87-11: Letterhead; Specialization

6/1987

Attorney showing area of specialty on his letterhead that is not recognized by Arizona Board of Legal Specialization.

FACTS

The inquiring attorney is not a certified specialist in any area recognized by the Arizona Board of Legal Specialization. He inquires whether he can utilize stationery containing the following inscription:

"Commercial Law and Litigation Specialty"

He proposes to utilize ordinary office stationery containing the name of the law firm, the names of the members of the law firm, the address, the telephone number, and the jurisdictions where each attorney is admitted, followed by the inscription noted above.

QUESTION

May a lawyer who is not certified as a specialist in any field recognized by the Arizona Board of Legal Specialization, with ethical propriety, use the inscription "Commercial Law and Litigation Specialty" on his office letterhead?

ETHICAL RULES INVOLVED

ER 7.1. Communications Concerning a Lawyer's Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or

ER 7.4. Communication of Fields of Practice

A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is a specialist except as follows:

(a) a lawyer admitted to engage in patent practice before the United States patent and Trademark Office may use the designation “patent attorney" or a substantially similar designation;

(b) a lawyer engaged in admiralty practice may use the designation "admiralty," "proctor in admiralty" or a substantially similar designation; and

(c) a lawyer specializing.in a particular field of law or law practice may hold himself out as such specialist, but only in accordance with the rules prescribed by the Arizona Board of Legal Specialization. (emphasis added)

ER 7.5. Firm Names and Letterheads

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates ER 7.1. * * *

* * * * *

OPINION

It is the opinion of the committee that the words “Commercial Law and Litigation Specialty" proposed to be printed on the lawyer's letterhead constitute a statement or implication that the lawyer is a specialist in the fields of commercial law and litigation.

At present, the Arizona Board of Legal Specialization has recognized five fields for which there may be certification. Those fields are bankruptcy, criminal law, real estate, taxation and workmen's compensation. There is no provision for certification in either commercial law or litigation. ER 7.4 does not prohibit an attorney from communicating a self-imposed limitation of his practice. Thus, the lawyer could indicate on his stationery that he limits his practice to commercial law and litigation, or that he places emphasis on commercial law and litigation in his practice, but he may not hold himself out as a specialist by the proposed language.

The intent of ER 7.4 is, after all, not to mislead the public into believing that one has been certified as a specialist. To expect the public to discern that the indication of a specialty does not mean that the lawyer is certified as a specialist is, the committee believes, asking too much. Most laymen would believe that one who has a “specialty" is a “specialist".

To say that a lawyer's practice is limited to practice in a particular area of the law is a factual assertion of the nature or character of his practice. To indicate, as the inquiring attorney proposes, that he practices within a "specialty", especially in light of the certification as a specialist that is available in certain limited areas, suggests qualifications above the ordinary.

Therefore, it is the opinion of this committee that, except as specifically provided upon certification pursuant to the rules prescribed by the Arizona Board of Legal

Specialization, a lawyer is prohibited from utilizing on his stationery any indication that he is a “specialist", "specializes", "has special emphasis” or any other phrase which has as its base the use of the word "special".

We accordingly conclude that the proposed conduct of the inquiring attorney is not permitted by the Arizona Rules of Professional Conduct.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.