Does a New York lawyer's announcement of certification as a specialist need the disclaimer if it goes only to other lawyers and to the lawyer's own clients?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer certified as an "elder law attorney" by the National Elder Law Foundation (an ABA-accredited certifier) wanted to announce the certification by mailing it to county bar members, reprinting it in the bar newsletter, and sending it to current and former clients. The lawyer asked whether the disclaimer required by DR 2-105(C) had to be included when the announcement was aimed at lawyers rather than the general public.
The committee first concluded that the announcement falls within DR 2-105 even though it uses "certified as an Elder Law Attorney" rather than "specialist." DR 2-105(C) expressly addresses certification by exactly this kind of ABA-approved organization, and N.Y. State 722 (1999) had applied the rule to a similar certification reference. The rule, adopted in 1999 to track Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990), lets a lawyer state the certification only if the certifying organization is identified and the prescribed disclaimer is prominently made: that the certifier is not a government authority, that certification is not required to practice, and that it does not necessarily indicate greater competence.
The committee then held the distribution was "public." It read "public" in DR 2-105(A) consistently with the same word in the general advertising rule DR 2-101(A), which the committee has long interpreted broadly to cover letterhead and business cards (N.Y. State 704, 557). A mailing large enough to justify a mass mailing, or a newsletter printing, is public, and a mailing to current and former clients should carry the disclaimer because the disclaimer's purpose is to keep lay readers from being misled about what "specialist" certification means. The committee also noted that announcements sent to lawyers are partly intended to generate client referrals, so the announcement is likely to reach potential clients. It acknowledged that Missouri and Tennessee opinions reached the opposite result under differently worded rules, but found no basis in the New York Code for exempting mass mailings or bar publications.
In practice
Under the Code as it stood in 2002, the opinion concluded that the DR 2-105(C) disclaimer must accompany a specialist-certification announcement distributed by mass mailing to bar members, by reprinting in a bar newsletter, or by mailing to present and former clients. The opinion held that "public" in the specialization rule is read as broadly as in the general advertising rule, so these channels are not exempt.
The opinion concluded that the certification reference is covered even without the word "specialist," because DR 2-105(C) speaks directly to certification by ABA-approved organizations.
Common questions
Q: Does a New York lawyer need the specialist disclaimer when announcing certification only to other lawyers?
A: Yes. The opinion concludes a mass mailing to bar members or a newsletter reprint is "public," so the DR 2-105(C) disclaimer is required.
Q: Does the disclaimer have to go on announcements mailed to the lawyer's own clients?
A: Yes. The opinion holds the disclaimer should accompany announcements mailed to present and former clients, because its purpose is to prevent lay readers from being misled.
Q: Does it matter that the announcement says "certified," not "specialist"?
A: No. The opinion concludes the certification reference falls within DR 2-105(C), which addresses certification by ABA-approved organizations regardless of whether the word "specialist" is used.
Background and rules framework
The opinion interprets New York's former Code of Professional Responsibility: DR 2-105(C) (stating certification as a specialist), DR 2-101(A) and (D) (false, deceptive, or misleading public communications), and DR 2-102(A) (professional announcement cards). The Model Rules analogues are Rule 7.4 (communication of fields of practice and specialization, as it then stood) and Rule 7.1 (truthful communications about services). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 7.4 (fields of practice; specialization, as then in effect)
- MR 7.1 (communications about a lawyer's services)
- NY DR 2-105(C), DR 2-101(A), DR 2-101(D), DR 2-102(A)
Cases:
- Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 91 (1990), First Amendment and disclaimers on certification claims
Other opinions cited:
- N.Y. State 722 (1999): certification references covered by DR 2-105(C)
- N.Y. State 704 (1997), 557 (1984): letterhead and business cards are public communications
See also
- NY State Bar Op. 771: Website testimonials and past-results advertising
- NY State Bar Op. 756: Street address required in legal advertising
- NY State Bar Op. 851: Using a law firm photograph in a newspaper advertisement
Source
- Landing page: https://nysba.org/ethics-opinion-757/
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