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

Plain-English summary

The opinion addressed the disclosures DR 2-101(C) (embodied in Tennessee Supreme Court Rule 8) required when a lawyer advertised any area of practice, in light of the Tennessee attorney certification-of-specialization program that took effect June 15, 1994. It explained that up to three disclosures could be triggered for a single advertisement: a "Certified ... Specialist" disclosure for an area in which the lawyer was certified, a "Not certified ... Specialist" disclosure for an advertised area in which the lawyer was not certified, and a "Certification ... is not currently available in Tennessee" disclosure for an advertised area where no certification existed.

Because the Supreme Court set out the disclosure language within quotation marks in the rule, the opinion concluded the precise wording was required with no variations or abbreviations. DR 2-101(C)(6) required the disclosures to appear prominently, and DR 2-101(C)(1) required the advertisement to name the lawyer or lawyers responsible for the advertised services. The opinion also applied DR 2-101(C)(5), which barred stating that certification was not available in an advertised area if the Commission had identified that area as included in a certified specialty, or, absent such identification, if the advertised area was reasonably included in a certified area.

The opinion then catalogued the Commission's then-current determinations: it listed areas in which certification was not available (such as Administrative Law, Admiralty, Commercial Law, Environmental Law, Estate Planning and Probate, Health Care Law, Immigration Law, Labor and Employment Law, Mediation, Patent/Trademark and Copyright Law, Real Property Law, Securities Law, and Taxation Law), identified Family Law and several litigation categories as included within Civil Trial, and gave examples of practice descriptions the Board considered reasonably included within the Civil Trial, Criminal Trial, Bankruptcy/Creditors' Rights, and Elder Law specialties.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 95-F-137 on September 11, 2015, "due to changes in the law or rules." 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. Do not rely on it as current; verify the current Tennessee Rules of Professional Conduct and any certification-of-specialization requirements before acting.

Common questions

Q: When a Tennessee lawyer advertised a practice area, what disclosure did DR 2-101(C) require?

A: Per the opinion, the advertisement had to carry the precise "Certified," "Not certified," or "not currently available" disclosure that fit the area, using the rule's exact quoted wording without variation or abbreviation, displayed prominently, and it had to name the responsible lawyer.

Q: Could a lawyer advertise that certification was "not available" in an area?

A: The opinion concluded that DR 2-101(C)(5) barred that statement for any area the Commission had identified as included in a certified specialty, or, absent such identification, for an area 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. See the later opinions in the specialization-advertising line, including 95-F-137(a) and 2001-F-137(b).

Background and rules framework

The opinion interpreted former DR 2-101(C), the advertising-disclosure provision of Tennessee Supreme Court Rule 8, as applied to the Tennessee certification-of-specialization program. The modern analog is Model Rule 7.4 / the corresponding Tennessee Rules of Professional Conduct on communicating fields of practice and certification as a specialist. Specialization-certification disclosure has since been treated as part of the advertising rules now found at RPC 7.1 through 7.4.

Citations and references

Rules of Professional Conduct (former Code):

• DR 2-101(C) (advertising disclosures), including subsections (C)(1) (responsible lawyer), (C)(2)-(4) (the three specialization disclosures), (C)(5) (no false "not available" claim), and (C)(6) (prominent display). Modern analog: Model Rule 7.4 / Tennessee RPC 7.4

See also

• Tennessee Op. 95-F-137(a): Specialization Disclosures (Estate Planning Added)
• Tennessee Op. 2001-F-137(b): Specialization-Certification Ad Disclosures
• Tennessee Op. 2001-F-144(b): Online Practice-Area and Specialization Disclosures

Source

• Landing page: https://www.tbpr.org/ethic_opinions/95-f-137

Original opinion text

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

95-F-137 - Vacated*

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

Formal Ethics Opinion 95-F-137

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

The Tennessee Supreme Curt 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.

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 Family Law as being included n the area of Civil Trial practice. In addition the Commission has presently identified the following areas wherein certifications of specialization are not available:

Administrative Law Labor & Employment Law

Admiralty Mediation

Commercial Law Patent, Trademark &

Environmental Law Copyright Law

Estate Planning & Probate Real Property Law

Health Care Law Securities Law

Immigration Law Taxation 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, Domestic Relations, Family Law, Workers’ Compensation and Commercial Litigation as being included n 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 speciality:

The area of Civil Trial also reasonably includes Accidents, Criminal Injuries, Death Claims, Divorce, 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 o long-term care planning.

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 8th day of December, 1995.

ETHICS COMMITTEE:

James M. Glasgow, Jr., Chair

Herman Morris, Jr.

APPROVED AND ADOPTED BY THE BOARD