Can a board-certified lawyer advertise how few other lawyers hold the same certification, such as 'only 19 of 9,300 Alabama lawyers'?

Plain-English summary

An attorney asked whether he could use ad language stating that of 9,300 attorneys practicing in Alabama, only 19 had been certified by the National Board of Trial Advocacy as civil trial advocates and that he was one of the 19, inviting readers needing a firm that handles personal-injury and wrongful-death cases to call. He also asked, if not, what the limits were on advertising National Board of Trial Advocacy certification.

The Disciplinary Commission concluded he may not use the ad as proposed, because it is inherently misleading to compare the number of lawyers certified by any organization with the number who are not. As to limits, the Commission stated such advertising must be evaluated individually, and that any ad stating more than "Civil Trial Advocate - certified by the National Board of Trial Advocacy" or "Certified in Civil Trial Advocacy by the National Board of Trial Advocacy" will probably not pass muster. The opinion explained that Rule 7.7 allows a lawyer to advertise certification by an organization the Disciplinary Commission has approved, that the National Board of Trial Advocacy had been approved (see RO-87-45), but that permission to advertise certification does not displace the basic advertising rule, Rule 7.1, barring false or misleading communications.

The Commission found the proposed ad ran afoul of all three branches of the false-or-misleading definition (material misrepresentation or omission, unjustified expectation about results, and comparison of the quality of the lawyer's services with others'). It reasoned that lawyers apply for and earn the certification rather than being unilaterally selected, that many competent civil lawyers never apply, and that the raw numbers have no relationship to the quality of those certified; therefore any ad stating more than the bare fact of certification is suspect.

Currency note

This opinion was issued in 1992, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. The Alabama certification provision discussed (then Rule 7.7) corresponds in substance to Model Rule 7.4. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer advertise that he is certified by the National Board of Trial Advocacy?

A: Per the opinion, yes. The Commission noted the National Board of Trial Advocacy was an approved certifying organization, so a lawyer may state the fact of that certification in advertising or on letterhead.

Q: Can the ad say how few lawyers hold the certification?

A: No. The opinion concluded it is inherently misleading to compare the number of lawyers certified with the number who are not, because the raw numbers have no relationship to the quality of those certified.

Q: What certification language did the Commission treat as acceptable?

A: The opinion indicated that a bare statement such as "Civil Trial Advocate - certified by the National Board of Trial Advocacy" is acceptable, and that anything more than the fact of certification is suspect.

Background and rules framework

The opinion interprets the Alabama certification-advertising provision (then Rule 7.7, corresponding to Model Rule 7.4) together with Rule 7.1 (Model Rule 7.1, false or misleading communications about a lawyer's services) of the Alabama Rules of Professional Conduct.

Citations and references

Rules of Professional Conduct:

• Ala. R. Prof. C. 7.7 / Model Rule 7.4 (advertising certification by an approved organization)
• Model Rule 7.1 / Ala. R. Prof. C. 7.1 (false or misleading communications)

Other opinions cited:

• RO-87-45: National Board of Trial Advocacy approved as a certifying organization

See also

• AL Ethics Op. 1992-14: a single disclaimer for a page of lawyer ads
• AL Ethics Op. 1992-23: funding a solo practitioner's advertising in a referral arrangement
• RI EAP Op. 2014-03: Rule 7.4 Allows the Certified Elder Law Attorney Designation on Letterhead if the Certifying Body Is Named and the Disclaimer Is Included

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-06/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-92-06.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-92-06

QUESTION:

Mobile attorney, ______, has requested an opinion on his use of the following language in an ad about his certification by the National Board of Trial Advocacy:

"There are 9,300 attorneys practicing law in the State of Alabama. Only 19 of them have been Board certified by the National Board of Trial Advocacy as a civil trial advocate. __ is one of these 19. If you need the qualified attention of a law firm that handles personal injury and wrongful death cases, call ____ & Associates today."

QUESTION ONE:

Can he use the above language or some variation of it?

QUESTION TWO:

If the answer to Question One is no, what are the limits of advertising certification by the National Board of Trial Advocacy?

ANSWER QUESTION ONE:

You may not use the ad as proposed. The Disciplinary Commission believes that it is inherently misleading when one compares numbers of lawyers certified by any organization with numbers who are not.

ANSWER QUESTION TWO:

The Disciplinary Commission is of the opinion that all advertising such as this must be evaluated on its own. Any advertising which states more than "Civil Trial Advocate - certified by the National Board of Trial Advocacy" or "Certified in Civil Trial Advocacy by the National Board of Trial Advocacy" will probably not pass muster.

DISCUSSION:

Rule 7.7 of the Rules of Professional Conduct allows lawyers to advertise that they have been certified by a certifying organization provided that organization has been approved by the Disciplinary Commission in accordance with guidelines adopted under that rule. The National Board of Trial Advocacy has been approved and lawyers are permitted to state that they have been certified by the National Board of Trial Advocacy in their advertising or on letterhead (see RO-87-45). The Disciplinary Commission has not previously considered the extent to which a lawyer may expand upon the fact of his certification or the significance of it.

Lawyers are not unilaterally selected for recognition by the National Board of Trial Advocacy. They themselves make application and are certified if they meet the National Board of Trial Advocacy's criteria. Only 19 lawyers have potentially applied for certification. Hundreds of competent civil lawyers have never applied for a certification. The fact that a lawyer is allowed to advertise his certification by the National Board of Trial Advocacy does not obviate the basic rules on advertising set out in Rule 7.1, i.e., that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. By definition, a communication is "false or misleading" if it (1) contains a misrepresentation of a material fact or omits a necessary fact, (2) creates an unjustified expectation about results, or (3) compares the quality of a lawyer's services with the quality of other lawyer's services.

The ad proposed seems to run afoul of all three of these points. The Disciplinary Commission believes that any ad regarding a lawyer's certification by an organization is misleading when it compares, in any fashion, the number of lawyers who are certified with the number who are not. The numbers per se have no relationship to the quality of those certified. Therefore, any ad which states more than the fact that the lawyer is certified, i.e., "Civil Trial Advocate - certified by the National Board of Trial Advocacy" or "Certified in Civil Trial Advocacy by the National Board of Trial Advocacy" will be suspect.

MLM/vf

3/23/92