Can a Tennessee lawyer who is board certified as an immigration specialist by another state's bar cite that certification in advertising instead of the required specialty disclaimer?

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 84-F-72 on September 11, 2015 due to changes in the law 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 fields of practice and specialization under RPC 7.4 before acting.

Plain-English summary

An attorney who had practiced immigration and nationality law for about 17 years, devoted roughly 90% of his practice to the field, had written articles and lectured extensively, and had been a member of the Association of Immigration and Nationality Lawyers for 14 years, proposed to become board certified in immigration and nationality law by the Texas Board of Legal Specialization. He asked whether he could cite that board certification in his advertising in place of the disclaimer required by Disciplinary Rule 2-101(C), which mandated the precise wording: "LISTING OF THE ABOVE LEGAL SERVICES OR SPECIFIC AREAS OF PRACTICE DOES NOT INDICATE ANY CERTIFICATION OF EXPERTISE THEREIN."

The opinion quoted Ethical Consideration 2-14, which provided that, "in the absence of state controls to insure the existence of special competence, a lawyer should not be permitted to hold himself out as a specialist or as having official recognition as a specialist, other than in the fields of admiralty, trademark, and patent law where a holding out as a specialist historically has been permitted," and that, "pending the adoption of an appropriate rule, a lawyer may not indicate in permitted advertising a limitation of his practice or a concentration in one or more particular areas or fields of law, except as provided for in EC 2-8." It concluded that, "pending the adoption of a rule on specialization, a lawyer may not publish or broadcast a communication that contains any listing of legal services for specific areas of practice without including the precise wording of the disclaimer contained in DR 2-101(C)," meaning the proposed Texas board certification could not substitute for that disclaimer.

Common questions

Q: Could a lawyer use out-of-state board certification instead of the DR 2-101(C) disclaimer?

A: No. The opinion held that, "pending the adoption of a rule on specialization, a lawyer may not publish or broadcast a communication that contains any listing of legal services for specific areas of practice without including the precise wording of the disclaimer contained in DR 2-101(C)," regardless of out-of-state board certification.

Q: Did Tennessee recognize any practice areas as exempt from the specialist disclaimer?

A: Yes. Per Ethical Consideration 2-14 as quoted in the opinion, a lawyer could hold himself out as a specialist without state controls "other than in the fields of admiralty, trademark, and patent law where a holding out as a specialist historically has been permitted."

Q: Is this opinion still in effect?

A: No. The Board of Professional Responsibility vacated Formal Ethics Opinion 84-F-72 on September 11, 2015 due to changes in the law or rules.

Background and rules framework

The opinion applied Disciplinary Rule 2-101(C) (requiring precise disclaimer wording for advertised listings of practice areas) and Ethical Consideration 2-14 (limiting specialist claims pending a state specialization rule) of the Code of Professional Responsibility. 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-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-72

Original opinion text

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

84-F-72 - Vacated*

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

FORMAL ETHICS OPINION 84-F-72

Inquiry is made as to the propriety of an attorney licensed to practice law in Tennessee and board certified in immigration and nationality law in another state advertising his specialty and citing the fact of board certification in place of the disclaimer provided for in DR 2-101(C).

The attorney has been practicing immigration and nationality law for approximately 17 years. Approximately 90% of his practice is devoted to immigration and nationality law. He has written numerous articles in professional magazines, lectured extensively and, for the past 14 years, has been a member of the Association of Immigration and Nationality Lawyers and attended all their meetings.

The attorney proposes to become board certified in immigration and nationality law by the Texas Board of Legal Specialization and inquires if he will be permitted to cite the board certification in his advertising in place of the disclaimer provided for in DR 2-101(C) of the Code of Professional Responsibility.

(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.

(1) When the above disclaimer is required, it must be included in the communication in a prominent manner.

(2) Television commercials must include the disclaimer in the audible and the visible broadcast. In the visible broadcast of the disclaimer, the size of print, contrast with other images on the screen at the same time, and duration of broadcast must be adequate to insure that television viewers with average vision and education can read the disclaimer when viewing the broadcast on standard television receiving equipment.

(3) In the audible broadcast of radio and television commercials, the volume, speed of delivery and clarity of tone must be adequate to render the disclaimer at least as clearly audible as any other part of the broadcast.

Ethical Consideration 2-14 of the Code provides:

EC 2-14. In some instances, a lawyer confines his practice to a particular field of law. In the absence of state controls to insure the existence of special competence, a lawyer should not be permitted to hold himself out as a specialist or as having official recognition as a specialist, other than in the fields of admiralty, trademark, and patent law where a holding out as a specialist historically has been permitted. Pending the adoption of an appropriate rule, a lawyer may not indicate in permitted advertising a limitation of his practice or a concentration in one or more particular areas or fields of law, except as provided for in EC 2-8.

Ethical Consideration 2-8 of the Code provides, in part:

Selection of a lawyer by a layperson should be made on an informed basis ....

... In order to provide useful information to potential consumers of legal services, lawyers may advertise, but only in conformity with DR 2-101.

Pending the adoption of a rule on specialization, a lawyer may not publish or broadcast a communication that contains any listing of legal services for specific areas of practice without including the precise wording of the disclaimer contained in DR 2-101(C).1

This 13th day of June , 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.