I'm certified as an elder law attorney by an ABA-accredited organization. Can I put 'Certified Elder Law Attorney' on my letterhead?

Plain-English summary

The inquiring attorney is certified as a Certified Elder Law Attorney by the National Elder Law Foundation, an organization accredited by the ABA, and wants to add that designation to the attorney's letterhead. The panel applied Rule 7.4, which generally permits a lawyer to communicate the fields of law the lawyer does or does not practice, but bars stating or implying certification as a specialist unless the lawyer is certified by an organization approved by an appropriate state authority or accredited by the ABA, the certifying organization's name is clearly identified in the communication, and the communication includes the specified disclaimer that the Rhode Island Supreme Court licenses all lawyers generally and does not license or certify any lawyer as an expert or specialist in a particular field.

The panel discussed the U.S. Supreme Court's decision in Peel v. Attorney Registration & Disciplinary Commission, where an Illinois lawyer's letterhead stating "Certified Trial Specialist by the National Board of Trial Advocacy" was found neither actually nor inherently misleading, leading the Court to hold a state may not completely ban a lawyer's claims of specialty certification, though the Court noted states may require a disclaimer, which Rhode Island's Rule 7.4(d) does. Applying this framework, the panel concluded the "Certified Elder Law Attorney" designation, standing alone, implies certification by the Rhode Island Supreme Court itself, so Rule 7.4(d)'s requirements (identifying the National Elder Law Foundation as the certifying body and including the disclaimer) apply to clarify for the reader that the court does not certify specialists and to identify who actually granted the certification. The panel noted, citing Comment 1 to Rule 7.4, that nothing in the rule bars simply listing a practice area or concentration, such as elder law, without triggering Rule 7.4(d)'s certification requirements; those requirements are triggered only by a claim of certified-specialist status.

In practice

The opinion holds that a lawyer may use an accredited organization's specialty certification on letterhead, but only paired with the certifying organization's name and the Rule 7.4(d)(4) disclaimer clarifying that the state supreme court does not certify legal specialists; a bare statement that the lawyer practices in or concentrates on a field, without claiming certified-specialist status, does not trigger these requirements at all.

Common questions

Q: Can I put my certification from an ABA-accredited organization on my letterhead?

A: Yes. The opinion holds Rule 7.4 permits stating a specialty certification if the lawyer is actually certified by a state-approved or ABA-accredited organization.

Q: Do I need anything else besides the certification title itself?

A: Yes. The opinion holds the communication must also clearly identify the certifying organization (here, the National Elder Law Foundation) and include the Rule 7.4(d)(4) disclaimer that the Rhode Island Supreme Court licenses all lawyers generally and does not certify specialists.

Q: Can I just say I practice in "Elder Law" without mentioning certification at all?

A: Yes, and without needing the certifying-organization identification or the disclaimer. The opinion notes Comment 1 to Rule 7.4 permits stating that a lawyer's practice is limited to or concentrated in a field without complying with Rule 7.4(d), so long as no certified-specialist claim is made.

Background and rules framework

The opinion applies Rhode Island Rule 7.4 (Communication of Fields of Practice and Specialization). Rule 7.4(a) permits communicating the fields a lawyer does or does not practice. Rule 7.4(d) bars stating or implying certification as a specialist unless the lawyer is certified by a state-approved or ABA-accredited organization, that organization is clearly identified in the communication, and the communication includes the specified disclaimer that the state supreme court does not license or certify specialists. The opinion discusses Peel v. Attorney Registration & Disciplinary Commission, 496 U.S. 91 (1990), which held a state cannot categorically ban truthful specialty-certification claims but may require a disclaimer.

Citations and references

Rules of Professional Conduct:

• MR 7.4(a) (communicating fields of practice)
• MR 7.4(d) (specialist certification claims; certifying organization identification; required disclaimer) and Comment 1 (practice-area statements not requiring 7.4(d) compliance)

Statutes:

• None cited.

Cases:

• Peel v. Attorney Registration & Disciplinary Commission, 496 U.S. 91, 110 S.Ct. 2281 (1990), a state may not categorically ban a lawyer's truthful claim of specialty certification but may require a disclaimer

Other opinions cited:

• None cited.

See also

• Nevada Ethics Op. 13: Whether a Lawyer Certified as a Specialist May List the Certification on Advertisements, Letterhead, and Business Cards
• Ohio BPC Op. 1987-039: Lawyer Stating NBTA Civil Trial Advocate Certification on Letterhead
• Alabama Ethics Op. 1992-06: National Board of Trial Advocacy

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2014-03.pdf

Original opinion text

Final

                         Rhode Island Supreme Court
                       Ethics Advisory Panel Op. 2014-03
                             Issued March 13, 2014

FACTS

    The inquiring attorney is a certified elder law attorney. He/she has been certified

as such by the National Elder Law Foundation which is an organization that has been
accredited by the ABA. The inquiring attorney would like to include his/her designation
as a certified elder law attorney on his/her letterhead.

ISSUE PRESENTED

   The inquiring attorney asks whether he/she may include the designation "Certified

Elder Law Attorney" on his/her letterhead.

OPINION

    Rule 7.4 permits the inquiring attorney to include the designation "Certified Elder

Law Attorney" on his/her letterhead, but requires him/her also to identify the National
Elder Foundation on the letterhead and to include the disclaimer set forth in Rule
7.4(d)(4).

REASONING

     Rule 7.4 of the Rules of Professional Conduct applies to this inquiry. In pertinent

part it states as follows.

           Rule 7.4. Communication of fields of practice and
           specialization. (a) A lawyer may communicate the fact that
           the lawyer does or does not practice in particular fields of
           law.

                                        ***

           (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

Final Op. #2014-03
Page | 2

                 authority or that has been accredited by the American Bar
                 Association;

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

                   (3) the lawyer also includes, as part of the same
                 communication, the disclaimer that:

                    "The Rhode Island Supreme Court licenses all lawyers in
                    the general practice of law. The court does not license or
                    certify any lawyer as an expert or specialist in any
                    particular field of practice."

           Rule 7.4(a) permits lawyers to indicate areas of practice in communications about
  their legal services. Communications about areas of practice include those made on a
  lawyer's letterhead. In Peel v. Attorney Registration & Disciplinary Commission, 110
  S.Ct. 2281 (1990), a member of the Illinois bar identified himself on his letterhead as a
  "Certified Trial Specialist by the National Board of Trial Advocacy." 110 S.Ct. at 2285.
  The Illinois Code of Professional Responsibility prohibited lawyers from holding
  themselves out as specialists except in areas of admiralty, trademarks, and patents. Id. at
  2286. The disciplinary commission filed a complaint alleging that the attorney, through
  his letterhead, was holding himself out as a legal specialist in violation of the Code. Id. at
  2285-86. The Illinois Supreme Court adopted the Commission's recommendation for
  censure, concluding that the letterhead was inherently misleading. Id. at 2286-87. The
  United States Supreme Court concluded that the letterhead was neither actually nor
  inherently misleading, and ruled that a state may not completely ban a lawyer's claims of
  specialty certification. Id. at 2292-93. However, the Court noted that states could require
  a disclaimer about certifications. Id. at 2292. The Rhode Island Supreme Court requires
  such a disclaimer. See Rule 7.4(d).

           The inquiring attorney seeks to include on his/her letterhead the designation
  "Certified Elder Law Attorney." Rule 7.4 permits him/her to so indicate, but requires
  him/her also to identify the National Elder Law Foundation on the letterhead and to
  include the disclaimer set forth in Rule 7.4(d)(4). The designation, by itself, implies that
  the inquiring attorney is certified as a specialist in elder law by the Rhode Island Supreme
  Court. The requirements of Rule 7.4(d) clarify for the consumer that the Court does not
  license or certify lawyers as experts or specialists in particular areas of practice, and
  clarify the identity of the certifying organization.

         Nothing in Rule 7.4 prohibits the inquiring attorney from listing areas of practice
  or concentration, such as elder law, on his/her letterhead. A lawyer may state that the
  lawyer's practice is limited to or concentrated in particular fields without complying with
  Rule 7.4(d). Rule 7.4, Comment [1].