Must a lawyer licensed only in Tennessee include the DR 2-101(C) specialty disclaimer when advertising in national publications for legal services to be performed in interstate commerce?

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 84-F-71 on December 10, 2021 due to changes in the laws or rules. This opinion was also issued in 1984, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. A vacated opinion has no continuing force and is not the Board's current guidance. It is reproduced and summarized here only as a historical research record. Do not rely on it as current; verify the current rules on advertising under RPC 7.4 before acting.

Plain-English summary

An attorney licensed only in Tennessee asked whether he had to include the DR 2-101(C) disclaimer when advertising in national publications for legal services to be performed in interstate commerce. The opinion observed that "the regulation of the practice of law is accomplished by the respective states," citing Ethical Consideration 3-9, and that Tennessee's Code of Professional Responsibility "is the controlling authority on the ethical conduct of attorneys solely licensed in Tennessee." It quoted DR 2-101(C)'s requirement that any communication listing specific areas of practice include the precise wording: "LISTING OF THE ABOVE LEGAL SERVICES OR SPECIFIC AREAS OF PRACTICE DOES NOT INDICATE ANY CERTIFICATION OF EXPERTISE THEREIN."

On that basis, the opinion concluded that "an attorney licensed only in Tennessee is required to include the disclaimer provided for in DR 2-101(C) when advertising in national publications for legal services to be performed in interstate commerce." The attorney had also asked about hypothetical scenarios involving licensure in other states or affiliation with out-of-state attorneys; the opinion declined to address those, noting that "the ethics opinions are only intended to apply to actual factual instances and hypothetical matters will not be addressed in this opinion."

Common questions

Q: Does advertising in a national publication, rather than a Tennessee-only publication, change the disclaimer requirement?

A: No. The opinion held the Tennessee-only-licensed attorney "is required to include the disclaimer provided for in DR 2-101(C) when advertising in national publications for legal services to be performed in interstate commerce."

Q: Did the opinion address attorneys licensed in multiple states or affiliated with out-of-state lawyers?

A: No. The opinion noted that "the ethics opinions are only intended to apply to actual factual instances and hypothetical matters will not be addressed in this opinion," so it limited its holding to an attorney licensed solely in Tennessee.

Q: Is this opinion still in effect?

A: No. The Board of Professional Responsibility vacated Formal Ethics Opinion 84-F-71 on December 10, 2021 due to changes in the laws or rules.

Background and rules framework

The opinion applied Disciplinary Rule 2-101(C) of the Code of Professional Responsibility, which required precise disclaimer wording in any communication listing specific practice areas, and Ethical Consideration 3-9, which recognized that the practice of law is regulated by the individual states. The modern correlate is Model Rule 7.4 (communication of fields of practice and certification), cited here as a navigational cross-reference rather than a rule the opinion itself applied; this opinion has since been vacated, so current RPC 7.4 controls.

Citations and references

(No cases or other Tennessee opinions are cited in the opinion text.)

See also

• Tennessee Op. 84-F-72: Out-of-State Board Certification Does Not Replace the Specialty Disclaimer
• Tennessee Op. 84-F-76: Listing Areas of Practice in Martindale-Hubbell
• Tennessee Op. 84-F-79: Admiralty Advertising and the Specialty Disclaimer

Source

• Landing page: https://www.tbpr.org/ethic_opinions/84-f-71

Original opinion text

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

84-F-71 - Vacated*

*Vacated by the Board of Professional Responsibility on December 10, 2021 due to changes in the laws or rules.

FORMAL ETHICS OPINION 84-F-71

Inquiry is made as to the ethical obligation of an attorney, licensed only in Tennessee, to include the disclaimer provided for in DR 2-101(C) of the Code when advertising in national publications for legal services to be performed in interstate commerce.

The regulation of the practice of law is accomplished by the respective states. See Ethical Consideration 3-9. The Code of Professional Responsibility in effect in Tennessee is the controlling authority on the ethical conduct of attorneys solely licensed in Tennessee.

The Code of Professional Responsibility in effect in Tennessee contains the following:

(C) If a lawyer publishes or broadcasts a communication that contains any listing of legal services for specific areas of practice, the communication must include the following

precise wording:

LISTING OF THE ABOVE LEGAL SERVICES OR SPECIFIC AREAS OF PRACTICE DOES NOT INDICATE ANY CERTIFICATION OF EXPERTISE THEREIN.

Therefore, an attorney licensed only in Tennessee is required to include the disclaimer provided for in DR 2-101(C) when advertising in national publications for legal services to be performed in interstate commerce.1

The attorney inquires about specific hypothetical instances of being licensed in other states or affiliated with attorneys licensed in other states. The ethics opinions are only intended to apply to actual factual instances and hypothetical matters will not be addressed in this opinion.

This 29th day of May, 1984.

ETHICS COMMITTEE:

Henry H. Hancock

W. J. Flippin

Edwin C. Townsend

APPROVED AND ADOPTED BY THE BOARD

1DR 2-101(D) provides that applications to expand the advertising rule may be filed with the Board, Tennessee Bar Association and local bar associations for a hearing on the issue of whether the expansion of the rule will facilitate the process of informed selection of lawyers by potential consumers of legal services.