BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1996-11

(Inquiry No. )

Topics:
Attorney right to hold himself out as a certified specialist.
Digest:
DR 2-105(B) of the New York Lawyer’s Code of Professional Responsibility prohibits an attorney from holding himself or herself out as a specialist unless (1) the certification is made by the “authority having jurisdiction under the laws of this state over the subject of specialization…” and (2) the lawyer abides by “the rules prescribed by that authority.” However, no such authority exists in New York. Therefore, DR 2-105(B) effectively constitutes a blanket ban on a lawyer’s right to hold himself or herself out as a certified specialist. The United States Supreme Court has declared any ban this broad to be unconstitutional. New York lawyers who wish to communicate their certification in a legal specialty are advised that while the current version of DR 2-105(B) may be unconstitutional, the apparent conflict with constitutional doctrine must be resolved by the courts.
Code Provisions:
DR 2-105(B)
Facts Presented:
The Inquiring Attorney has been certified by the National Elder Law Foundation (NELF), a non-profit organization, as an Elder Law Attorney. The NELF is the agency certified by the American Bar Association (“ABA”) to certify lawyers in Elder Law. The NF-LF requires that attorneys who wish to be certified as Elder Law Attorneys must:

have practiced at least five years prior to certification,
practice Elder Law at least 16 hours per week,
have handled at least 60 Elder Law cases, and
sit for and pass a four to six hour examination in elder law.
posting his Elder Law Certificate in his law office,
issuing a press release to his clients and others, including the media,
listing a certification on his law firm letterhead, brochures and flyers, and related materials issued to either clients or the public at large.
The Inquiring Attorney wishes to hold himself out as an elder law specialist by:

Inquiry:
May an attorney ethically hold himself out as a certified specialist by posting the certificate of specialization, issuing a press release, and listing the certification on letterhead, brochures, flyers, and related materials given to clients or to the public?
Determination:
This issue must be resolved by the courts.
Analysis:
A. History of Specialization in New York..

New York State has traditionally prohibited all listing or advertising of certification or specialty status. New York Canons of Ethics, Canon 27, (1909). In 1951, the American Bar Association amended Canon 27 to authorize lawyers to list the specialties of Admiralty, Patent and Trademark. ABA Canons of Professional Ethics, (1951). While New York did not formally follow suit and amend the Canons, the New York State Bar Association (“NYSBA”) issued two ethics opinions which stated that attorneys could ethically list specialization in Admiralty, Patent and Trademark. N.Y. State Op. 21 (1965); N.Y. State Opinion 24 (1966).

In 1970 the NYSBA adopted the Lawyer’s Code of Professional Responsibility, (the “Code”) which was thereafter adopted by the four Appellate Divisions in various court rules. DR 2-105 was based on the ABA Model Code and at that time read as follows:

DR 2-105 Limitation of Practice

A. A lawyer shall not hold himself out publicly as a specialist or as limiting his practice, except as permitted under DR 2-102(A)(6) or as follows (in pertinent part):

1.

A lawyer admitted to practice before the United States Patent Office may use the designation “Patents” “Patent Attorney,” or “Patent Lawyer,” or any combination of those terms, on his letterhead and office sign. A lawyer engaged in the trademark practice may use the designation “Trademarks,” ‘Trademark Attorney,” or “Trademark Lawyer,” or any combination of those terms, on his letterhead and office sign, and a lawyer engaged in the admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty,” or “Admiralty Lawyer,” or any combination of those terms, on his letterhead and office sign.

2.

A lawyer who is certified as a specialist in a particular field of law or law practice by the authority having jurisdiction under state law over the subject of specialization by lawyers may hold himself out as such specialist but only in accordance with the rules prescribed by that authority.

In 1978, the Code was amended to remove authorization for advertising the traditional specializations in Admiralty, Patent and Trademark. The amended version of DR 2-105, which remains in effect today, provides as follows:

DR 2-105 Identification of Practice and Specialty

A. A lawyer or law firm may publicly identify one or more areas of law in which the lawyer or the law firm practices, or may state that the practice of the lawyer or law firm is limited to one or more areas of law.

B. A lawyer who is certified as a specialist in a particular area of law or law practice by the authority having jurisdiction under the laws of this state over the subject of specialization by lawyers may hold himself or herself out as a specialist but only in accordance with the rules prescribed by that authority.

DR 2-105(B) thus assumes the existence of an authority within the state to certify New York lawyers as specialists, and perhaps the drafters contemplated that specialty certification would certainly be granted to practitioners in the traditional specialties of trademark, patent, and admiralty. However, in more than eighteen years since adoption of this provision, no certifying authority has ever been established in New York.. Consequently, if DR 2-105(B) is read literally, then no lawyer in New York can hold himself or herself out as a specialist or advertise certification in a specialty area. (Despite the amendment to DR 2-105, there remains an apparent exception for Admiralty, Patent and Trademark. See Nassau Bar Ethics Op. 85-1.)

B. Peel v. Attorney Registration and Disciplinary Commission.

In 1990, the United States Supreme Court decided in Peel v. Attorney Registration and Disciplinary Commission, 496 U.S. 83 (1990), that an attorney has a constitutional right under the commercial speech doctrine to advertise certification as a specialist by a bona fide organization. Attorney Gary E. Peel’s law firm letterhead stated that he was certified as a civil trial specialist by the National Board of Trial Advocacy (NBTA). The Illinois Attorney Registration and Disciplinary Commission found this advertising misleading and disciplined Peel for violating Illinois DR 2-105(a)(3), which stated in pertinent part that “no lawyer may hold himself out as “certified” or a “specialist” except in the Admiralty, Patent and Trademark areas.

The Supreme Court noted that commercial speech could be regulated, but that interference with speech must be in proportion to the interest served. Peel, 496 U.S. at 100, citing In re R.M.J., 455 U.S. 191, 203 (1982) The Court therefore held that a blanket ban on truthful advertising could not pass constitutional muster. The Court also concluded that Peel’s letterhead was not misleading, that there was no issue as to the bona fides and relevance of NBTA certification, and that an attorney’s disclosure of bona fide certification serves the public and encourages the development and utilization of meritorious certification programs for attorneys. Peel, 496 U.S. at 110-111.

C. Current New York Law.

Peel has been largely ignored by the authorities in New York. Despite a recommendation in 1991 by the Committee on Professional Ethics of the Association of the Bar of the City of New York to amend DR 2-105(B) to conform to Peel, no amendment has been made. See Advertising of Private Certification after Peel v. Illinois Registration and Disciplinary Commission 46 Record 391 (1991).1/ In 1992, the NYSBA published an opinion noting that the certifying authority in New York provided for in DR 5-102(B) had never been implemented and therefore — without making any reference to Peel — concluded that the advertising of specialization by an attorney, even if truthful, would be misleading. N.Y. State Op. 54-92. This conclusion appears to clash with the holding in Peel.

However, Professor Roy Simon has termed DR 2-105(B) an “empty rule,” and declares that New York attorneys need not wait for an authority to be established because they have the constitutional right to advertise their specialty certification pursuant to the Supreme Court opinion in Peel. SIMON’S NEW YORK CODE OF PROFESSIONAL RESPONSIBILITY ANNOTATED 95 (Shepard’s 1995).

The failure in New York to establish a certifying authority is unfortunate, since some state regulation is permitted under Peel (496 U.S. at 116) and the establishment of a certifying authority may well satisfy constitutional requirements. See Florida Bar v. Went for It, Inc., 115 S. Ct. 2371 (1995); see also Texans Against Censorship, Inc. v. State Bar of Texas, 888 F. Supp. 1328 (1995). In the absence of a certifying authority, however, the literal language of DR 2-105(B) still appears to prohibit an attorneys from holding themselves out as specialists, and only the courts of this state, which are responsible for attorney discipline, can address the apparent constitutional infirmity.

Thus, this Committee cannot opine on whether inquirer may ethically advertise his certification in Elder Law. We call upon the appropriate authorities to implement constitutionally valid measures in the regulation of attorney advertising of specialty certification.

(Approved by the Executive Subcommittee on 6/18/96; approved by the fall Committee on 6/26/96)

1/ We note that the NYSBA Special Committee to Review the Code of Professional Responsibility has proposed amendments to DR 2-105 which appear to conform to Peel, and the House of Delegates of the New York State Bar Association approved those amendments in June of 1996 shortly after the text of this opinion was approved. However, the proposed amendments are not scheduled to be forwarded to the Appellate Divisions for their consideration until sometime in 1997.