Did a Tennessee lawyer need the DR 2-101(C) specialization disclaimer to list three areas of practice in Martindale-Hubbell's biographical section?

Currency note

This opinion was issued in 1984, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. It was also later overruled in part: Formal Ethics Opinion 99-F-144 (1999) held that once Martindale-Hubbell began publishing online and marketing itself to the public, lawyers listing practice areas on the Internet had to comply with DR 2-101(C)'s disclosure requirements, and it overruled this opinion "to the extent of any conflict." Subsequent rule amendments may have changed the analysis further. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

A lawyer asked about the ethical obligations involved in listing, in the biographical section of Martindale-Hubbell, up to three areas of practice to which he devoted a significant portion of his time. The opinion described a new feature debuting in the 1985 Edition of the directory: lawyers with a biographical sketch could indicate up to three fields of law, printed in a distinctive type style at the end of the sketch, available (for that edition) only in states without a formal specialization program. The directory's own explanatory notes would state that the fields of law "indicate the area(s) of practice to which he or she devotes a significant portion of professional time," that the information is supplied by the attorney and "constitutes a 'representation' by him or her," and that it "does not imply official approval or certification by any State authority," while separately flagging any "officially recognized" specialties with the name of the certifying authority.

The opinion quoted Disciplinary Rule 2-101(C), which required that a lawyer who publishes or broadcasts a 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." It reasoned that the Martindale-Hubbell directory was, at that time, intended for and marketed to lawyers rather than the lay public, so the risks the rule's precise disclaimer was meant to address for public-facing advertising were not present. On that basis it found that Martindale-Hubbell's own proposed explanatory-notes language substantially complied with DR 2-101(C)'s disclaimer requirement.

Common questions

Q: Could a Tennessee lawyer list more than one area of practice in Martindale-Hubbell?

A: Yes. The opinion addressed Martindale-Hubbell's new feature letting each lawyer indicate "up to three area(s) of law encompassed in that lawyer's practice," available in states without a formal specialization program.

Q: Did the lawyer have to use DR 2-101(C)'s exact disclaimer wording in the directory listing?

A: No. The opinion found that Martindale-Hubbell's own explanatory-notes disclaimer, stating the information "does not imply official approval or certification by any State authority," "substantially complies with the disclaimer contained in DR 2-101(C)."

Q: Why did the opinion treat a Martindale-Hubbell listing differently from a public advertisement?

A: Because, as the opinion put it, "the Martindale-Hubbell Law Directory is intended for the use of lawyers in the practice of law and is marketed on that basis," so "the risks incumbent in advertisements intended for the lay public are not present in this instance."

Q: Is this opinion still good law?

A: No, in part. Formal Ethics Opinion 99-F-144 (1999) overruled it to the extent of any conflict once Martindale-Hubbell began publishing online and marketing to the public; current Internet listings must comply with DR 2-101(C)'s disclosure requirements.

Background and rules framework

The opinion applied Disciplinary Rule 2-101(C) of the Code of Professional Responsibility, which required a lawyer publishing or broadcasting a listing of specific practice areas to include precise disclaimer wording about certification of expertise. 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.

Citations and references

(No cases or other 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. 99-F-144: Online Practice-Area Listings and Specialization Disclosures
• Tennessee Op. 99-F-144(a): Online Practice-Area Listings (December 1999 Reissue)
• Tennessee Op. 2001-F-144(b): Online Practice-Area Listings and Specialization Disclosures

Source

• Landing page: https://www.tbpr.org/ethic_opinions/84-f-76

Original opinion text

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

84-F-76 - Listing areas of practice in Martindale-Hubbell

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 84-F-76

Inquiry is made as to the ethical obligations of an attorney in listing in the biographical section of Martindale-Hubbell three areas of practice to which he devotes a significant portion of his time.

Beginning with the 1985 Edition, the Martindale-Hubbell Law Directory will afford each attorney for whom a biographical sketch is published, the opportunity to indicate up to three area(s) of law encompassed in that lawyer's practice. This will appear at the end of the biographical sketch. For the 1985 Edition, this will only be offered in states that do not have a formal specialization program in place.

Reference to the area(s) of practice will appear in some distinctive type style, probably italics. This new feature will not be available to individual subscribers as they display this information in the Statement of Practice section of their professional card which immediately follows the address of the office and, therefore, this would be repetitive in those cases.

The following language will appear at the bottom of each page of the biographical section:

For significance of fields of law in biographical sketches, see explanatory notes on inside cover.

The Explanatory Notes and Symbols Section which appears on the front inside cover of each volume of the Directory will read as follows:

Fields of Law appearing at the end of individual lawyers' biographical sketches indicate the area(s) of practice to which he or she devotes a significant portion of professional time. In each case, the information has been supplied by the attorney and constitutes a 'representation' by him or her and does not imply official approval or certification by any State authority.

All 'officially recognized' specialties are indicated with language which identifies the approving or certifying authority. Such programs are now in existence in Arizona, California, Florida, Iowa, New Mexico, South Carolina and Texas.

The Martindale-Hubbell Law Directory is intended for the use of lawyers in the practice of law and is marketed on that basis. The directory is not actively marketed to the lay public.

Disciplinary Rule 2-101(C) of the Code of Professional Responsibility provides:

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.

The risks incumbent in advertisements intended for the lay public are not present in this instance. Therefore, for the circumstances as related herein, the disclaimer as proposed in

the Martindale-Hubbell Law Directory substantially complies with the disclaimer contained in DR 2-101(C).

Therefore, there is no impropriety in an attorney listing in the biographical section of Martindale-Hubbell three areas of practice to which he devotes a significant portion of his time.

This 16th day of October, 1984.

ETHICS COMMITTEE:

G. Wilson Horde

Charles T. Herndon, III

Henry H. Hancock

O. B. Hofstetter, Jr.

William R. Willis

APPROVED AND ADOPTED BY THE BOARD