Wednesday, May 29, 2013

Is it a violation of the rules to say one specializes in a certain area of the law?

Back in 2011, I wrote about a case from Indiana in which two attorneys were disciplined for stating in an ad in the yellow pages that they "specialized" in bankruptcy practice. The disciplinary authority reasoned that this was the equivalent of saying that the attorneys had been certified as specialists in a given field of law, something with which I do not agree.

Now, a recent case from Louisiana repeats the mistake, and worse.

But first, some background. As you probably know, states 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.

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? I don't think so. I think we can use some common sense here and trust that consumers will not understand that to be the meaning of the message of the ad.

Likewise, I don't think that an ad that says an attorney specializes in a certain area of the law is a problem. After all, "to specialize" is simply a phrase that means "to concentrate one's efforts in a special activity, field, or practice."

If an attorney's main area of practice is bankruptcy law then he or she, in fact, specializes in bankruptcy law. 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.

In the new 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.

Again, I don't see how that can be a problem. But wait! There's more! In this case, the lawyer had in fact received a certificate of maritime specialization from his law school. In other words, he did have a special certificate in the area of law.

Yet, the committee rejected the attorney's First Amendment defense without discussion.

I think this case should be reviewed by the courts and reversed simply because I don't think it is a violation of the rules to say that one specializes in a certain type of practice (as long as it is true that one does, of course).