This is a “heads-up” to an important development that may impact your practice.
Maryland Rule of Professional Conduct 7.4 generally precludes a lawyer from holding himself or herself out as a specialist. [The exception being for patent attorneys.] This rule is undoubtedly unconstitutional.
The “granddaddy” of lawyer advertising cases is, of course, Bates v. Arizona, 433 U.S. 350 (1977). The Bates Court held that States may regulate advertising by lawyers only to the extent necessary to prevent “false, deceptive or misleading” communication. Whether a lawyer can assert that he or she is a “specialist” in a particular type of practice was addressed by the Court in Peel v. Atty. Registration and Disciplinary Comm’n of Illinois, 496 U.S. 91 (1990). The Peel Court concluded that an attorney who has been certified as a specialist by an organization, assuming it is not a sham, may advertise that fact. The Peel Court held that such certification was a statement of fact, not an opinion. In Peel, the attorney was certified as a “trial specialist” by the National Board of Trial Advocacy. The court did, however, permit States to regulate certification to assure that a “qualified organization” stands behind the certification.
In response to these cases, the ABA has recognized various entities that it deems qualified to certify attorneys as “specialists.” Many states have amended their Rule 7.4 to permit a lawyer to hold himself or herself out as a specialist if certified by one of these ABA sanctioned organizations. Some States have tasked the State Bar Association with certification and other States permit certification from any private organization with minimal regulation of the process involved in such certification.
The MSBA Committee on Rules wants to adopt a new 7.4 that permits claims of specialization if the attorney is certified by an ABA approved organization. Generally, an ABA approved organization requires (1) a set number of years in practice, (2) a certain percentage of one’s practice to be in the field of specialization, (3) an examination and (4) 10-12 hours of CLE each year in the practice area. Most importantly, the MSBA Committee on Rules wants fast-track approval of the new rule. [Why the sudden urgency 14 years after Peel is puzzling.]
The MSBA has formed a Committee on Specialization of which I have been appointed a member. Our Committee has asked the Rules Committee to delay approval in order to permit the Section Councils and others to consider options to the new rule and offer feedback. A rule change of this magnitude ought to be fully considered by the entire Bar. I hope the new Rule 7.4 will be presented to the general membership of the MSBA at its annual meeting in Ocean City next Summer before any particular approach to Rule 7.4 is finalized.
Because the Peel Court recognized a legitimate role for the States to regulate certification, getting new Rule 7.4 right is important to the consumer of legal services and to our practices. More information about the new Rule 7.4 may be found at http://www.abanet.org/legalservices/specialization/source.html or, alternatively, you may request information from me via e-mail at [email protected] (please put “Specialization” in the subject line). I would appreciate comments that I could relay to the Specialization Committee.