MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2012-01
Whether lawyer may advertise that he “specializes” in certain areas of practice. Whether retired federal administrative law judge may use the designation “ Retired U.S. Federal Administrative Law Judge” on letterhead.
Your two inquiries were considered by the Committee on Ethics of the Maryland State Bar Association and I have been assigned to respond on its behalf. You advise that you are retiring from federal employment as an administrative law judge and intend to return to the private practice of law. Your inquiry advises that your law practice would be limited to representation of individuals seeking social security disability and SSI benefits.
First, you have asked whether your letterhead may also note that you “specialize” in Social Security Disability and SSI (supplemental security income). Second, you have asked the Committee for an opinion as to whether it believes you can designate on your letterhead that you are a retired federal judge.
The Committee has reviewed inquiries regarding lawyer advertising, including the wording of letterhead, in the past. In Ethics Opinions 94-35 and 2000-21, for example, the Committee commented that it does not approve or disapprove specific language or advertising material and only comments on the general rules regarding advertising.
That said, with regard to your first inquiry, the Committee draws your attention to the fact that the issue of an lawyer “specializing” in a particular area of law is one that has been considered by the Maryland Court of Appeals. A 1992 amendment to Rule 7.4 of the Maryland Rules of Professional Conduct for Lawyers added the following language to the Rule:
A lawyer shall not hold himself or herself out publicly as a specialist.
Further, the Committee has also previously opined that use of the term “expert” in place of “specialist” is not in keeping with the spirit of Rule 7.4 and therefore should not be used. See Ethics Opinion 2000-21.
As to your second inquiry, while the Committee could find no opinions specifically referring to the propriety of former judges attempting to advertise their former judicial position, it
has from time to time drawn guidance on this subject from American Bar Association informal Ethics Opinion 1448 (1979). That opinion construed the former Disciplinary Rules and Canons, and though no longer determinative, provides appropriate guidance. See. Eg., MSBA Ethics opinion 94-55.
Both ABA Opinion 1448 and Maryland Ethics Opinion 94-55 find the context to be generally determinative regarding the propriety of the use of the term “retired judge.” In both those opinions, the analysis focused on whether the use of the designation “retired judge” would be likely to bias or influence the reader or hearer. The Committee points out that Rule 3.5 provides that a lawyer shall not seek to influence a judge, jury or respective official.
Additionally, Rule 7.1 states that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. In particular, Rule 7.1(b) provides that a communication is false or misleading if it, “is likely to create an unjustified expectation about results that lawyer can achieve…” The Committee observes for example, that reference to a l lawyer by the honorific title “judge” could be construed as an attempt to unduly influence jurors, a presiding judge or potential witnesses. Moreover, a written communication on letterhead that denotes the writer as a retired judge may be viewed as an attempt to intimidate the recipient. This Committee cannot address the myriad possible circumstances arising from a lawyer’s correspondence with others, whether it be to clients, potential clients, opposing counsel, pro se litigants, or others. Thus, the Committee concludes that although it is no per se violation of the Rules of Professional Conduct for Lawyers for an attorney to use the designation “retired judge” on his/her letterhead, such use must not be done to gain unfair advantage or to intimidate others.
This Committee does not opine on the interpretation of the Canons of the Maryland Code of Judicial Conduct (Maryland Rule 16-813) or corresponding federal canons but does note that there are judicially- imposed limitations on a former judge’s use of the word “retired” on letterhead (See, e.g., Maryland Judicial Ethics Opinion No. 26 (2003) or 139 (2004)) and recommends that you contact the appropriate bodies for such further advice and direction and they may provide.
The Committee hopes that it has addressed your inquiry and thanks you for your interest. Our opinions are available online at www.msba.org.
Authorities:
Rules 3.5; 7.1 and 7.4;
American Bar Association informal Ethics Opinion 1448
Maryland State Bar Association Ethics Opinions 94-35, 94-55 and 2000-21.
ASSIGNED TO:HON. JOAN B. GORDON
DATE ASSIGNED:APRIL 21, 2011
DATE DISTRIBUTED:OCTOBER 17, 2011