Describing Fields of Practice

Fields of Practice and Specialization

Describing Fields of Practice

A lawyer who wants clients must first tell them what kind of law the lawyer practices. The Model Rules start from a permissive premise: a lawyer may communicate information about the lawyer's services through any media.¹ A website, a directory listing, a letterhead, and a billboard all qualify. A statement of the fields in which the lawyer works is among the most useful things any of them can carry. A person with a landlord dispute or a will to draft needs a lawyer who handles that kind of matter, and an accurate list of fields lets that person sort the choices without calling lawyers at random.

The First Amendment supports that permission. In Peel v. Attorney Registration and Disciplinary Commission of Illinois, the Court recalled that Bates v. State Bar of Arizona had brought lawyer advertising within the First Amendment's protection.² It then restated the limits. Truthful advertising about lawful activity is protected. Misleading advertising may be prohibited entirely. And a state may not ban an entire type of potentially misleading information, a listing of areas of practice being the Court's own example, if the information can also be presented in a way that is not deceptive.³

The third limit explains why a state cannot answer the risk of deceptive listings by banning listings altogether. A blanket ban would silence the many accurate listings to stop the few deceptive ones, while a requirement of non-deceptive presentation stops the deception and leaves the truthful speech alone.

A truthful description of a field therefore needs no credential. A lawyer who primarily does estate work or real estate transactions can say so, and lawyers generally may communicate that they concentrate in a particular area of law.⁴ The general limit is the rule against false and misleading statements, which reaches a description of practice areas like any other communication.⁵ Some states add a restriction on one particular word, taken up below.

The violation in that scene lies entirely in the misdescription of the work, and no question about certification arises. The harder question is where a description ends and a claim of formal recognition begins. “Concentrates in estate planning” tells the public what fills the lawyer's days. “Certified specialist in estate planning” tells the public that an organization has certified the lawyer, and the rules attach conditions to that claim.

Under Rule 7.2(c), a lawyer may state or imply certification as a specialist only if the lawyer has been certified by an organization approved by an appropriate authority of the state, the District of Columbia, or a U.S. Territory, or accredited by the American Bar Association, and the communication clearly identifies that organization by name.⁶ The trigger is a statement or implication of certification. A plain description of a field does not, by itself, reach that rule. The later sections of this chapter take its two conditions one at a time.

Many states also forbid the word “specialize” and its variants unless the lawyer has completed a certification or other process that the state's bar approves.⁷ In those states, a lawyer can say something true about her work and still break the rule by choosing the wrong verb.

The two hypotheticals fail for different reasons. The first lawyer misdescribes his work. The second describes hers accurately and still uses a word that her state reserves for certified lawyers. Whether a given word is off-limits depends on the state, so the state-variation sections below control any jurisdiction-specific question.