Ethics Docket No. 1990-36

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1990-36

Advertising/Legal Directory

Your letter of inquiry poses the following facts and issues: West Publishing Company ("West") is currently preparing a legal directory of individual attorneys on a state-by-state basis. The proposed listing is to include the name, address, birthdate, education, associated law firm, jurisdictions of admission to the bar, representative clients and/or cases, and references of the attorney who is profiled. In addition to the foregoing, West would also like to publish the attorney's certified areas of specialty, if any, and the representative fields of law in which that attorney practices, as measured by a percentage. Prior to establishing such a directory, West has asked the Committee to answer several questions in order to ensure that the directory complies with the ethical rules and considerations enacted under Maryland law. The questions are set forth, as follows:

1. What are the certified specialties for Maryland?
   The Maryland Bar Association does not certify areas of specialty.
2. Can one list areas of practice?
   On several occasions, the Committee has been confronted with the issue of whether it is ethically permissible for an attorney, in his or her biographical section, to list the areas of practice to which he or she devotes time or to which he or she may be considered a specialist. See Ethics Docket Numbers: 80-10, 85-5 and 88-85.

The ethical rules which govern this issue are Rules 7.1 and 7.4 of the Maryland Rules of Professional Conduct ("Rules").

Rule 7.1 is the general rule concerning all communications by a lawyer regarding its services. Rule 7.1 is as follows:

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:

1. contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
2. 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 misconduct or other law; or
   
   
3. compares the lawyer's services with other lawyer's services, unless the comparison can be factually substantiated.

Rule 7.4 is stated as follows:

A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law, subject to the requirements of Rule 7.1.¹

Thus, assuming compliance with Rule 7.1 and 7.4, a lawyer is ethically permitted to indicate the areas of practice he or she enjoys in communications regarding the lawyer's services.

1. Can an attorney or law firm state that a certain percentage of their practice is in a certain area?
   
   Attached to the letter you wrote were sample listings. One category of these listings, entitled "Practice," identifies those areas of the law the lawyer engages in and immediately next to those areas of law is a corresponding percentage (i.e. "85% Family Law, 5% Litigation and 10% Personal Injury"). From this information, it is unclear whether the percentage is related to the number of clientele in each area or the amount of time spent in each area. In addition, it is also unclear whether these percentages related to the work of the individual attorney or the entire law firm with which the attorney is associated. Because these percentages do not more accurately reflect those elements on which a member of the public should rely upon in choosing legal counsel, such as the education, experience and personal qualifications of the attorney in each particular area, the Committee believes that the listing of simple percentages under the heading Practice can be misleading and needs clarification.
   
   
   
2. Can one list their certified specialty in a legal directory? Does this include any miscellaneous federal courts e.g. copyright? Or a non-legal area e.g. certified public accountant?
   
   

   In addition to Rules 7.1 and 7.4, Rule 7.2, entitled "Advertising," states the attorney's right to advertise through the public media. The Comment to this Rule acknowledges that advertising now plays an important role in assisting the public to obtain legal services and, in this respect the Comment specifically authorizes, subject to other requirements set forth in the rules, the following information, or types of information, to be disseminated to the public:

   "…information concerning a lawyer's name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance."

   The Committee believes that "other information that might invite the attention of those seeking legal assistance" allows for a fairly broad array of information, including both legal and non-legal qualifications, but only if such information is in accord with the Rules. With respect to the two (2) areas noted in the question, assuming compliance with the Rules, the Committee finds no prohibition against an attorney indicating the areas of law in which the attorney has been certified as a specialist or even areas of non-legal expertise, such as a CPA degree, which may bear directly on the attorney's ability to effectively serve the attorney's clients.

3. What procedures does one go through to be certified?
   
   

   As stated above, Maryland does not certify specialties.

4. Are there any other limits which West should consider or note, when preparing a legal directory of attorneys from Maryland?

The Committee recognizes the importance of legal advertisement; but the Committee will only promote responsible communications of a nonmisleading nature between the legal profession and the public. Over the course of the last few years, this Committee has attempted to more strongly impress upon the legal community its overriding duty to abide by and uphold the Rules. In the Comment section of Rule 7.2, the following passage states:

Every lawyer who participates in communications concerning the lawyer's services is responsible for assuring that the specified Rules are complied with and must be prepared to substantiate compliance with those Rules.

With this in mind, we ask that you remind the attorney's who take part in this listing of the applicable ethical Rules which govern the communications regarding their services.

¹Unlike the Maryland Disciplinary Rules which were superceded by the Maryland Rules of Professional Conduct in 1987, this rule is stated in the affirmative and does not generally prohibit a lawyer from identifying a specialty of practice.

References: Ethics Dockets 1980-10, 1985-5 and 1988-85