Two Court of Appeals Judges Indicate Support for Permitting Attorneys to “Specialize” in Fields
By Michael Wein
Two judges of the Maryland Court of Appeals, in a little-recognized and short concurring and dissenting opinion, have indicated they may be open to attorneys using the word “specialty” or similar words when describing their professional qualifications, including in advertising. In the case of Attorney Grievance Comm’n v. Zhang, Judges McDonald and Adkins noted their disagreement with Judge Watts’ majority opinion on two issues: They felt that the attorney’s actions justified not a disbarment but an indefinite suspension, and, more interestingly for the purposes of this piece, that an attorney’s use of the words “specialty,” “specializing,” or similar iterations in describing his or her practice should not be considered a potentially sanctionable offense under Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 7.4(a).
There was only a small portion discussing MLRPC 7.4 in the 49-page majority opinion, which found 13 violations of the MLRPC to justify disbarment. However, the sustaining of the trial court’s finding of a MLRPC 7.4 violation is precedent in the same way that other reported Maryland appellate opinions are precedent for the state’s practicing attorneys. The Majority left little doubt that the rule remains in full force and effect:
MLRPC 7.4(a) provides: “A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law, subject to the requirements of [MLRPC] 7.1. A lawyer shall not hold himself or herself out publicly as a specialist.” Here, clear and convincing evidence supports the hearing judge’s conclusion that Zhang violated MLRPC 7.4(a). Zhang’s law firm’s website states that it “is one of the best firms specialized in the immigration and corporate law practice in the Washington, DC area.” The website describes Zhang as being “specialized in the immigration and corporation law practice representing corporate and individual clients on their immigration matters and business transactions.” These two statements demonstrate that Zhang held herself and her law firm “out publicly as a specialist” in immigration and corporation law.
Slip. Op. at 35-36. In response, Judges McDonald and Atkins expressed concern about the viability of MLRPC 7.4 and supported revisiting it:
One of the violations in this case suggests that a rule is ripe for revision. In particular, we find that Ms. Zhang violated MLRPC 7.4(a) because she stated on her website that she “specialized” in certain areas of practice. Majority slip op. at 34-35. This appears to be a violation of the rule, but does the rule itself make sense?
A random walk through the websites of law firms listed in the yellow pages of the Maryland Lawyers’ Manual yields many instances in which lawyers strongly imply, or state in other words, that they specialize in certain fields. Limitation of one’s practice to certain areas and disclosure of that limitation to the public is a good thing. A lawyer who tries to be jack of all trades will be competent at none and may commit more serious violations of the MLRPC. A person who is looking for a lawyer to help with a divorce should not waste time considering whether to hire a lawyer whose practice is devoted entirely to workers’ compensation. At worst, the violation of MLRPC 7.4(a) here is a case of “ineligible synonym,” perhaps worthy of a five-yard penalty from the podium, but not itself a cause for disbarment.
The Maryland version of Rule 7.4(a) flatly prohibits a lawyer from holding out as “specialist.” By contrast, Rule 7.4(a) of the current version of the model rules adopted by the American Bar Association (“ABA”) prohibits a lawyer from stating or implying that the lawyer is “certified as a specialist” – a statement that implies that some regulatory body has endorsed the lawyer’s ability in a particular area. The commentary to the model rule states that “A lawyer is generally permitted to state that the lawyer is a ‘specialist,’ practices a ‘specialty,’ or ‘specializes in’ particular fields, but such communications are subject to the ‘false and misleading’ standard applied in Rule 7.1 concerning a lawyer’s services. ABA, Model Rules of Professional Conduct (2013), Rule 7.4, Comment , at 561. Perhaps it would be worth considering a conforming revision to our rule.
Slip Op. at 1-2 (McDonald, J., dissenting and joined by Adkins, J.).
It’s possible Judges McDonald and Adkins’ dissent was motivated by free-speech concerns, as both judges had previously used their separate concurring and dissenting opinions in Attorney Grievance Comm’n v. Frost (involving disbarment of an attorney for unfounded criticisms of judges and other MLRPC violations) to caution against the Attorney Grievance Commission’s engaging in “word police” tactics. The same pairing of Judges Adkins and McDonald also delivered a concurring and dissenting opinion in Attorney Grievance Comm’n v. Narasimhan, 438 Md. 638 (2014), in which a recent law school graduate was disciplined for associating, in a case she was not qualified to handle herself, with an attorney whom she erroneously believed was competent in the particular field. They discussed the tension between an attorney’s duty of competency in a particular field and the inherent difficulty for members of the public and other attorneys – particularly younger attorneys – to verify such competency.
As to MLRPC 7.4(a) in Zhang, it appears Judge McDonald felt the matter resolvable within the confines or by a stricter enforcement of MLRPC prohibition 7.1, against “false and misleading” communications about the lawyer’s services. Though the Majority’s opinion does not directly engage in a Socratic defense of 7.4(a), it appears there’s little dispute that 7.1 is broader than 7.4(a) and would cover misrepresentations or falsehoods by the lawyer as to what he or she “specializes” in. Maryland attorneys appear to generally understand that the word “specialize” is verboten (they may not know why, exactly), and instead use friendlier near-synonyms such as “concentration” or “focus.” This legal fiction may play a role in Judge McDonald’s concern that the MLRPC 7.4 ethical prohibition does not appear to “make sense.”
One justification for the rule remains valid, however: Maryland doesn’t have any “certifications” or “specialties” that are granted by the state Bar. The only true “specialization” in law is federal-based and acknowledged in MLRPC 7.4(b) — patent attorneys are licensed, trained, and certified, and there is a published list of all federally licensed patent attorneys in the country. Arguably, there also exists a similar though not as well-defined “specialization” of attorneys in the federal-focused fields of admiralty, bankruptcy, and immigration law.
Of course, from a layperson’s standpoint, “specialization” would appear to be little different than “concentration,” and if a particular attorney says he or she specializes in wills, domestic relations, personal injury, etc., and that’s truly 99 percent of what he or she does, I’m not sure that’s a 7.1 violation (though, given the wording used, it would appear to be a 7.4(a) violation.) This is because MLRPC 7.1, while a broader prohibition against falsities, is significantly more vague and subjective than 7.4(a) – and therefore susceptible to abuse by unscrupulous attorneys, at least as far as it could be claimed that the attorney believed in good faith that the claim of specialization was true. Still, as Judge McDonald described in Zhang, there may be a net benefit for attorneys and the general public in reexamining MLRPC 7.4(a) and permitting Maryland attorneys to generally let their peers and potential clients know the fields in which they “specialize.”
A reexamination of MLRPC 7.4(a) should not be based solely on the perceived needs of ethics and advertising for Maryland attorneys. Federal constitutional concerns exist as well, a matter not discussed in Zhang. Twenty-four years ago, the U.S. Supreme Court in Peel v. Attorney Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 92 (1990), seems to have barely upheld the constitutionality of a similarly broad ban in Illinois against attorneys’ use of the word “specialize.” Although four justices found there to be significant First Amendment protection for such truthful advertising irrespective of whether there is state-based certification on the legal field, the decision was evidently controlled by Justice Thurgood Marshall’s concurrence finding that the state did have some regulatory ability to manage such certifications and could insist that such declarations by attorneys include appropriate disclaimers to prevent them from being potentially misleading.
So, particularly under Peel, it’s unclear that 7.4(a) passes constitutional muster. Based on the blanket-ban wording, I think it doesn’t, unless Maryland was to insist in appropriate non-deceptive circumstances on disclaimers. And that’s assuming the current Supreme Court would not analyze the issue on more recent S.C. precedent that appears favorable to a broad protection of commercial free speech.
That said, don’t expect the Supreme Court to be lining up to hear Ms. Zhang’s case. The technical 7.4(a) violation – the egregiousness of which Judge McDonald compared to a five-yard penalty in football – appears to be a small part of the eventual decision to disbar her. Still, that this particular issue does not appear to have been substantially addressed since Peel would seem to validate Judges McDonald and Adkins’ view that this MLRPC is ripe for review and change.
Whether that should be done by simply incorporating the analysis of “specialty” claims within the framework for MLRPC 7.1 violations – or, as suggested by Justice Marshall, requiring more direct disclaimers that the claims do not refer to official “boards,” “specialties,” or “certifications” – would seem to merit consideration. An additional method I would suggest, in conjunction with 7.1 restrictions, is that a person could only announce in advertisements that he or she “specializes” in a field that he or she has been trained, studies, or otherwise devotes greater than 50 percent of his or her time in the practice of law. This would, by definition, allow attorneys, should they so choose, to be a “specialist” in only one field or sub-field. (Alternatively, a 35 percent-requirement would permit attorneys to “specialize” in no more than two fields.) Such a limitation would sufficiently constrict the circumstances in which an attorney could claim to be a “specialist,” so as to reduce the possibility for falsity or abuse resulting from attorneys claiming an inordinate amount of specialization in numerous fields.