After Tennessee added Estate Planning as a certifiable specialty, what specialization-certification disclosures did lawyer advertising have to include?

Plain-English summary

This opinion amended 95-F-137 to reflect a change in the certification-of-specialization program. It recited the program's history (certification available in Civil Trial, Criminal Trial, Business Bankruptcy, Consumer Bankruptcy, and Creditors' Rights from June 15, 1994; Medical, Legal, and Accounting Malpractice and Elder Law added August 25, 1995) and added that the Supreme Court had approved standards making certification available in Estate Planning on January 6, 1997.

The disclosure mechanics were otherwise the same as in 95-F-137. Under DR 2-101(C), an advertisement could trigger up to three disclosures (a "Certified ... Specialist" disclosure, a "Not certified ... Specialist" disclosure, and a "Certification ... is not currently available in Tennessee" disclosure), each required in the rule's precise quoted wording with no variations or abbreviations, displayed prominently (DR 2-101(C)(6)) and accompanied by the name of the responsible lawyer (DR 2-101(C)(1)). DR 2-101(C)(5) continued to bar stating that certification was unavailable for an area the Commission had identified as included in a certified specialty or that was reasonably included in a certified area.

Because Estate Planning was now certifiable, the opinion described the practice descriptions reasonably included within that specialty (fields using the terms "Wills," "Trusts," "Estates," "Decedents' Estates," and "Probate," and related tax consequences, including generation-skipping transfers), alongside the previously listed Civil Trial, Criminal Trial, Bankruptcy/Creditors' Rights, and Elder Law examples, and an updated list of areas for which certification was not available.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 95-F-137(a) 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: What did 95-F-137(a) change from 95-F-137?

A: Per the opinion, it updated the list of certifiable specialties to reflect that the Supreme Court had made certification available in Estate Planning effective January 6, 1997, and described which practice descriptions were reasonably included in that specialty. The disclosure requirements under DR 2-101(C) were otherwise the same.

Q: Did the exact disclosure wording still have to be used verbatim?

A: Yes. The opinion repeated that, because the Supreme Court set the disclosure language within quotation marks in the rule, the precise wording was required with no variations or abbreviations, displayed prominently, and the responsible lawyer had to be named.

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.

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 certification-of-specialization program after Estate Planning was added. 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, now part of the advertising rules 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: Specialization-Certification Ad Disclosures
• 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-137a

Original opinion text

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

95-F-137(a) - 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(a)

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

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. Most recently, the Supreme Court, approved standards making certification of specialization available in the area of Estate Planning on January 6, 1997.

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)(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 in 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 Mediation

Admiralty Patent, Trademark &

Commercial Law Copyright Law

Environmental Law Real Property Law

Health Care Law Securities Law

Immigration Law Taxation Law

Labor & Employment 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 in 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 specialty:

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 or long-term care planning.

The area of Estate Planning includes any field utilizing the terms “Wills”, “Trusts”, “Estates”, “Decedents’ Estates”, “Probate”, and many other reasonably included areas, or tax consequences specifically relating to these areas or to generation-skipping transfers.

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 11th day of December, 1998.

ETHICS COMMITTEE:

James M. Glasgow, Jr., Chair

Herman Morris, Jr.

APPROVED AND ADOPTED BY THE BOARD