rules against false and misleading statements, a lawyer may generally say that the lawyer concentrates in a particular area of law, yet many states explicitly forbid the word "specialize" and its variants unless the lawyer has completed a certification or other process the state's bar approves.² The range was wider still when the Supreme Court decided Peel. The dissent observed that Illinois did not stand alone: at least 19 States and the District of Columbia then banned claims of certification altogether.³

Two jurisdictions mark the spread. Florida built a detailed certification scheme that sorts lawyers by the body that certified them. The District of Columbia's bar committee went the other way, recommending that the Model Rules' provision on fields of practice be dropped in favor of the general ban on misleading communications. When a problem states a local rule, apply that rule as given.

Florida's Certification Scheme

Florida's rule sorts certified lawyers into three groups according to who certified them, and it gives every group the same four phrases: "certified," "board certified," "specialist in (area of certification)," and "expert in (area of certification)."⁴ What differs from group to group is the body that vouches for the credential and the name the lawyer must put in front of the reader. Those are the two variables the Model Rule tracks when it requires approval or accreditation of the certifier and a clear identification of the certifier by name.⁵ The Florida text is one state's way of implementing those conditions. It is not the national rule, and its details should not be carried into another jurisdiction's analysis.

The first group consists of lawyers certified by The Florida Bar itself, under the certification plan in chapter 6 of the Rules Regulating The Florida Bar. For these lawyers the rule says that communications should identify The Florida Bar as the certifying organization.⁶ The Bar is the certifier, so the screening question answers itself: certification under the Bar's own plan is the approval. The naming duty remains, and it tells the reader where the credential comes from. Notice the verb, though. For this group the rule says communications "should" identify the Bar, while for the other two groups the naming duty appears as one of two conditions the lawyer must meet.⁷

The second group consists of lawyers certified by an organization other than The Florida Bar or another state bar. These lawyers may use the four phrases only if the organization's program has been accredited by The Florida Bar and the lawyer includes the organization's full name in all communications pertaining to the certification.⁸ The accreditation condition is the Model Rule's approval-or-accreditation screen, performed here by the state's own bar, which examines a private certifier's program before any Florida lawyer may advertise its credential. The naming condition is the Model Rule's second condition spelled out more specifically: the full name, in every communication pertaining to the certification. The name lets a reader see that a private body, and not The Florida Bar, stands behind the credential, and it gives the reader something to investigate.

The third group consists of lawyers certified by another state bar. They may use the four phrases if the other bar's program grants certification on standards reasonably comparable to those of the Florida plan, as The Florida Bar determines, and if the lawyer includes the name of that state bar in all communications pertaining to the certification.⁹ The determination belongs to The Florida Bar, not to the bar that issued the credential, so Florida keeps the screen in its own hands even when the certifier is a fellow regulator. A sister state's program that demanded far less than Florida's would fail the comparability test. The name again tells the reader whose standards the lawyer actually satisfied.

Exam Analysis Steps

Because the conditions depend on who issued the credential, a Florida problem is best run by sorting the lawyer into a group before testing anything else. The steps are these:

Identify the certifier, which will be The Florida Bar under its chapter 6 plan, another state bar, or some other organization.
Apply the screen that matches the group: certification under the chapter 6 plan for Florida Bar certification, accreditation of the program by The Florida Bar for another organization, or a determination by The Florida Bar that another state bar's standards are reasonably comparable.¹⁰
Apply the naming rule that matches the group: for Florida Bar certification the communication should identify The Florida Bar, and for the other two groups the lawyer must include the organization's full name or the state bar's name in all communications pertaining to the certification.¹¹
Conclude that a lawyer in the second or third group may use the four phrases only when both the screen and the naming condition are met, so a failure at either step is a violation.

For a Florida lawyer who advertises as board certified, the question is always the same pair: who issued the credential, and does the name appear?

Each way of losing that result removes exactly one of the two conditions.

The first lawyer fails the screen, and the second passes the screen and fails on disclosure. Together they show that each condition checks something the other cannot, and that Florida changes only who performs the screen and how fully the certifier is named.

Each of the four phrases is tied to a certified field, since the rule writes "specialist in (area of certification)" and "expert in (area of certification)."¹² A lawyer certified in appellate practice therefore cannot use those phrases for a field in which the lawyer holds no certification, which keeps the label as narrow as the credential behind it. The fields are numerous. A footnote in Battle v. Thornton lists the additional practice areas Florida has adopted, among them administrative and governmental, admiralty, antitrust, appellate practice, aviation, and securities.¹³ The same footnote records a very different choice by the District of Columbia, which the next subsection takes up.

The District of Columbia's Approach

The District of Columbia took the opposite course from Florida. Its bar committee recommended omitting Model Rule 7.4, the Model Rule that dealt specifically with statements concerning fields of practice, and a footnote in Battle v. Thornton records the reason.¹⁵ In light of the general prohibition of false or misleading communications stated in paragraph (a) of Rule 7.1, the committee "saw no need to retain proposed Rule 7.4."¹⁶ Florida elaborated the Model Rule's conditions into a detailed scheme. The committee judged that a dedicated rule added nothing the general prohibition did not already supply.

The committee's premise was that a specialist claim is only one kind of statement a lawyer makes about the lawyer's services. A lawyer is under the same obligation to be accurate and to avoid misrepresentation in describing personal expertise or experience in particular fields as in making any other representation that paragraph (a) of Rule 7.1 reaches.¹⁷

The premise holds because the two regimes aim at the same harm. The specialist conditions of Model Rule 7.2(c) keep a reader from inferring a recognition the lawyer lacks, and a ban on false or misleading communications reaches that inference directly: a statement that leaves readers believing the lawyer holds a credential or experience the lawyer does not have creates a false impression.¹⁸ The general standard gives up the bright line. Under Rule 7.2(c), a disciplinary authority checks two facts, whether the certifier is approved or accredited and whether the communication names it, so an unaccredited certifier defeats even a literally true claim. Under the committee's approach the only question is whether the statement is false or misleading, which takes a judgment each time. In exchange, one test governs claims of experience, expertise, and certification alike.

Set beside the other two regimes, the District's approach completes the range. Florida regulates by a detailed rule that sorts lawyers by certifier. The Model Rule regulates by two conditions. The District's committee would regulate by a single general standard.

A problem set under that approach asks a different question from one set under the Model Rule. It does not ask who certified the lawyer or whether the communication names the certifier. It asks whether the statement is true and whether it leaves a false impression.

The accuracy of the statement moved the result between those two lawyers, and a certifier played no part in either outcome. The absence of a dedicated rule also gives the second lawyer no refuge. The omission removes a separate rule, and the general prohibition still covers descriptions of expertise. The footnote reports the committee's recommendation and reasoning, not the text of any current District rule, so a problem should be answered under whatever rule it states. The durable lesson is that a jurisdiction may regulate specialist claims through a dedicated rule, as the Model Rule and Florida do, or through the general misleading-statements standard, as the District's committee reasoned it could.