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Legal Marketing Ethics

Can I Say That? Part Three

By William Hornsby

What do you say when people ask you what you do? And can you say it in a way that doesn’t alarm the ethics police? In this third installment in his marketing ethics series, Will Hornsby explains some of the stickier points of networking, meeting new people and explaining what you do. Is it, for example, okay to say you “specialize?”

You’re at a party, introduced to someone as an attorney. What’s the first thing they say? “What do you specialize in?” The problem is that we have special ethics rules governing our use of “specialization.” It’s not likely the ethics police are patrolling the party, but when using the variations of “specialization” in marketing endeavors, we need to be careful.

The concept of lawyer specialization emerged in the 1970s and tried to track the model that was so successful for doctors. Some states created structures for lawyers to become certified specialists. The ABA Model Rules of Professional Conduct created a special rule addressing specialization. At first, lawyers who were certified as specialists by their states could say they specialized in their field of practice, but other lawyers could not—regardless of how much they specialized in their field. Then, after a 1990 Supreme Court decision, lawyers who were certified by bona fide accrediting entities could advertise that they were certified specialists. But, still, lawyers who were not certified could not say they specialized.

Almost a decade ago, in 2002, the ABA amended its Model Rules to permit lawyers to say they specialize as long as they did not misrepresent that they were certified as specialists. Some states have adopted this rule change and some have not.

So, where does that leave us today? Lawyers who are certified as specialists by their states or by an approved certifying entity can say they specialize in their field of practice. Lawyers who are not certified in those states that have adopted ABA Model Rule 7.4 can say they are specialist under two conditions. First, they cannot state or imply they are certified if they are not. Second, they must comply with their state’s rule addressing misleading statements. Several states do not allow lawyers to compare their services to other lawyers unless the comparison is “substantiated.” A mere reference to being a “specialist” may be deemed an “unsubstantiated comparison.”

There are some safe-harbor alternatives. In most states, lawyers can say they “concentrate in” a field of practice or that they “focus in” the field. Lawyers can also say, in most states, they are a lawyer in their field of practice. For example, they can state they are an immigration lawyer, bankruptcy lawyer and so on. But these rules do vary state-by-state and every lawyer needs to check the rules to be certain he or she complies.

Will Hornsby has served as staff counsel at the American Bar Association for the past 23 years. He writes and speaks extensively on issues of ethics, technology and client development. Will is also an adjunct professor at John Marshall College of Law, where he teaches the first course on the ethics of a technology-based law practice. Follow him @willhornsby

This material should not be construed as legal advice or the policy of the ABA or any of its constituent entities.

Illustration ©ImageZoo.

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William Hornsby William Hornsby

Will Hornsby is an attorney and adjunct professor at Chicago-Kent College of Law, where he teaches the professional responsibility of innovative and tech-based legal services. After serving as staff counsel in the ABA’s Division for Legal Services for 30 years, Will now champions access to legal services through his law firm at www.willhornsbylaw.com. He writes and speaks extensively on issues of ethics, technology and client development. Follow him on Twitter at @willhornsby.

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