Rules Committee recommends ending ethics prohibition on “specialist” label
By Michael Wein
In a report released online on Wednesday, the Maryland Rules Committee recommended to the Maryland Court of Appeals that attorneys be no longer prohibited from advertising themselves as “specialists.” This was proposed as an amendment to Rule 19-307.4, Communication of Fields of Practice. (If you’ve never heard of Chapter 19, which now incorporates the Maryland Lawyers’ Rules of Professional Conduct (MLRPC), you’re in good company, as the reorganization only took effect on July 1.) A briefing on why this change has been suggested can be found in my previous extensive write-up two years ago on this Blog.
In that piece, I observed that Judges McDonald and Adkins, in a little-recognized and short dissenting opinion in Attorney Grievance Comm’n v. Zhang, had indicated they may be open to attorneys using the word “specialty” or similar words when describing their professional qualifications, including in advertising. I further noted concern that the entirety of the prohibition was unconstitutional pursuant to the U.S. Supreme Court’s decision in Peel v. Attorney Registration & Disciplinary Comm’n of Ill, 496 U.S 91 (1990), particularly given the greater emphasis on commercial free speech rights in Supreme Court decisions since then (and particularly under Chief Justice Roberts). On pages 21 and 22 of summary of the Committee’s report, it was explained that, while the present iteration of the ethics rule has existed since 1977, the Peel Supreme Court case and recent successful challenges in New York and Florida federal courts have changed the landscape on this particular rule and raised concerns about its validity; indeed, at the time of the Committee’s 187th report, Maryland was then one of only two states that still prohibited attorneys from advertising themselves as specialists or as certified specialists. It appears that the Rules Committee and Maryland State Bar Association didn’t want a test case in federal court, and this was probably a wise move.
The comment period for this proposed rule is through November 14, though an open meeting of the Maryland Court of Appeals on it has not been scheduled, and thus there’s no clear date at present for when the proposed Rule will be considered or take effect. There will likely, however, be efforts in the next few years to establish some standards for certification (which in some states are quite extensive) as a “specialist” or similar type of classification. The net effect for most Maryland attorneys is that, as Judge McDonald obliquely indicated in Zhang, the days of being forced to use synonyms such as a “concentration” in a particular area of law — or, if they are particularly daring, saying they are a “specialist” but using quotation marks — may be coming to an end. Stay tuned.