Does a lawyer listing practice areas in an online directory have to include Tennessee's specialization-certification disclosures?

Plain-English summary

The opinion addressed whether the certification-of-specialization disclosures required by DR 2-101(C) applied to practice areas a lawyer listed on the Internet. It recounted the history of Tennessee's attorney certification-of-specialization program, which the Supreme Court implemented effective June 15, 1994 and expanded over time to cover Civil Trial, Criminal Trial, Business and Consumer Bankruptcy, Creditors' Rights, Medical, Legal, and Accounting Malpractice, Elder Law, Estate Planning, and Family Law.

The opinion explained that DR 2-101(C) set out three precise disclosures that could be required in an advertisement depending on whether the lawyer was certified in an advertised area, not certified, or whether certification was unavailable, and that the rule applied to all published or broadcast communications, including Internet communications. It revisited Opinion 84-F-76 (1984), which had said the disclosures were not required for Martindale-Hubbell listings because that directory was then aimed at lawyers rather than the lay public.

The opinion concluded that technology and client-development practices had changed: Martindale-Hubbell by then published online and marketed itself to the public, citing the publisher's own assurances of "multi-media circulation to millions of potential clients" and millions of monthly searches on Martindale.com and Lawyers.com. It therefore concluded that lawyers listing practice areas on the Internet had to comply with DR 2-101(C), either by including the specific disclosure language or, alternatively, by displaying a prominent explanatory paragraph on each lawyer's initial screen stating that certifications of specialization are available in the listed areas and that listing related practice areas does not imply certification. The opinion set an effective date of July 1, 2001 and overruled Opinion 84-F-76 to the extent of any conflict.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 2001-F-144(b) on September 11, 2015, "due to changes in the laws 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 online practice-area listings trigger Tennessee's specialization disclosures?

A: Per the opinion, yes. It concluded that a lawyer listing practice areas in an online directory or other public website had to comply with DR 2-101(C), because the rule reached all published communications, including Internet communications.

Q: What changed the Board's earlier Martindale-Hubbell position?

A: The opinion explained that, unlike in 1984, Martindale-Hubbell by then published online and marketed itself to the public, so the earlier exemption in Opinion 84-F-76 no longer applied, and it overruled that opinion to the extent of any conflict.

Q: Is this opinion still in effect?

A: No. The Board vacated it on September 11, 2015 due to changes in the laws 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, which governed certification-of-specialization disclosures in lawyer advertising, and applied it to Internet listings. The modern analog is RPC 7.4 (Model Rule 7.4) on communicating fields of practice and certification, read with the current advertising rules. It built on, and partially overruled, Opinion 84-F-76.

Citations and references

Rules of Professional Conduct (former Code):

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

Other opinions cited:

• Tennessee Formal Ethics Opinion 84-F-76 (overruled in part)

See also

• Tennessee Op. 84-F-76: Listing Areas of Practice in Martindale-Hubbell (overruled in part by this opinion)
• Tennessee Op. 2001-F-137(b): Specialization Disclosures in Advertising
• Tennessee Op. 2004-F-149: False or Misleading Lawyer Advertising

Source

• Landing page: https://www.tbpr.org/ethic_opinions/2001-f-144b

Original opinion text

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

2001-F-144(b) - Vacated*

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

FORMAL ETHICS OPINION 2001-F-144(b)

Lawyers listing areas of practice on the Internet, including law directories or other Web sites available to the public, should comply with the certification of specialization disclosure requirements of DR 2-101(C)

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. On January 6, 1997, certification of specialization became available in the area of Estate Planning, and on December 30, 1999, the Supreme Court approved standards and made certification of specialization available in the area of Family Law.

Disciplinary Rule 2-101(C) embodied in Tennessee Supreme Court Rule 8 provides three separate precise 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 current available in Tennessee

The intent of DR 2-101(C) was to assure meaningful flow of information to consumers of legal services and to protect against misleading communications to the public. The rule is applicable to all published or broadcast “communications” and consequently applicable to Internet communications.

Tennessee Formal Ethics Opinion 84-F-76 (October 16, 1984) stated that certification of specialization disclosures were not required when listing areas of practice in the Martindale-Hubbell Law Directory because the directory, at that time, was intended for the use of lawyers and not actively marketed to the lay public.

Technology and client development practices have dramatically changed since 1984. Martindale-Hubbell now publishes its law directory on the Internet and is available to the lay public. Martindale-Hubbell’s marketing materials to lawyers encourage listing of areas of practice for increased visibility, including online Internet availability, making the following assurances to participating lawyers; “Multi-media circulation to millions of potential clients”, “Your credentials are available to millions of prospective clients... on the Internet...a new Web site gateway for the general public” and “Martindale.Com is now averaging a million searches a month, while Lawyers.Com averages over 7,000 - - visitors a day just months after the launch - together more than 12 million searches a year.”

Therefore lawyers listing areas of practice on the Internet, including law directories or other Web sites available to the general public should comply with the certification of specialization disclosure requirements of DR 2-101(C). The specific disclosure language of DR 2-101(C) may be included or, in the alternative compliance is assured if the initial screen for each lawyer includes the following precise explanation displayed in a prominent manner.

Certifications of Specialization are available to

Tennessee lawyers in all areas of practice

relating to or included in the areas of Civil

Trial, Criminal Trial, Business Bankruptcy,

Consumer Bankruptcy, Creditor’s Rights,

Medical Malpractice, Legal Malpractice,

Accounting Malpractice, Elder Law, Estate

Planning and Family Law. Listing of related or

included practice areas herein does not

constitute or imply a representation of

certification of specialization.

This ethics opinion becomes effective and applicable on July 1, 2001, at which time full compliance is required.

To the extent Formal Ethics Opinion 84-F-76 conflicts with this opinion, it is overruled.

This 9th day of March, 2001

ETHICS COMMITTEE:

Charles A. Carpenter, Chair

Carthel L. Smith, Jr.

Mark L. Hayes

Dr. Melvin Wright

APPROVED AND ADOPTED BY THE BOARD