Can an Illinois lawyer list a Supreme Court Capital Litigation Trial Bar certification on letterhead without the no-specialty disclaimer?

Plain-English summary

Illinois Rule 7.4(c), adopted and amended after Peel v. ARDC (which struck the flat ban on holding oneself out as certified or a specialist), lets a lawyer identify a certification only if the reference is truthful and not misleading and states that the Supreme Court of Illinois does not recognize certifications of specialties. In 2001 the Court adopted Supreme Court Rule 714, which provides that "the Supreme Court shall certify" duly licensed attorneys to serve as members of the Capital Litigation Trial Bar. The inquiry asks whether a member must still append the no-recognition disclaimer when listing that certification.

The Committee treats this as a conflict between two of the Court's own rules and applies statutory-construction principles, which Supreme Court Rule 2(a) makes applicable to the rules. Conflicting provisions should be harmonized if possible; if they cannot be, the more recent ordinarily prevails, though a specific provision controls over a general one. The Committee finds it difficult to harmonize Rule 714's "the Supreme Court shall certify" with Rule 7.4's statement that the Court "does not recognize certifications of specialties." Because Rule 714 is more recent and identifies a certification the Court itself grants, the Committee concludes Rule 714 should be applied, allowing a member to list the Capital Litigation Trial Bar certification on letterhead without the disclaimer.

Currency note

This opinion was issued in 2004, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The Illinois Rules cited here use the pre-2010 numbering. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule cited here.

In practice

Under the Illinois rules as they stood at the time, the opinion holds that a Capital Litigation Trial Bar member could list that certification on letterhead without the Rule 7.4 disclaimer, because the conflicting and more recent Supreme Court Rule 714 (a certification the Court itself grants) controls. The Committee identifies the source and recency of the two rules as the operative factor; the certification reference still had to be truthful and not misleading under Rule 7.1.

Common questions

Q: Does Rule 7.4 normally require a disclaimer when a lawyer lists a certification?

A: Yes. The opinion explains that Rule 7.4(c) generally requires the reference to be truthful and to state that the Supreme Court of Illinois does not recognize certifications of specialties.

Q: Why is the Capital Litigation Trial Bar treated differently?

A: Because, the opinion reasons, Supreme Court Rule 714 has the Court itself certify those members, which conflicts with Rule 7.4's statement that the Court does not recognize specialty certifications.

Q: How did the committee resolve the conflict between the two rules?

A: It applied statutory-construction principles (made applicable by Supreme Court Rule 2(a)) and concluded that, because the rules could not be harmonized, the more recent Rule 714 controls, so no disclaimer is required for that certification.

Background and rules framework

The opinion interprets Illinois Rule 7.4 (communication of fields of practice and certification, corresponding to Model Rule 7.4) and Rule 7.1 (false or misleading communications, corresponding to Model Rule 7.1), reconciling them with Supreme Court Rule 714 on the Capital Litigation Trial Bar. The analysis turns on rule-construction principles for resolving a conflict between two of the Court's own rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.4 / Illinois Rule 7.4(c) (communicating certification or fields of practice)
• Model Rule 7.1 / Illinois Rule 7.1 (false or misleading communications)

Other authorities:

• Illinois Supreme Court Rule 714 (Capital Litigation Trial Bar)

Cases:

• Peel v. ARDC, 496 U.S. 91, 110 S. Ct. 2281 (1990), First Amendment limits on banning specialist claims
• Williams v. Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 563 N.E.2d 465 (1990), harmonizing conflicting provisions

See also

• ABA Formal Op. 10-457: Lawyer Websites
• CA COPRAC Op. 1993-129: Avoiding False or Misleading Communications

Source

• Landing page: https://www.isba.org/ethics/opinions/0303