Claims of Specialty in the ABA’s New Model Rule 7

In our last couple of blog posts, we dealt with the new attorney advertising rules from the American Bar Association (ABA), and then delved into the changes in the new Model Rule 7 and how they will impact legal blogging.

We punted, however, on discussing what is possibly the most important change to Model Rule 7, from the perspective of legal blogging: Claims that you are a specialist in a field of law.

Revisions to Model Rules Impact Claims of Specialty

The ABA’s Model Rules of Professional Responsibility stringently regulate whether lawyers can claim to be a specialist in a certain field of law. Model Rule 7.4 was the home of these regulations, stating:

(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.

(b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation.

(c) A lawyer engaged in Admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty” or a substantially similar designation.

(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and

(2) the name of the certifying organization is clearly identified in the communication.

The recent revisions to Model Rule 7, though, deleted Rule 7.4, subsuming it in Rule 7.2(c):

(c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and

(2) the name of the certifying organization is clearly identified in the communication.

Comments to the New Rule 7.2(c) add pieces of the Old Rule 7.4, as well.

  • Comment 9 states that lawyers are explicitly allowed to “communicate that the lawyer does or does not practice in particular areas of law,” though this power now comes from Rule 7.2(a), rather than anything to do with claims of specialty
  • Comment 9 also states that “[a] lawyer is generally permitted” to make a claim of specialty, “based on the lawyer’s experience, specialized training or education, but such communications are subject to the ‘false and misleading’ standard” from Rule 7.1, which remained largely intact during the Rule 7 revision.
  • Comment 10 preserves the ability of admiralty lawyers and patent and trademark lawyers to mention this specialty
  • Comment 11 deals with the types of organizations that can certify lawyers as specialists in their field. These organizations have to either be approved by a state authority or by the ABA, and are expected “to apply standards of experience, knowledge and proficiency” in their certification process.
  • Comment 11 also deals with the nature of the certification: It has to signify “that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law.”

The ABA's new attorney advertising rules impact claims of specialty

Reading Between the Lines of the Changes

The ABA’s revision to its rules regarding claims of specialty is a substantial one. However, it is clear that the changes reflect a movement away from brightline rules and towards a more holistic approach that relies much more heavily on Rule 7.1’s general rule against what is “false and misleading.”

Ironically, this makes the new ABA rules on attorney advertising—and on claims of specialty, in particular—much more in line with the states that refused to adopt Rule 7, in its entirety. States like Georgia, whose Rule 7.4 allows claims of specialty “so long as the statement is not false or misleading,” seem much wiser, now that the ABA has decided to follow along.

What This Means for Legal Blogging

Whether you can or cannot claim to be a specialist in your field of law is a big deal, in your legal blog. Legal blogs and landing pages are not just search engine optimization (SEO) tools; they are also there to convert web traffic into paying clients. If you are a specialist or have a valid certification, you want to publicize it, often in the call to action of your articles.

Unless you practice in admiralty or trademarks and patents, you’ll need to pay attention to your state’s bar association, and how they react to the new attorney advertising regulations in the ABA’s Model Rules of Professional Responsibility. The more holistic approach is going to be far more difficult to comply with than brightline rules that say what you can and cannot do. Depending on your state, you could find the new ethical guidelines more or less stringent than they were, before.

Of course, the ABA’s revision only impacts the Model Rules—no state has altered their ethical standards, so no practical change has been made, just yet. However, with a majority of states writing their ethical rules substantially parallel to the ABA’s Model Rules, one would expect the new Rule 7 to trickle down to the state level fairly quickly.

We think it would be wise to play it safe, in your online marketing material. Until you know how your state is going to react to the new attorney advertising rules, rein in your proclamations of greatness. Even after your state has shown its hand and either adopted the New Model Rule 7 or stuck to its old one, you will still need to keep tabs on the ethical decisions in your state to see how the rules are going to be enforced.

Importantly, this applies to articles that you write in the future, as well as to those already on your law firm’s website. Tracking down all of the times that you have claimed a specialty on your site can reduce the risk of being accused of an ethical violation.

Leave a Reply