What specialization-certification disclosures did a Tennessee lawyer advertisement have to include, and for which practice areas?

Plain-English summary

The opinion addressed the disclosures DR 2-101(C) required in advertisements relating to certification of specialization. It recounted the history of the Tennessee Supreme Court's certification program (effective June 15, 1994 and expanded through 1999) and explained that the rule set out three potential disclosures depending on whether the lawyer was certified, not certified, or whether certification was unavailable in an advertised area, and that all three could be required in a single advertisement.

The opinion stressed that, because the Supreme Court delineated the disclosures within quotation marks in DR 2-101(C), the precise disclosure language was required with no variations or abbreviations, that the disclosures had to be prominent (DR 2-101(C)(6)), and that the responsible lawyer's name had to be disclosed (DR 2-101(C)(1)). It noted that DR 2-101(C)(5) prohibited stating that certification was unavailable in an advertised area if the Commission had identified that area as included within a certified specialty, or, absent such identification, if the area was reasonably included in a certified area.

The opinion then catalogued which areas the Commission had identified as not certifiable (for example, Administrative Law, Mediation, Commercial Law, Real Property, Securities, Taxation, Labor and Employment, Immigration, and others) and which were included within certified specialties (for example, Personal Injury, Workers' Compensation, and Commercial Litigation within Civil Trial). It gave detailed examples of practice descriptions reasonably included within Civil Trial, Criminal Trial, Bankruptcy/Creditors' Rights, Elder Law, Estate Planning, and Family Law, and reminded lawyers of their obligation to include the appropriate disclosures and to contact the Commission or the Board when in doubt.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 2001-F-137(b) on September 11, 2015, "due to changes in the law or rules." This opinion also predated Tennessee's 2003 Rules of Professional Conduct and relied on the former Code's DR 2-101(C). A vacated opinion has no continuing force and is not the Board's current guidance; it is reproduced and summarized here as a historical research record only. Verify the current Tennessee Rules of Professional Conduct before acting.

Common questions

Q: Did a Tennessee lawyer have to use exact disclosure wording when advertising a practice area?

A: Per the opinion, yes. Because the Supreme Court set the disclosures within quotation marks in DR 2-101(C), the opinion concluded the precise language was required with no variations or abbreviations, displayed prominently.

Q: Could a lawyer say certification was "not available" in an advertised area?

A: The opinion explained that DR 2-101(C)(5) prohibited that statement if the Commission had identified the area as included within a certified specialty, or, absent such identification, if the area was reasonably included in a certified area.

Q: Is this opinion still in effect?

A: No. The Board vacated it on September 11, 2015 due to changes in the law or rules. It is preserved here only as a historical research record.

Background and rules framework

The opinion interpreted DR 2-101(C) of the former Code of Professional Responsibility, including its subparts on the required disclosures, prominence, the responsible lawyer's name, and the prohibition on misstating certification availability. The modern analog is RPC 7.4 (Model Rule 7.4) on communicating fields of practice and certification. It was issued the same day as, and is closely related to, Opinion 2001-F-144(b) on Internet listings.

Citations and references

Rules of Professional Conduct (former Code):

• DR 2-101(C), including (C)(1), (C)(5), and (C)(6) (certification-of-specialization disclosures in advertising). Modern analog: Model Rule 7.4 / Tennessee RPC 7.4

See also

• Tennessee Op. 2001-F-144(b): Online Practice-Area Listings and Specialization Disclosures
• Tennessee Op. 2004-F-149: False or Misleading Lawyer Advertising

Source

• Landing page: https://www.tbpr.org/ethic_opinions/2001-f-137b

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

2001-F-137(b) - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 2001-F-137(b)

Inquiry is made regarding the disclosures required in advertisements relating to the certification of specialization.

The Tennessee Supreme Court implemented the attorney certification of specialization program effective on June 15, 1994 when certifications of specialization became available in the areas of Civil Trial, Criminal Trial, Business Bankruptcy, Consumer Bankruptcy, Creditors' Rights, and all areas reasonably included in any of these areas. On August 25, 1995, the Supreme Court approved standards and made Certification of Specialization available in the areas of Medical Malpractice, Legal Malpractice, Accounting Malpractice and Elder Law. Most recently, the Supreme Court approved standards making certification of specialization available in the area of Estate Planning on January 6, 1997, and in the area of Family Law on December 30, 1999.

Disciplinary Rule 2-101(C) embodied in Tennessee Supreme Court Rule 8 provides three separate disclosures which may potentially be required in an advertisement of legal services with regard to any area of the law advertised. If an attorney is certified in one area advertised, is not certified in another area advertised, and no certification is available in another area advertised, then all three disclosures are required. The disclosures are: [See DR 2-101(C)(2)(3) and (4)]

Certified as a (area of practice)
Specialist by the Tennessee Commission on Continuing
Legal Education and Specialization.

Not certified as a (area of practice)
Specialist by the Tennessee Commission on Continuing Legal
Education and Specialization.

Certification as a (area of practice)
Specialist is not currently available in Tennessee.

These disclosures are delineated by the Supreme Court in DR 2-101(C) of Rule 8 within quotation marks. Therefore the precise language of each disclosure is required with no variations or abbreviations.

The disclosures are required by DR 2-101(C)(6) to be included in a prominent manner.

The name(s) of the lawyer(s) who are responsible for the performance of the legal services advertised are required by DR 2-101(C)(1) to be disclosed.

Disciplinary Rule 2-101(C)(5) prohibits statements in advertisements that certification is not available in an advertised area if that area has been identified by the Tennessee Commission on Continuing Legal Education and Specialization (Commission) as included in an area of specialization; or, in the absence of such identification, if the advertised area is reasonably included in a certified area.

The Commission has presently identified the following areas wherein certifications of specialization are not available:

[Accessibility Aid: Admin law and mediation summary.]

Administrative Law
Mediation

Admirality
Patent, Trademark & Copyright Law

Commercial Law
Real Property Law

Environmental Law
Securities Law

Health Care Law
Taxation Law

Labor & Employment Law
Immigration Law

The Commission initially determined that Social Security was included in the field of Civil Trial, but has now determined that it is actually in the field of Administrative Law, for which no certification is presently available.

In addition the Commission has identified Personal Injury, Workers' Compensation and Commercial Litigation as being included in the area of Civil Trial specialization, for which certification is available, and either the disclosure of "Certified..." or "Not Certified..." is required.

It appears to the Board of Professional Responsibility that in addition to the above, the following areas or types of practice are reasonably included in a certified specialty:

The area of Civil Trial also reasonably includes Accidents,
Criminal Injuries, Death Claims, Litigation, Products
Liability, and many other reasonably included areas.

The area of Criminal Trial also includes Drug Cases, Drunk
Driving, DWI, Felonies, Misdemeanors, Probation and Parole
Violations, Records Cleared or Expunged, Revoked License,
and many other reasonably included areas.

The areas of Bankruptcy and/or Creditors Rights also
include Chapter 7, Chapter 13, Creditor Harassment, Debt
Consolidation, Fresh Start, Home Mortgage Foreclosures,
Keep Property, Qualified Plan, Reorganization, Repay Debts,
Repossessions, Wage Earner, Wage Garnishment, and many
other reasonably included areas.

The area of Elder Law includes any field utilizing the terms
"older persons", "elderly" or "senior citizens", or mentioning
Medicare planning or long-term care planning.

The area of Estate Planning includes any field utilizing
“Wills”, “Trusts”, “Estates”, “Decedents’ Estates”,
“Probate”, and many other reasonably included areas, or tax
consequences specifically relating to these areas or to
generation-skipping transfers.

The area of Family Law also reasonably includes Domestic
Relations, Child Support, Child Custody and Visitation,
Adoption, Divorce, Alimony, and many other reasonably
included areas.

A lawyer who publishes or broadcasts an advertisement or unsolicited communication with regard to any area of the law has an ethical obligation, pursuant to DR 2-101(C), to include the appropriate disclosure(s). Any doubts or confusions about areas or types of practice or whether certifications for specialization are available may be resolved by contacting the Commission on Continuing Legal Education and Specialization [(615)- 741-3096] or the Board of Professional Responsibility [(615) 361-7500].

This 9th day of March, 2001

ETHICS COMMITTEE:

Charles E. Carpenter, Chair
Carthel L. Smith, Jr
Mark L. Hayes
Dr. Melvin Wright

APPROVED AND ADOPTED BY THE BOARD