Can a Massachusetts lawyer publish a notice of availability as a consultant or specialist to other lawyers, and in which publications and how often?
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This page answers the general question as of 1974. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer asked the committee to construe DR 2-105(A)(3), the disciplinary rule that allowed a lawyer to publish an announcement of availability for consultation in specialized areas of law "periodically in legal journals." The lawyer asked which publications qualified as "legal journals" and whether "periodically" meant as often as a given journal was published.
The committee read DR 2-105(A)(3) as a narrow exception to the Code's general ban on advertising (DR 2-101 and EC 2-9, EC 2-10). The exception let a practitioner with particular skill in a special branch of law make that fact known to other lawyers who might need the assistance; it could not be used to circumvent the ban on notices directed to the general public, and the announcement had to be dignified and could not claim special competence or experience.
On the two specific questions, the committee concluded that "legal journal" included any magazine, newspaper, or other publication issued at regular intervals and intended primarily for the professional use of members of the bar, naming the Massachusetts Lawyers Weekly, the Massachusetts Law Quarterly, the Boston Bar Journal, law reviews, and the regular publications of bar associations as examples. It read "periodically" to permit publication no more often than once a month in any particular legal journal, observing that more frequent publication might be found to violate the rule depending on the circumstances.
Currency note
The Massachusetts Bar Association reconsidered this opinion in its Opinion 78-4 (1978), which held that, in light of First Amendment decisions on professional advertising, DR 2-105(A)(3) could no longer be read to prohibit publication more often than once a month in a particular legal journal.
This opinion was issued in 1974, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Could a lawyer advertise a legal specialty to other lawyers in 1970s Massachusetts?
A: Per the opinion, yes, in a limited way. The committee said a lawyer could publish a dignified notice of availability to act as a consultant or associate in a particular branch of law, provided it did not claim special competence or experience and was not aimed at the general public.
Q: What counted as a "legal journal" for these notices?
A: The committee said the term covered any magazine, newspaper, or other publication issued at regular intervals and intended primarily for lawyers' professional use, giving the Massachusetts Lawyers Weekly, the Massachusetts Law Quarterly, the Boston Bar Journal, law reviews, and bar association publications as examples.
Q: How often could the notice run?
A: At the time of the opinion, the committee read "periodically" to allow publication no more than once a month in any one legal journal. As the editor's note records, Opinion 78-4 later set that frequency limit aside on First Amendment grounds.
Background and rules framework
The opinion construed DR 2-105(A)(3) of SJC Rule 3:22, which permitted notices of availability for consultation or association in a specialized field, as an exception to the advertising ban in DR 2-101 and the Ethical Considerations (EC 2-9, EC 2-10). It also referred to DR 6-101(A)(1), the competence rule requiring a lawyer who is not competent in a matter to associate one who is, as the underlying reason lawyers consult specialists. Those provisions correspond today to Model Rule 7.4 (communication of fields of practice and specialization), Model Rule 7.2 (advertising and communications about a lawyer's services), and Model Rule 1.1 (competence).
Citations and references
Rules of Professional Conduct:
- DR 2-105(A)(3) / Model Rule 7.4 (communication of fields of practice and specialization)
- DR 2-101; EC 2-9, EC 2-10 / Model Rule 7.2 (advertising and communications about services)
- DR 6-101(A)(1) / Model Rule 1.1 (competence; associating competent counsel)
Other opinions cited:
- MBA Opinion 78-4 (reconsidered 74-4): the once-a-month frequency limit could no longer be enforced after First Amendment advertising decisions
- ABA Committee on Law Lists: reference to the fields of law lawyers may ethically list in directories such as Martindale-Hubbell
See also
- MA Bar Ethics Op. 86-3: Educational seminars are not solicitation
- MA Bar Ethics Op. 87-3: A third party soliciting clients for a law firm
- MA Bar Ethics Op. 85-2: "Professional Association" in a firm name
- MA Bar Ethics Op. 81-10: Disclosing professional-corporation status
Source
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