As you probably know from having studied the Supreme Court cases on advertising of legal services, the state can, without violating the attorney's first amendment rights, discipline attorneys who engage in advertising that is misleading. Claiming that an advertisement is misleading is, in fact, the easiest way for the state to impose discipline in advertising cases.
But what exactly constitutes a misleading ad? That is not such an easy question to answer. Obviously, you would think it means an ad that gives a wrong impression; but that is subject to so much interpretation that it really does not provide much guidance.
Should an ad in which the lawyer says "I get results!" while pounding on a table be considered misleading because it suggests the lawyer always wins? How about one that says "we make them pay!" or that "I have been getting victims higher cash awards for years" or something like that?
I don't know. And now, a case from Indiana should give lawyers reason to worry about exactly what words they use to describe their practice. Choosing the wrong word can not only make the ad misleading it can be interpreted to be a violation of another rule.
In this case, two attorneys agreed to a stipulated sanction for having published an ad in the phonebook's yellow pages promoting themselves as "Specializing in Bankruptcy Relief."
The objection to the add was based on the fact that "[n]either Respondent has been certified as a specialist by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education."
How is the statement in the ad misleading?
The problem is that, subject to limited exceptions, rules of professional conduct ban lawyers from stating, or implying, that they are "specialists" in any particular field of law. See for example, Model Rule 7.4(d). And, as in this case, some courts have found that saying that one specializes in a certain type of practice implies that one has been certified as a specialist in that area.
I am sorry but I think that investing time and money on imposing discipline for the statement in this case is just a waste of resources! To specialize is a verb. I looked it up in the dictionary and it says "to concentrate one's efforts in a special activity, field, or practice." You don't have to be certified to practice bankruptcy law and if the attorneys' main area of practice is bankruptcy law they, in fact, specialize in bankruptcy relief. Can't a lawyer advertise that they specialize in a particular area of the law anymore? How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on.
What do you think? Is advertising that says a lawyer specializes in an area of law (assuming the lawyer does practice mostly in that area) misleading? Should it subject the lawyer to discipline?
UPDATE: May 2013: In a recent case from Louisiana a Hearing Committee has recommended a reprimand for an attorney based on
the fact that his web page stated that he specializes in maritime
personal injury and death cases. See my comment on this new case here.
UPDATE: Oct 2015: In a case called Searcy v Florida Bar, a Federal District Court Judge enjoined the Florida Bar from enforcing a rule prohibiting truthful claims of expertise. The Bar had argued that potential clients would be misled into assuming
that lawyers who advertise that they “specialize” or have “expertise”
are board certified, but the Court found no evidence to support this
argument. Because the rule essentially banned attorneys from making true statements
that describe their areas of practice, the judge concluded the rule was
unconstitutional under the test used to determine the constitutionality
of restrictions on commercial speech under the First Amendment.
Accordingly, the court enjoined the bar from prohibiting the plaintiffs
from making truthful statements on websites, blogs or social media about
their specialty and expertise. Go here for more information.
UPDATE: Sept 2016: Despite the Court's order, the Florida Bar has enacted a proposed amendment to the state's Rules of Professional Conduct and will ask the Florida Supreme Court to approve it. I think the amendment would not pass Constitutional analysis. You can read the proposed new language and get more information here.