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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Ohio Legal Ethics Narrative

VII INFORMATION ABOUT LEGAL SERVICES

7.4 RULE 7.4 COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION

7.4:100 Comparative Analysis of Ohio Rule

7.4:101 Model Rule Comparison

Ohio Rule 7.4 is similar in many respects to the Model Rule but contains the following differences:

In division (a), Ohio adds the language "or limits his or her practice to or concentrates in particular fields of law." at the end of the sentence.

Ohio has added a new division (c), dealing with trademark practitioners. With this addition, former division (c) (MR 7.4(c)) is relettered division (d) and former division (d) (MR 7.4(d)) is relettered division (e).

In division (e), the words "both of the following apply" are added after "unless"; in subdivision (e)(1), after "organization", Ohio substitutes "approved by the Supreme Court Commission on Certification of Attorneys as Specialists;" in lieu of the Model Rule language.

7.4:102 Ohio Code Comparison

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 7.4: DR 2-105.

7.4:200 Regulation of Claims of Certification and Specialization

  • Primary Ohio References: Ohio Rule 7.4
  • Background References: ABA Model Rule 7.4
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.94-2.98
  • Commentary: ABA/BNA § 21:4001; Wolfram § 14.2.4

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.94-2.98 (1996).

Practice limitations in general: Many lawyers limit their practice to a particular area of law. Potential clients, seeking to employ a lawyer to handle a specific problem, would certainly benefit from a system that permits clients to identify lawyers who practice in their area of need and to exclude those who do not.

The concern is that laypersons may equate a limitation in practice with special competence in the area. While limiting a practice to a particular area may lead to special competence, that is not necessarily the case. Thus, there is a possibility that the public may be misled. Nevertheless, under the Rules, the balance struck permits a lawyer not only to advertise the areas in which he does or does not practice, but also to assert that he is a "specialist," so long as that is the fact.

In this area the U.S. Supreme Court has held that, so long as not misleading, a lawyer's choice of words to describe his practice ("personal injury") cannot be foreclosed by the state's requirement of use of a different descriptive term ("tort law").  In re R.M.J., 455 U.S. 191 (1982). Nor can a state preclude a lawyer from factually describing his experience in a particular area, even though this might cause a reader to infer expertise.  Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). Such communication is commercial speech and is subject to restriction only if "the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved in fact such advertising is subject to abuse." R.M.J., 455 U.S. at 203. See ABA, Annotated Model Rules of Professional Conduct 540 (6th ed. 2007) (commentary).

Against this constitutional backdrop, Ohio Rule 7.4 provides as follows:

First, Rule 7.4(a) affirms that a lawyer may communicate that the lawyer

  • does or does not practice in particular fields of law [and/or]

  • limits his or her practice to or concentrates in particular fields of law.

Obviously enough, "this permits a lawyer to indicate areas of practice in communications about the lawyer's services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted to so indicate." Rule 7.4 cmt. [1].

Claims of specialization: Unlike the former OHCPR, under which a lawyer could not use terms such as "specialist" unless certified as such under Gov Bar R XIV 5(A), Rule 7.4 now provides three tiers of "specialization." In addition to certain historical specialties and the certified specialist heretofore recognized under the Code, both of which are carried forward by Rules 7.4(b)-(e) and discussed further in this section below, Rule 7.4 cmt. [1] now clearly provides that a lawyer can "state that the lawyer is a 'specialist,' practices a 'specialty,' or 'specializes' in particular fields," so long as such statements are not false or misleading. As a result, cases and opinions such as Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 174, 754 N.E.2d 219, 223 (2001) (emphasis in original) ("my entire specialty is representing children and young adults in (often major) criminal matters"); Trumbull County Bar Ass'n v. Joseph, 58 Ohio St.3d 258, 569 N.E.2d 883 (1991) (advertisement in classified telephone directory claimed that lawyer "specialized in" particular area of law); Bd. of Commr's on Grievances & Discipline Op. 99-4, 1999 Ohio Griev. Discip. LEXIS 4 (June 4, 1999) (use of "specializedpersonalinjurylawyers" on firm's web-site); Bd. of Comm'rs on Grievances & Discipline Op. 88-4, 1988 Ohio Griev. Discip. LEXIS 32 (Apr. 25, 1988) (allowing name to be included in listing of firms by specialty) -- all of which found violations of former OH DR 2-105(A) -- are no longer good law, provided such claims are not false or misleading under Rule 7.1. Note, however, that certain conduct condemned under the Code may not pass muster under the Rules either. One such candidate, in our opinion, is the use in advertising of the word "expert," a word that seems to us potentially nonverifiable and therefore in violation of Rule 7.1. See, under the Code, Bd. of Comm'rs on Grievances & Discipline Op. 2005-6, 2005 Ohio Griev. Discip. LEXIS 6 (Aug. 8, 2005), discussed in section 7.1:220 at "Misleading communication - Nonverifiable claims." (Note further that an amendment to Rule 7.4 cmt. [1], proposed on October 27, 2008, would eliminate the last sentence of the comment, quoted above, which allows use of terms such as “specialist” and “specialty” so long as not false or misleading. If adopted, does this restore the decisions and opinions cited above as good law in Ohio? It would appear so, although we have not found any “legislative history” explaining why the proposed change has been proposed. There is mention of it in the “Court News” portion of the Supreme Court’s website, but it merely restates what the amendment does: it “eliminate[s] language that permits a lawyer to state that he or she is a specialist in a particular field unless the lawyer has been certified as a specialist” and otherwise complies with Rule 7.4(e).)

Historically recognized fields of specialization: Second, the law has traditionally recognized specialties in patent, trademark, and admiralty law, and has allowed lawyers practicing in these areas to hold themselves out as specialists. See Ohio Rule 7.4 cmt. [2]; see also former OH DR 2-105(A)(1). Ohio Rules 7.4(b), (c), and (d) continue this practice by allowing lawyers engaged in patent practice before the United States Patent and Trademark Office to use the designation "Patent Attorney" or a substantially similar designation (division (b)), lawyers engaged in trademark practice to use the designation "Trademarks," "Trademark Attorney," or a substantially similar designation (division (c)), and lawyers engaged in admiralty practice to use "Admiralty," "Proctor in Admiralty," or a substantially similar designation. Division (d).

Certified specialists: Third, pursuant to Rule 7.4(e), a lawyer may "state or imply that the lawyer is certified as a specialist in a particular field of law" (emphasis added) only if the lawyer has been so certified by an organization approved by the Supreme Court Commission on Certification of Attorneys as Specialists (division (e)(1)) the name of the certifying organization is clearly identified in the communication. Division (e)(2).

As stated in Comment [3],

[c]ertification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law.

Rule 7.4 cmt. [3]. The comment goes on to note that certifying organizations are expected to apply standards such that "a lawyer's recognition as a specialist is meaningful and reliable." Id. Identification of the name of the certifying organization is required by Rule 7.2(e)(2) "to ensure that consumers can obtain access to useful information about an organization granting certification." Id.

As a constitutional matter, any blanket ban on a lawyer's communication of his or her certification as a specialist violates the First Amendment. Peel v. Attorney Registration & Discipline Comm'n, 496 U.S. 91 (1990). The degree to which the Constitution permits a state to regulate lawyer claims of specialty certification is unsettled. Peel, 496 U.S. 91 (on variety of issues pertaining to certification, Court split without majority opinion).

Procedure for certification in Ohio: Ohio Rule 7.4(d)(1) recognizes a single path by which lawyers can become certified as specialists and communicate that fact -- certification by an organization approved by the Supreme Court Commission on Certification of Attorneys as Specialists. (While there is no express prohibition against certification by an organization that has not received Commission approval (a path that was recognized under former OH DR 2-105(A)(5)), there is absolutely no reason for any lawyer to take that route under the Rules, since a lawyer can state or imply certification as a specialist only if the certifying organization is one that is approved by the Commission. Rule 7.4(d)(1).) The Ohio Supreme Court created the Commission on Certification and charged it with the responsibility to approve qualifying private organizations that offer specialty certification. Gov Bar R XIV. Lawyers receiving certification from approved organizations may hold themselves out as specialists, but only as Rule 7.4(d) and the Rules for the Government of the Bar allow. Gov Bar R XIV 5(A) provides:

A specialist certified under this rule may communicate the fact that he or she is certified by the certifying agency as a specialist in the field of law involved. A specialist shall not represent, expressly or impliedly, that he or she is certified by the Supreme Court or the Commission or by an entity other than the certifying agency. A specialist may represent that the certifying agency is approved by the Commission, but shall not represent that the certifying agency is approved by the Supreme Court of Ohio.

The Rules for the Government of the Bar make clear that certification is not required to practice in an area of the law, nor are specialists limited to practice in the areas in which they are certified. Gov Bar R XIV 5(B) & (C). Further, certifications in multiple areas of the law are allowed. Gov Bar R XIV 5(D).

In deciding whether to accredit a certifying organization, the Commission applies its Standards for Accreditation of Specialty Certification Programs for Lawyers, (ASCP Stds), which are set forth at Gov Bar R App IV.

Substantial requirements pertaining to the organization's purpose, capabilities, governance, and certification requirements are imposed to help assure that the organization is a bona fide one. ASCP Std 4. To be approved, the organization must adopt lawyer-certification criteria set forth in that Standard. For example, approved certification programs must require "that the time spent practicing the specialty [by the lawyer seeking certification] be at least twenty-five percent of the total practice of a lawyer engaged in a normal full-time practice throughout the three-year period immediately preceding the lawyer's application." ASCP Std 4.02(F). The lawyer also will have to pass a written examination "of suitable length and complexity" that tests "knowledge and skills of the substantive and procedural law in the specialty area." ASCP Std 4.02(H). In addition, the applicant must have completed a minimum of thirty-six hours of continuing legal education in the specialty area in the three years preceding application for certification. ASCP Std 4.02(I). Finally, the standards require that the organization apply its certification requirements uniformly to those seeking certification, as well as implement a nondiscrimination policy. ASCP Std 4.02(D).

As part of its mission, the Commission on Certification is authorized to identify, and recommend to the Ohio Supreme Court for adoption, fields of law subject to specialization designation. Gov Bar R XIV 2(C)(1). Identifying particular areas of law as suitable for specialty designation, together with providing a definition of the practice in each of those areas, standardizes the information provided and thereby protects the public. It assures that if a qualified lawyer properly identifies himself as a specialist in a particular area, there will be a common understanding of what that area entails. Those areas currently approved as fields of law subject to specialization designation, and their definitions, set forth at Gov Bar R App VI, are listed below.

Administrative Agency Law is the practice of law that involves the activities of agencies at the local, state and federal levels, including, but not limited to: licensing, regulation and government benefits. For purposes of this certification, it includes matters involving the Ohio Administrative Procedure Act (RC Chapter 119), local government administrative matters governed by RC Chapter 2506, and proceedings pursuant to the federal Administrative Procedures Act. It also includes, without limitation, the representation of clients before administrative agencies, the practice of law within those agencies, and administrative/judicial proceedings involving those agencies.

Appellate Law deals primarily with practice before state and federal appellate courts. It is distinct from, although complementary to, trial advocacy. Appellate Law emphasizes critical analysis and written advocacy but includes oral advocacy skills as well. This discipline includes consultation regarding the identification and preservation of error at all stages of litigation, and the analysis of public policy goals and constitutional principles in the highest state and federal courts. Appellate Law embraces actions within the original jurisdiction of appellate courts, as well as those matters within the courts' appellate jurisdiction.

Business Bankruptcy Law is the practice of bankruptcy law when the debtor is a corporation, a partnership, an individual currently engaged in business, or an individual formerly engaged in business whose debts are primarily incurred for business purposes; including but not limited to business bankruptcies, reorganizations, liquidations, and the rights, obligations, and remedies of debtors and creditors.

Business, Commercial and Industrial Real Property Law is the practice of law that involves acquisition, ownership, leasing, management, financing, developing, use, transfer and disposition of investment, business, commercial and industrial real property, including title examination and determination of property rights.

Civil Law Trial Advocacy is the practice of law that involves litigation of civil controversies in all areas of substantive law before state courts, federal courts, administrative agencies, and arbitrators. In addition to actual pretrial and trial process, "civil law trial advocacy" includes evaluating, managing, and resolving civil controversies prior to the initiation of suit.

Consumer Bankruptcy Law is the practice of bankruptcy law when the debtor is an individual or husband and wife and where the debts are primarily non-business related. The matters are typically filed under Chapters 7 and 13 of the U.S. Bankruptcy Code. [11 USC §§ 701 et seq. & §§ 1301 et seq.].

Creditors' Rights/Debt Collection is the practice of law that involves all aspects of debt collection under state and federal law as it applies to the rights of creditors.

Criminal Law Trial Advocacy is the practice of law that involves the defense and prosecution of misdemeanor and felony crimes in state and federal trial and appellate courts.

Elder Law is the legal practice of counseling and representing older persons and their representatives about the legal aspects of health and long-term care planning, public benefits, surrogate decision-making, older persons' legal capacity, the conservation, disposition and administration of older persons' estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.

Estate Planning, Trust and Probate Law is the practice of law that involves analysis and planning for the conservation and disposition of estates during lifetime and at death, preparing legal instruments to effectuate such planning, and counseling fiduciaries, while giving due consideration to the applicable trust, probate, income, estate, and gift tax laws.

Family Relations Law is the practice of law that involves counseling clients in the resolution of disputes and with [sic] the termination of marriage by divorce, dissolution or annulment and all related issues, such as legal separation; paternity; child support and the allocation of parental rights and responsibilities; division of property; and spousal support both in alternative dispute resolution processes and in court.

Federal Taxation Law is the practice of law in the areas of individual, partnership, corporate, and fiduciary Federal Income Tax, estate and gift tax, tax-exempt organizations, qualified plans and other federal taxes requiring a substantive and procedural knowledge of the Internal Revenue Code [26 USC] and Regulations, Internal Revenue Service Rulings, and Federal Taxation case law.

Labor and Employment Law is the practice of law that involves the relationships among employers, employees, and their labor organizations, except workers' compensation. It includes all aspects of labor relations (private and public sectors), occupational safety and health, employment discrimination, wage and hour, employee benefits and employment-related torts and contracts. It further includes all forms of labor and employment litigation, arbitration, mediation, negotiation and other forms of alternative dispute resolution before all federal, state and local courts, agencies and private tribunals.

Residential Real Property Law is the practice of law that involves acquisition, ownership, leasing, financing, use, transfer and disposition of residential real property by individuals, including title examination and determination of property rights.

Social Security Disability Law is the practice of law that involves representation of claimants for Social Security disability, survivors’ and retirement benefits. Lawyers in this field routinely represent claimants throughout the administrative hearings and appeals process and into the federal courts.

Workers' Compensation Law in Ohio is the practice of law that involves employees' rights, employers' defenses, and benefits provided for workplace accidents. The procedural scope of Ohio Workers' Compensation practice includes all activities before the Ohio Industrial Commission and Bureau of Workers' Compensation, as well as jury trials and attendant appellate practice.

The fields of law subject to specialization designation (FLS) are also listed on the Ohio Supreme Court website at <http://www.sconet.state.oh.us/certification/definitions/>.

Lawyer referral services: With respect to working through a lawyer referral service, former OH DR 2-105(A)(2) allowed a lawyer to have his name listed in "lawyer referral service" offices from which he or she would accept referrals. The Ohio State Bar Association interpreted the phrase "lawyer referral service" in OH DR 2-105 to refer back to lawyer referral service participation allowed under former OH DR 2-103(D). Ohio State Bar Ass'n Formal Op. 27-A (n.d.).

OH DR 2-105(A)(2) was not carried forward, but there would appear to be nothing in the Rules that would prevent a lawyer from doing that which 2-105(A)(2) allowed. See Rule 7.2(b)(3) and section 7.2:400.

Communications to other lawyers: Former OH DR 2-105(A)(3) provided that a lawyer could communicate to other lawyers his availability to act as a consultant or associate in a particular branch of law or legal service through a dignified announcement of availability distributed to other lawyers or published in legal journals. The Board approved of such a letter in Bd. of Comm'rs on Grievances & Discipline Op. 87-004, 1987 Ohio Griev. Discip. LEXIS 25 (Oct. 16, 1987), with the caveat that the announcement should not contain representations of "any special competence or experience." Id. at *2.

Again, such communications are not referenced in Rule 7.4 but seem compatible with it, other than the limitations in Opinion 87-004 concerning "special competence or experience" and "dignity," which fall by the wayside under the Rules.