Attorney ethics rules offer some great examples of the problems inherent in the mechanistic application of the law. Sometimes, it’s a matter of a well-founded rules being applied to circumstances where technology has gutted the purpose of the rule .[ref]For example, prohibitions on fee-splitting being applied to purchases via Groupon, where there is no danger whatsoever of the fee split interfering with the lawyer’s independent professional judgment.[/ref] But other times, it’s a case of the expansive regulator: the deacons at the bar stretching the breadth of the rule far beyond its logical (or constitutional) limits.
Back in 1990, the Supreme Court held, in Peel v. ARDC, that a bar can’t prohibit an attorney from truthfully advertising that they had been certified as a specialist by a bona fide organization. The Court also expressed skepticism about the state’s position that the word “specialist” has a unique, narrow meaning apart from its generally understood meaning of “a person who has special knowledge and skill relating to a particular job.”[ref] Thanks, Mirriam-Webster![/ref] Nonetheless, many states (including Florida and New York) continue to prohibit attorneys from using terms like “specialist,” “specialize,” “expert,” and “expertise” except in conjunction with a bona fide certification.
What these states are missing is that it’s the certification that’s doing the work. It’s false and misleading if attorneys hold themselves out as being “certified” specialists or experts when no legitimate certifying agency has conferred the honor. But the use of general terms like “specialist” or “expertise” on a standalone basis, with no claim of third party certification? There is virtually no question that prohibiting such use is unconstitutional.
The wonderfully-named New Orleans attorney Kearney Soniat du Fossat Loughlin thought so too. He had been disciplined by the Louisiana disciplinary board for stating on his website: “Loughlin & Loughlin is a plaintiff-oriented pure litigation firm specializing in maritime personal injury and death cases.” Loughlin wasn’t content to take this slap on the wrist, so he appealed the discipline to the Louisiana Supreme Court, challenging the constitutionality of Louisiana’s prohibition on the use of the word “specializing.”
Loughlin won. Unfortunately, he won because the court found that a) he hadn’t intended to break the rule and 2) the public wasn’t harmed. It didn’t address his constitutional argument.
It’s great the Loughlin was willing to take on the bar. I wish more attorneys would do so in cases like this. There are real problems with false advertising that the bars can go after, but policing the use of harmless, ordinary words isn’t one of them.
Indeed. Instead, we have to dance around it, saying things like “focusing on,” and hoping a client doesn’t post a testimonial saying we specialize in something.