May an uncertified family law attorney advertise himself as a specialist?

Plain-English summary

A lawyer whose practice was confined to family law asked whether he could describe himself as a family law "specialist" in advertising. He had not been certified as a specialist by any certifying organization. The committee applied North Dakota Rule of Professional Conduct 7.4(c), which allowed a lawyer to communicate practice fields but restricted statements implying specialist status to lawyers meeting its certification and disclosure conditions.

The committee concluded that the lawyer did not meet Rule 7.4(c)'s certification requirement. It distinguished a truthful statement that a lawyer practices family law or limits his practice to that field from a claim that he is a specialist. The opinion cited decisions explaining that "specialist" implies recognized qualifications beyond simply practicing in an area. It did not decide when other wording would imply specialist status.

In practice

Under the 2007 opinion, the requesting lawyer could truthfully identify family law as his practice area or say his practice was limited to family law. The committee held that he could not advertise himself as a family law specialist without the certification required by Rule 7.4(c).

Common questions

Q: Can a family law lawyer without specialist certification use "specialist" in an advertisement?

A: No. The committee held that this requesting lawyer did not satisfy Rule 7.4(c) and could not advertise himself as a family law specialist.

Q: Can the lawyer say he practices only family law?

A: Yes, if that statement is true. The opinion says Rule 7.4 permits a lawyer to communicate his practice area or that his practice is limited to that area.

Q: Did the committee decide whether words such as "specializing" always imply specialist status?

A: No. A footnote says the committee was not asked to decide when an attorney implies he is a specialist, though it discusses decisions from other jurisdictions addressing similar wording.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 7.4(c), including its certification and disclosure conditions for a specialist claim. Its conclusion turns on the requesting lawyer's lack of certification. The opinion also quotes North Dakota Rule for Lawyer Discipline 1.2(B) on good-faith reliance on a written ethics-committee opinion or advisory letter.

Citations and references

Rules of Professional Conduct:

• N.D.R. Prof. Conduct 7.4(c): specialist claims and certification.
• North Dakota Rule of Lawyer Discipline 1.2(B): reliance on a committee opinion.

Cases:

• Florida Bar v. Herrick, 571 So.2d 1303, 1307 (Fla. 1990): the implication of a specialist claim.
• Trumbull County Bar Ass’n v. Joseph, 569 N.E.2d 883, 884 (Ohio 1991): use of "specializing in" without certification.
• In re Peperone, 615 N.Y.S.2d 212, 213 (N.Y. App. Div. 1994): a specialization claim in advertising.

See also

• MS Bar Ethics Op. 153: Advertising Trial Certification
• ND Ethics Op. 08-02: Advertising a Super Lawyers Designation
• ND Ethics Op. 09-08: Withdrawal of Opinion 08-02

Source

• Official index: https://www.sband.org/page/ethics_opinions
• Archived official PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/Opinion07-02.pdf

Original opinion text

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

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS OPINION
Opinion No. 07- 02

The Ethics Committee received a request for an opinion asking whether the Requesting Attorney can identify himself as a family law “specialist” in his advertising.

FACTS

The Requesting Attorney confines his practice to the area of family law. The Requesting Attorney is not certified by any certifying organization as a specialist in the area of family law.

ISSUE

Whether an attorney who is not certified by a certifying organization as a specialist in the field of family law can identify himself as a family law “specialist” in his advertising.

DISCUSSION

This issue is governed by N.D.R. Prof. Conduct 7.4 - Communication of Field of Practice. Rule 7.4 provides, in relevant part:

A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is a specialist in a particular field of law except as follows:

(c) a lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization, provided that the communication clearly states the name of the certifying organization and that there is no procedure in this jurisdiction for approving certifying organizations. The communication need not contain such a statement if the named organization has been accredited by the American Bar Association or the lawyer has successfully completed a certification program sponsored by a state bar association.

The plain language of Rule 7.4 prohibits a lawyer from “stat[ing] or imply[ing] that the lawyer is a specialist in a particular field of law” except if the lawyer has “been certified as a specialist in a field of law by a [certifying] organization,” and the disclosure requirements of Rule 7.4(c) are met. As explained by one court:

By prohibiting the general use of the term “specialist,” the rule seeks to restrain advertising which can be false, deceptive, or misleading. By characterizing himself as a specialist, an attorney does more than merely indicate that he practices within a particular field. The term “specialist” carries with it the implication that the attorney has special competence and expertise in an area of law.

Florida Bar v. Herrick, 571 So.2d 1303, 1307 (Fla. 1990).

Use of the term “‘specialist’ implies that one’s qualifications have been reviewed and acknowledged by an entity authorized and having expertise to do so.” MI Eth. Op. C- 232 (Mich. Prof. Jud. Eth.). As noted in the Comment to Rule 7.4:

Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law. Certifying organizations may be expected to apply standards of experience, knowledge, and proficiency to ensure that a lawyer’s recognition as a specialist is meaningful and reliable.

The Requesting Attorney states he has not been certified as a family law specialist by any certifying organization. Thus, the Requesting Attorney does not meet the requirement of Rule 7.4(c). Although Rule 7.4 permits the Requesting Attorney to communicate that he practices in the area of family law, or that his practice is limited to family law, if these statements can be made truthfully,’ the plain language of the rule prohibits the Requesting Attorney from stating or implying he is a specialist in the area of family law.?

This conclusion is supported by judicial opinions from other jurisdictions. For example, in Trumbull County Bar Ass’n v. Joseph, 569 N.E.2d 883, 884 (Ohio 1991) the court publicly reprimanded an attorney for using the terminology “specializing in” the field of

"N.D.R. Prof. Conduct 7.4, Comment (“If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted to so indicate.”); Trumbull County Bar Ass’n v. Joseph, 569 N.E.2d 883, 884 (Ohio 1991) (stating attorney “may state that his practice ‘consists in large part or is limited to’ medical malpractice cases whenever these assertions can be made truthfully’).

? The Ethics Committee is not asked to determine when an attorney implies he is a specialist. It has been found that terms like “specializes” or “specializing in” connotes formal recognition as a specialist. See Trumbull County Bar Ass’n, 569 N.E.2d at 884 (stating “‘specialize’ connotes formal recognition”); Florida Bar, 571 So.2d at 1307 (rejecting the “argument that the word ‘specialize’ carries a different connotation than ‘specialist’”); In re Peperone, 615 N.Y.S.2d 212, 213 (N.Y. App. Div. 1994) (concluding “the use of the word ‘specializes’ or the phrase ‘specializing in’ connotes formal recognition in a particular area of law’); but see MI Eth. Op. C-232 (stating lawyer cannot advertise as a “specialist” but can advertise as “specializing” in a particular filed of law).

medical malpractice when the attorney did not have proper certification. In Florida Bar, 571 So.2d at 1307, the court publicly reprimanded a lawyer for stating his law firm specializes in Customs law, when the lawyer had not been qualified under the Bar's designation or certification program. Similarly, in In re Peperone, 615 N.Y.S.2d 212 (N.Y. App. Div. 1994), the court censured an attorney who, “although not certified as a specialist in matrimonial law,” placed a listing in the phone book that indicated, “Over 20 years in private practice specializing in matrimonial law.” See also Zimmerman v. Office of Grievance Comms., 438 N.Y.S.2d 400, 402 (N.Y. App. Div. 1981) (stating “a lawyer is permitted publicly to identify one or more areas of law in which he practices, but he may not hold himself out as a specialist in a particular field of law, since no lawyer certification procedure or rules have been established in New York State”); OH Adv. Op. 88-4 (Ohio Bd. Com. Griev. Disp.) (“A lawyer may state that his practice consists in large part or is limited to a field or fields of law but may not claim or imply special competence or experience in a field of law through use of the term ‘specialize’ or otherwise.”)

CONCLUSION

Based upon the facts provided by the Requesting Attorney, the Ethics Committee finds the Requesting Attorney may not identify himself as a family law “specialist” in his advertising because he does not meet the requirements of Rule 7.4(c). This opinion is provided pursuant to Rule 1.2(B) of the North Dakota Rules of Lawyer Discipline. This rule states:

A lawyer who acts with good faith and reasonable reliance on a written opinion or advisory letter of the ethics committee of the association is not subject to sanction for violation of the North Dakota Rules of Professional Conduct as to the conduct that is the subject of the opinion or advisory letter.

Id.

This opinion was drafted by Douglas A. Bahr and adopted by the Committee on May 30, 2007, by unanimous vote.

Dann Greenwood, Chair

ijt

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