Early Bans on Specialist Claims

Early Bans on Specialist Claims

Under the older ethics rules, a lawyer could not simply claim the word “specialist.” Take a lawyer whose practice is entirely probate work. Illinois let a lawyer or firm specify any area of law in which it concentrates or limits its practice, so she could say as much. But she could not call herself “certified” or a “specialist” unless the rule itself made an exception.¹ The ABA’s approach was stricter in one respect. Before its revision in 1989, the Comment to Model Rule 7.4 also barred any statement that a lawyer’s practice “is limited to” or “concentrated in” an area.² The codes did carve out narrow exceptions to the ban. Those exceptions show how the ban worked and why it became vulnerable in Peel v. Attorney Registration and Disciplinary Commission of Illinois.

The ABA built the exceptions into its model rules in two steps. In 1969 the Model Code of Professional Responsibility adopted DR 2-105, which recognized admiralty, patent, and trademark specialists in DR 2-105(A)(1). It also added DR 2-105(A)(4) for jurisdictions that chose to recognize and certify other specialists. Under that provision, a lawyer certified by the authority having jurisdiction under state law over specialization could hold out as a specialist, but only in accordance with that authority’s rules.³ In 1983 Model Rule 7.4 kept the three traditional fields. It made certification an optional provision for jurisdictions where a regulatory authority grants certification or approves the organizations that do. A lawyer in such a jurisdiction could communicate certification by a named organization or authority, but only if certain conditions were met.⁴

The certification route depended entirely on state action. The District of Columbia adopted DR 2-105(A)(4) as written, but the provision had no practical effect because the District did not certify specialists.⁵ Where no certifying program existed, certification could not serve as a route to the specialist title.

Illinois’s rule shows the older regime in its plainest form. It forbade a lawyer to hold himself out publicly as a specialist except in enumerated cases. A lawyer admitted to practice before the Patent and Trademark Office could use designations such as “Patent Attorney” or “Registered Patent Attorney” on letterhead and office sign. A lawyer engaged in trademark practice could use “Trademark Attorney,” and one engaged in admiralty practice could use “Proctor in Admiralty” or “Admiralty Lawyer.”⁶ The exceptions turned on the lawyer’s field and on a simple status, either admission before the agency or engagement in the practice. None of them asked whether anyone outside the lawyer’s office had checked the claim.

The stated reason for reserving these words was the fear of confusion. The ABA’s Comment reasoned that “specialist” and “specialty” had acquired “a secondary meaning implying formal recognition as a specialist.” It concluded that using them was misleading in states with no formal certification procedures.⁷ The Illinois Supreme Court applied a version of that worry to the lawyer in Peel, whose letterhead said he was “certified” by NBTA and “licensed” by Illinois, Missouri, and Arizona. The court said the juxtaposition “could” lead the public to think his authority to practice trial advocacy came solely from the NBTA certification. It added that the claim of certification tacitly attested to his qualifications as a civil trial advocate, which it equated with an implied claim of superior legal services. On those grounds it held the letterhead inherently misleading, upheld the blanket ban, and censured him.⁸

The secondary-meaning premise was contested from the start. When Rule 7.4 was proposed in 1983, backers of unsuccessful amendments to drop the prohibition on terms argued that the public does not give “specialist” the narrow meaning the profession does. In their view, the public would see no difference between a lawyer who practices only probate law and one who concentrates in it.⁹

The exceptions also drew criticism in Peel. The Comment itself grounded patent recognition in the Patent and Trademark Office’s “long-established policy.” The Peel majority said the exceptions for “Patent Attorney” and “Proctor in Admiralty” ignored the asserted interest in avoiding confusion. In its view, the Comment gave those titles a historical, virtually formal recognition even though no prerequisites governed their use.¹⁰ The dissent offered a different defense. Lawyers had historically been allowed to advertise patent, trademark, and admiralty specialties because the public had trouble finding such attorneys, and finding a civil trial advocate “hardly poses the same obstacle.” The dissent therefore saw no Equal Protection violation.¹¹

A categorical ban is vulnerable for this reason. It asked which words appeared on the letterhead. It never asked whether the claim was true or the certifier reliable, so it treated every use of the forbidden words alike. The Illinois Supreme Court followed that logic. It did not consider whether NBTA certification was reliable, verifiable evidence of a lawyer’s experience as a trial advocate before concluding the letterhead was inherently misleading.¹² The next section takes up the First Amendment challenge to that reasoning.