Indiana Law Review


Certification of Specialization: Another Limit on Attorney

Advertising is Peeled Away

Specialization is a way of life in our highly complex society. In-

dividuals from carpenters to medical professionals specialize and com-

municate their fields of expertise to the public. The legal profession,

however, has been slow to formally acknowledge its members as "spe-

cialists." In fact, the American Bar Association (ABA) Model Rule of
Professional Conduct 7.4, which has been adopted by over half the

states, specifically forbids attorneys from holding themselves out as

"specialists."^ This prohibition stems from the fear that this type of

advertising may potentially mislead consumers by implying superior qual-
ity services or formal recognition. These fears, however, could be min-

imized by formally certifying lawyers as specialists and providing for

the effective use of specialty advertising to better inform the public of

the availability of legal services.

The United States Supreme Court decision in Peel v. Attorney

Registration and Disciplinary Commission of Illinois^ marks a significant

point of intersection between two lines of developing trends in the legal

profession: attorney advertising and certification of specialization. At

issue in the Peel case was whether the Supreme Court of lUinois acted

consistently with the first amendment^ when it censured an attorney for
stating on his professional letterhead that he was certified as a civil trial

speciaUst by the National Board of Trial Advocacy (NBTA).'^ In a five

to four decision, the Court concluded that "a lawyer has a constitutional

right, under the standards appHcable to commercial speech, to advertise

1. Model Rules of Professional Conduct Rule 7.4 (1989) reads:

A lawyer may communicate the fact that the lawyer does or does not practice
in particular fields of law. A lawyer shall not state or imply that the lawyer
is a specialist except as follows:

(a) a lawyer admitted to engage in patent practice before the United States

Patent and Trademark Office may use the designation "Patent Attorney" or a
substantially similar designation;

(b) a lawyer engaged in Admiralty practice may use the designation "Ad-
miralty," "Proctor in Admiralty" or a substantially similar designation; and

(c) (provisions on designation of specialization of the particular state).

2. 110 S. Ct. 2281 (1990).

3. "Congress shall make no law . . . abridging the freedom of speech, or of the

press. . . ." U.S. Const, amend. I.

4. The letterhead actually appeared as follows:

Gary E. Peel

Certified Civil Trial Specialist

By the National Board of Trial Advocacy Licensed: Illinois, Missouri, Arizona



590 INDIANA LAW REVIEW [Vol. 25:589

his or her certification as a trial specialist by NBTA."^ In the deciding
vote, however, Justice Marshall insisted that this did not preclude reg-

ulation and that each state could choose for itself, within first amendment
constraints, the best regulatory method to protect against potentially

misleading claims.^

The Peel decision recognizes the significance of the NBTA as a
private certification group, removes another limitation on attorney ad-

vertising, and makes it incumbent upon each state to reevaluate its
current regulatory scheme to ensure that it does not run afoul of the

first amendment. The Peel decision also has important implications for

attorneys and consumers. Peel recognizes an attorney's right to specialize

and to communicate that specialty to the community. From the per-
spective of the consumer, the Peel decision means that the public will

be entrusted with more information about lawyers and their expertise

from which to make informed decisions. The quantity and quality of
this new information will depend largely upon which method of regulation

a state adopts.

This Note examines the impact of the Peel decision on states that

place an absolute ban on attorney communication of certified specialties

and suggests alternatives that may be used to regulate advertising of
certification of specialization. Part I reviews the development of specialty

certification within the legal profession and the development of the line

of cases extending the rights of lawyers to advertise. Part II analyzes

the Peel decision and its implications for states that have adopted ABA
Model Rule 7.4 which flatly bans the communication of specialties. Part

III evaluates a continuum of alternatives for regulating the advertisement

of certification of specialization. Part IV concludes that state adoption

of the ABA Model Plan of Specialization^ will provide consumers with
access to legal services, prevent misleading advertising, and promote

competence in the profession within first amendment constraints.

I. Development

A. Certification of Specialization

Quite distinct from the English system of soHcitors and barristers,

American law took the renaissance approach of one lawyer capable of

performing all legal tasks. However, as the law became increasingly

complex, public demand for expertise on the part of the lawyer brought

5. Peel, 110 S. Ct. at 2287-93.

6. Id. at 2296 (Marshall, J., concurring).

7. See ABA Model Plan of Specialization (1979) (reprinted in the Appendix).



1991] CERTIFICATION OF SPECIALIZATION 591

about de facto specialization within the legal profession.^ Throughout

this century, specialization among lawyers has expanded at an increasing
rate. More than eighty years ago, the ABA, in the Canons of Professional
Ethics, recognized and allowed communication of certain

*

'branches of

the profession."^ Throughout the 1950's, the ABA debated the issue of
recognition and regulation of specialties and concluded that the issue

should be handled at the state level, rather than on a national level. '°

The basis for advocating state regulation is that each jurisdiction is in

the best position to regulate its own bar." De facto specialization con-
tinued to proliferate without formal recognition or regulation on state

and national levels.

In 1973, Chief Justice Warren E. Burger advanced the proposition

that '^specialized training and certification of trial advocates is essential

to the American system of justice."'^ The address warned that "lawyers,

like people in other professions, cannot be equally competent for all

tasks in our increasingly complex society and increasingly complex legal

system in particular.'"^ In response to this call, proponents of special-

ization founded the NBTA in 1977.''^ The NBTA developed a rigorous
set of standards and procedures to ensure that certified members possess

the skills and experience necessary to vigorously advocate in the court-

room.^^ Other certification programs developed as lawyers began to

8. N. Rosen, Lawyer Specialization 2 (1990) (quoting 79 ABA Rep. 582, 584
(1954)).

9. Id. at 1-2. Canon 27 provided that lawyers could advertise and include a "law
list" of the "branches of the profession" in which they practiced. Canon 32 allowed

lawyers to be included in a law list if it was not deceptive. Canon 46 provided that
lawyers could notify other lawyers of their availability to act as associates in a particular

branch of the law. Id.

10. Id. at 2.

11. ABA Standing Committee on Specialization, Handbook on Speclu-ization
28 (1983) [hereinafter ABA Handbook].

12. Burger, The Special Skills of Advocacy: Are Specialized Training and Certi-

fication of Advocates Essential to Our System of Justice?, 42 Fordham L. Rev. 227, 229

(1973) (recording the fourth annual John F. Sonnet Memorial Lecture delivered on No-

vember 26, 1973).

13. Id.

14. The groups sponsoring NBTA include the National District Attorneys Asso-
ciation, the Association of Trial Lawyers of America, the International Academy of Trial
Lawyers, the International Society of Barristers, the National Association of Criminal

Defense Lawyers, the National Association of Women Lawyers, and the American Board
of Professional Liability Attorneys. Peel v. Attorney Registration & Disciplinary Comm'n,
110 S. Ct. 2281, 2284 n.3 (1990).

15. Brief for National Board of Trial Advocacy as Amicus Curiae at 9-13, Peel

v. Attorney Registration & Disciplinary Comm'n, 110 S. Ct. 2281 (1990),
The current NBTA requirements are that an appHcant: (1) be a bar member in



592 INDIANA LAW REVIEW [Vol. 25:589

confine their practices and expertise to specialized areas of law.'^

By 1978, four states began experiments in state certification pro-
grams.'^ These programs were voluntary, and the attorneys were not

restricted to practice only in the area of specialization. Florida and New
Mexico took the self-designation approach. •* These plans permitted law-

yers to designate areas in which they practice, but did not guarantee

the expertise of the lawyer.'^ In Florida, this consisted of each attorney

claiming his own specialty, substantiated by three years of practice in
the specialty area, thirty hours of Continuing Legal Education (CLE),

and statements of reference confirming involvement.^" The Florida plan

approved twenty-six fields of practice and allowed an attorney to advertise

up to three areas of practice upon designation. ^^ The emphasis in the

Florida and New Mexico self-designation plans was to inform the public
of attorneys* specialties, rather than to confirm competence.

California and Texas undertook pilot state operated certification

programs designed to assure a certain level of competence through

comprehensive evaluation of qualifications prior to certification. Unlike

self-designation, these plans established state operated specialization pro-

good standing; (2) disclose any misconduct including criminal convictions or

professional discipline; (3) show at least five years of actual practice in civil

trial law during the period immediately preceding application for certification;

(4) show substantial involvement in trial practice, including 30% of professional
time in civil trial Htigation during each of the five years preceding application;

(5) demonstrate experience by appearing as lead counsel in at least 15 complete

trials of civil matters to verdict or judgment, including at least 45 days of trial

and 5 jury trials, and by appearing as lead counsel in 40 additional contested

matters involving the taking of testimony; (6) participate in 45 hours of continuing

legal education in civil trial practice in the 3 years preceding application; (7)

be confidentially reviewed by six attorneys, including two against or with whom
the applicant has tried a civil matter, and a judge before whom the applicant
has appeared within the preceding two years; (8) provide a substantial trial court

memorandum or brief that was submitted to a court in the preceding three
years; and (9) pass a day-long written examination testing both procedural and

substantive law in various areas of civil trial practice.

Peel, 110 S. Ct. at 2285 n.4.

16. The NBTA, in addition to certification for civil trial specialists, developed
certification for the criminal trial specialist. However, certification by other private groups

has not occurred, leaving the NBTA as the only private national group which offers
certification to its members.

17. These states are: California (1971), Florida (1975), New Mexico (1973), and
Texas (1974). Zehnle, Specialization in the Legal Profession: An Analysis of Current
Proposals, in Legal Specialization 22-25 (1976).

18. ABA Handbook, supra note 11, at 12.
19. Id.

20. ABA Standing Committee on Specialization, Specialization in Florida, 3 Spe-
cialization Update 1, 2 (Feb. 1990).

21. ABA Handbook, supra note 11, at 12.



1991] CERTIFICATION OF SPECIALIZATION 593

grams and limited certification exclusively to those specialties. ^^ The

Texas plan required that the attorney have at least five years of full-

time practice, spend at least twenty-five percent of his or her practice

time in the specialty area, provide favorable statements of reference

from attorneys and judges, demonstrate satisfactory participation in CLE,
and pass a comprehensive six hour examination prior to certification.^^

Additionally, these state certification plans required recertification every

five years to assure on-going competence. These plans recognized that

de facto specialization already existed within the legal profession and

that a centralized method of evaluation before certification would not

only assist the public in choosing qualified attorneys, but would also

increase professional competence.

Certification programs proUfcrated in response to the profession's

need to guarantee competence in specialized areas of law and the public's

need for accurate information for decisionmaking. The ABA established
the Standing Committee on Specialization and developed the ABA Model
Plan of Specialization to assist states in establishing certification pro-

grams.^'* By 1986, two states recognized the designation of **Certified
Civil Trial SpeciaUst" by the NBTA and developed procedures for
approving plans from other private certification groups." Gradually,

other states developed or adopted certification programs to protect the

public and promote legal proficiency.^^ Florida and New Mexico rec-
ognized the importance of centralized methods to confirm competence

prior to certification and instituted state operated programs to gradually

replace the earlier efforts in self-designation programs.^^

22. California began certification in the following three areas: (1) criminal law;

(2) workman's compensation; and (3) taxation. Zehnle, supra note 17, at 22. Texas began

certification in three areas: (1) criminal law; (2) family law; and (3) labor law. McNeil,

Specialization in Texas, 1 Specialization Update 1, 2 (Mar. 1989). Since that time,
California has expanded its plan to include family law, immigration and nationality law,

probate, estate planning, and trust law. Texas has expanded its plan to include 13 areas

of certification: administrative law, civil appellate law, civil trial law, consumer bankruptcy

law, criminal law, estate planning and probate law, family law, immigration and nationality

law, labor law, oil, gas and mineral law, personal injury, trial law, tax law, and real

estate law. ABA Standing Committee on Specialization, Status Report on State Special-
ization Plans (Apr. 1991) [hereinafter Status Report] (available from the ABA Standing
Committee on Specialization).

23. McNeil, supra, note 22, at 2.

24. ABA Handbook, supra note 11, at 16.
25. Ex parte Howell, 487 So. 2d 848, 851 (Ala. 1986); In re Johnson, 341 N.W.2d

282, 283 (Minn. 1983).

26. These states are: Arkansas (1982), California (1971), Connecticut (1981), Florida

(1974), Louisiana (1983), New. Jersey (1980), New Mexico (1973), North Carolina (1982),
South Carolina (1981), and Texas (1975). Status Report, supra note 22, at 1-9.

27. Certification programs were adopted in Florida in 1982 and in New Mexico
in 1987. Id. at 2-7.



594 INDIANA LAW REVIEW [Vol. 25:589

Today, certification programs have evolved into two types: state

approval of outside agency certification plans, such as the NBTA, and
state operated certification plans. Four states recognize private certifi-

cation groups and have procedures for approval.^^ Eleven states have

their own certification progranis,^' five of which have adopted plans
based on the ABA Model Plan of Specialization.'^ The remaining states
have no established certification process. Irrespective of formal certifi-

cation plans, the fact remains that specialization is a way of life in the
legal profession. Currently, 206 fields of law, from administrative to

zoning, are recognized and published in a national directory of lawyers

who hold themselves out as specializing or concentrating in specific areas
of practice.'* The time is ripe to recognize specialization and to plan
intelligently for its regulation and use in attorney advertising.

B. Attorney Advertising

Attorney advertising has its point of origin in Bates v. State Bar

of Arizona,^^ which opened the door to allow first amendment protection
of truthful legal advertising. Bates involved two attorneys who truthfully
advertised in a newspaper the availability and terms of routine legal

services. The Supreme Court, relying on an earlier decision, Virginia

State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc,,^^
determined that blanket suppression of attorney advertising "serves to

inhibit the free flow of commercial information and to keep the public

in ignorance. "'"* The Court held that this total ban was violative of the

28. These states are: Alabama, Connecticut, Georgia, and Minnesota. Id. at 1-5.

29. These states are: Arizona, Arkansas, California, Florida, Louisiana, New Jersey,
New Mexico, North Carolina, South Carolina, Texas, and Utah. Id. at 1-10.

30. These states are: Arkansas, New Jersey, New Mexico, North Carolina, and
Utah. Id. at 1-11.

31. Lawyer's Register PuBLisfflNO Co., Lawyer's Register by Specialties and
Fields of Law 2 (9th ed. 1988).

32. 433 U.S. 350 (1977).

33. 425 U.S. 748 (1976). Prior to this case, "the commercial speech doctrine"

excepted professional advertising from protection under the first amendment. Valentine

V. Chrestensen, 316 U.S. 52 (1942). Virginia State Board of Pharmacy dealt with the

issue of whether a pharmacist's advertisement of prices on prescription drugs falls within

the protection of the first amendment. The court determined that commercial speech which

is not misleading is entitled to at least limited protection under the first amendment. This

signaled the beginning of free commercial speech and the demise of the "commercial

speech doctrine." See Note, The Demise of the Commercial Speech Doctrine and the

Regulation of Professional's Advertising: The Virginia Pharmacy Case, 34 Wash. & Lee
L. Rev. 245 (1977).

34. Bates, 433 U.S. at 365.



1991] CERTIFICATION OF SPECIALIZATION 595

first amendment, but carefully pointed out that this did not preclude

other regulation."

Bates established a two-part framework for evaluating attorney ad-

vertising cases. First, the Court scrutinized the advertisement itself to

determine whether the claims were misleading. ** Advertising that is false,

deceptive, or misleading of course is subject to restraint. '*^^ The Bates

Court determined that truthful printed advertising of the price and terms

of routine legal services is not misleading on its face, and thus, is not

subject to blanket suppression.^^ The Court, however, declined to address

claims of quahty, noting that such claims were **not susceptible of precise

measurement or verification and . . . might well be deceptive or mis-

leading to the pubhc.*'^* The second part of the analysis balanced the

state's interests in restricting advertising against the right to the free

flow of commercial speech. ^^ This balancing test runs throughout the

attorney advertising cases. In Bates, the Court upheld the right of the

public to the free flow of information based on first amendment con-
siderations of commercial speech and recognized that attorney advertising

serves a vital societal interest in providing information for informed

decisionmaking."^^ The expansive approach taken by the Bates Court in
applying first amendment protection to attorney advertising began a line
of cases cutting back limits on restricting attorney advertising.

Ohralik v. Ohio State Bar Associatioif^ and its companion case. In

re Primus,*^ drew a distinction between advertising and solicitation.

Advertising in printed media is afforded some first amendment protection,
whereas in-person solicitation for pecuniary gain is so potentially ** over-

reaching" that it warrants prohibition by the state. "^^ The Court reasoned
that the consumer is adequately protected when printed material can be
used or discarded at will.'*^ However, when the attorney solicits in-person,
the consumer is in an unequal bargaining position and requires pro-

35. Id. at 383.

36. Id.

37. Id. at 382.

38. Id. at 366.

39. Id. at 368-79. The State in Bates set forth six major interests: the adverse

effect on professionalism, the inherently misleading nature of attorney advertising, the

adverse effect on the administration of justice, the undesirable economic effects of ad-

vertising, the adverse effect of advertising on the quality of service, and the difficulties

of enforcement. None of these state interests persuaded the Court that an outright ban
was justified.

40. Id. at 364.

41. 436 U.S. 447 (1978).

42. 436 U.S. 412 (1978).

43. Id. at 439.

44. Id. at 435-36.



596 INDIANA LAW REVIEW [Vol. 25:589

tection/' The Primus Court concluded that solicitation by letter on behalf

of a nonprofit, public interest group is not overreaching.*^ In Ohralik,

the Court held that because the attorney's in-person solicitation of an

auto accident victim in the hospital was overreaching and because there

would be great difficulty in regulating in-person solicitation, the state

was justified in prohibiting the conduct.'^^ These cases scrutinized the

advertising media and determined that ** overreaching" forms of com-

munication, such as in-person solicitation, justify a categorical prohibition

by the state.

The Court in In re R.M.J.^^ further refined the two-part analysis
of Bates by considering the misleading aspects of advertising fields of

practice and by applying the four-part analysis set forth in Central

Hudson Gas & Electric Corp. v. Public Service Commission"^^ to weigh
the state interest. The Court first considered whether advertising that

deviates from the state's law list is misleading or deceptive.^^ It determined

that use of nondeceptive terminology to describe fields of practice (e.g.,

"property" instead of **real estate"), is not misleading.^' The Court

based this determination on the fact that the public could easily un-

derstand these terms, but cautioned that claims of quality are not so

easily verifiable and may be **so likely to mislead as to warrant re-
striction."" The Court expanded on the inquiries into the state's jus-

tifiable interest in regulating the speech by asking whether the state's

interest was substantial, whether the restriction advanced the state's

interest, and whether less restrictive means were available to regulate

the speech." The R.M.J. Court concluded that, because deviation from

45. Id.

46. Id. at 439.

47. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 467 (1978).

48. 455 U.S. 191 (1982).

49. 447 U.S. 557 (1980). The exact test was set out as follows:

In commercial speech cases, then, a four part analysis has developed. At

the outset, we must determine whether the expression is protected by the First

Amendment. For commercial speech to come within that provision, it at least

must concern lawful activity and not be misleading. Next, we ask whether the

asserted governmental interest is substantial. If both inquiries yield positive

answers, we must determine whether the regulation directly advances the gov-
ernmental interest asserted, and whether it is not more extensive than is necessary

to serve that interest.

Id. at 566.

50. Id. Missouri Supreme Court Rule 4 provided a list of 23 fields of law which

could be advertised, but deviation from the exact phraseology of the law list was not

permitted. Mo. S. Ct. Rule 4, addendum III (1977).
51. In re R.M.J. , 455 U.S. at 205.

52. Id. at 201 (quoting Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977)).

53. Id. at 203-07.



1991] CERTIFICATION OF SPECIALIZATION 597

the state law list was not misleading and no substantial interest was

promoted by the restriction, the state was not justified in restricting the

advertising.^"* Further, although mailings and handbills are more difficult

to supervise than newspaper advertisements, this did not substantiate the

state's interest in unduly restricting the flow of information.^^ This

decision opened the door to lawyer listing and advertising by field of

law as long as it is not misleading and added the constitutional restriction

that states employ the least restrictive means to protect the public from

misleading or overreaching advertising.

Zauderer v. Office of Disciplinary CounseP^ added targeted news-

paper advertising and the use of illustrations to the permissible types

of advertising and recognized the dangers associated with use of dis-

closures in regulating commercial speech. Zauderer involved the use of

an illustration depicting the dangers of the Dalkon Shield in a newspaper

advertisement to target those injured by the device. The Zauderer Court

determined that targeting persons with specific legal needs {e.g., users

of the Dalkon Shield), is not overreaching when accomplished by news-
paper and the use of truthful illustrations is not misleading.^^ Such advice

serves a useful public service in reaching and informing persons who
may otherwise remain ignorant of their legal rights and of the health
hazards associated with the device.^^ The Court's focus then shifted to
the means of restricting the advertising. The Court analyzed the use of
disclosures as a means of regulation and warned that unduly burdensome

requirements may have a chilling effect on protected commercial speech.^^

The Court reasoned that requiring the disclosures to be "reasonably
related to the State's interest" is sufficient to protect against over-

regulation.^ In allowing truthful targeted newspaper advertising, Zauderer

paved the way for targeted direct mail.
Shapero v. Kentucky Bar Association^^ directly addressed the use of

targeted direct mail and invalidated the distinction between advertising

and printed solicitation. Targeted direct mail was classified as solicitation

and was absolutely prohibited by Kentucky Supreme Court Rule
3.135(5)(b)(i).^2 The Court determined that there was nothing misleading

54. Id. at 205.

55. Id. at 206.

56. 471 U.S. 626 (1985).

57. Id. at 647.

58. Id. at 634.

59. Id. at 662-64.

60. Id. at 651.

61. 486 U.S. 466 (1988).

62. Kentucky Supreme Court Rule 3.135(5)(b)(i) (1988) provided:

A written advertisement may be sent or delivered to an individual addressee



598 INDIANA LAW REVIEW [Vol. 25:589

in the letters and that a printed letter, unlike in-person soHcitation, could

be easily cast away and was, therefore, not overreaching." Because the

speech was not misleading or overreaching, the distinction between so-

licitation and advertising was immaterial.^ Turning to the issue of reg-

ulation, the Court determined that the state could regulate in less restrictive

ways than a total prohibition. Alternatives to total prohibition include

the use of disclaimers identifying the mail as an advertisement or in-

forming the recipient how to report misleading letters. In addition,
disciplinary agencies could screen letters and require verification by the

attorney. ^^ The Court concluded that the free flow of commercial in-

formation justifies the added burden of regulation, rather than an ab-

solute prohibition.^

From this line of cases developed both factual and legal guidelines.
From the factual viewpoint, truthful printed advertising of legal prices,
terms, fields of practice, and illustrations whether by newspaper, flyer,

or letter, is not inherently misleading. Claims of quality, however, are

not easily verifiable or measurable and are potentially misleading. Tar-

geting specific groups or persons in print is not overreaching, whereas

in-person solicitation for pecuniary gain is inherently overreaching because

the trained advocate and the consumer are in unequal bargaining po-

sitions. From a legal perspective, truthful attorney advertising is protected
under the first amendment and cannot be subjected to absolute pro-
hibition. However, because some forms of legal advertising are potentially

only if that addressee is one of a class of persons, other than a family, to

whom it is also sent or delivered at or about the same time, and only if it is
not prompted or precipitated by a specific event or occurrence involving or

relating to the addressee or addressees as distinct from the general public.

Compare the Kentucky rule with ABA Model Rule of Professional Conduct Rule 7.3
(1984):

A lawyer may not solicit professional employment from a prospective client
with whom the lawyer has no family or prior professional relationship, by mail,
in-person or otherwise, when a significant motive for the lawyer's doing so is

the lawyer's pecuniary gain. The term "solicit" includes contact in-person, by

telephone or telegraph, by letter or other writing, or by other communication

directed to a specific recipient, but does not include letters addressed or advertising

circulars distributed generally to persons not known to need legal services of
the kind provided by the lawyer in a particular matter, but who are so situated
that they might in general find such services useful.

Both the Kentucky and ABA rules categorically prohibit targeted direct mail solicitation
by lawyers for pecuniary gain. Neither requires a finding of false or misleading solicitation.

63. Shapero, 486 U.S. at 475-76.

64. See Note, After Shapero v. Kentucky Bar Association: Much Remains Unre-
solved About The Allowable Limits Of Restrictions On Attorney Advertising, 61 U. Colo.
L. Rev. 115, 134 (1990).

65. Shapero, 486 U.S. at 485-86.

66. Id. at 478.



1991] CERTIFICATION OF SPECIALIZATION 599

misleading or overreaching, the state has a justifiable interest in regulating

commercial speech, but regulation must be in furtherance of the state's

interest in protecting consumers and must be accomplished with the least

restrictive means.

II. The Peel Decision

The Peel decision relied on the two-part analysis set forth in earlier

attorney advertising cases to examine the intersection of the attorney

advertising line of cases with the specialty certification line of devel-

opment. The first level of inquiry, whether the advertising is free from
misleading claims to be afforded the protection of the first amendment,

produced three distinct views from the Court. The plurality recognized
the significance of NBTA certification and determined that Peel's **let-
terhead was neither actually nor inherently misleading. "^^ Justice O'Con-

nor concluded in a dissenting opinion that the letterhead was inherently

misleading.^^ Justice Marshall, in his concurring opinion, and Justice

White, in his dissenting opinion, provided a middle ground and deter-

mined that although the letterhead was not actually misleading, it was

potentially misleading. ^^ Considered as a whole, these opinions yield the

conclusion that NBTA certification is to be afforded at least limited
first amendment protection.

The second level of analysis focused on balancing state interests in
preventing misleading claims with the first amendment rights of the
attorney and the public to the free exchange of information regarding

certification of specialty. This analysis produced equally disparate views

from the Court. The plurality determined that the state's interest in
protecting against the possibility of deception does not ** rebut the con-

stitutional presumption favoring disclosure over concealment."^*^ NBTA
certification was verifiable and the attorney and the public had a right

under the first amendment to free commercial speech with regard to
NBTA certification.^' The dissent concluded that states should be allowed
to ban NBTA certification because requiring them to regulate certification
is unduly cumbersome and is not required by the Constitution.^^ Justice
Marshall solved the dilemma by insisting that because the letterhead had

the potential to mislead consumers, states retained the right to regulate.

67. Peel v. Attorney Registration & Disciplinary Comm'n, 110 S. Ct. 2281, 2293
(1990).

68. Id. at 2299 (O'Connor, J., dissenting).

69. Id. at 2293, 2297 (Marshall, J., concurring; White, J., dissenting).

70. Id. at 2293.

71. /rf. at 2288-89.

72. Id. at 2301 (O'Connor J., dissenting).



600 INDIANA LAW REVIEW [Vol. 25:589

but not absolutely prohibit, communication of NBTA certification.^^
Realizing that the decision in the case would have implications on

advertising, certification, and state regulation, the Court carefully scru-

tinized the role of certification and state regulation in preventing mis-

leading claims.

A, Advertising and Specialty Certification

The implications of the Peel decision are yet to be felt. Viewed
from the advertising perspective, the decision extends the Bates line of

cases by adding specialty certification to the list of permissible types of

attorney advertising. The effect of the Bates decision on legal advertising
provides a basis to conclude that the Peel decision will not open the

floodgates of certification advertising. After Bates, the legal profession

proceeded cautiously in its use of advertising. In fact, **3 percent of

lawyers advertised in 1978, 13 percent in 1984, 24 percent in 1985, and

in 1986, 32 percent. **^^ Advertising of specialty certification is likely to

take a similar course as attorneys test the waters to determine what

each state will allow and what significance the public attaches to cer-

tification of specialized fields of practice.

From the certification viewpoint. Peel recognizes both the benefits
and dangers associated with communication of certification. The plurality
recognized the benefits of NBTA certification and the importance of
encouraging specialty certification programs.^^ It noted that NBTA cer-
tification as a trial specialist requires strict adherence to **objective and

demanding" standards and procedures developed and approved by leading

legal authorities, including judges, scholars, and practitioners.^^ The Court
noted that "a certification of specialty by NBTA would indicate a level
of expertise with regard to trial advocacy in excess of the level of

expertise required for admission to the bar generally. "^^ The Court further
acknowledged that truthful disclosure of NBTA certification "serves the
public interest and encourages the development and utilization of mer-

itorious certification programs for attorneys. **^^ In recognizing the positive

values of this private certification group, the Court provided each state

with a model program for ensuring professional competence and providing

the public with accurate information on legal specialization.

73. Id. at 2296 (Marshall J., concurring).

74. Sawaya, Willy Loman Joins the Bar, 76 A.B.A. J. 88 (Oct. 1990).
75. Peel v. Attorney Registration & Disciplinary Comm'n, 110 S. Ct. 2281, 2284-

85 (1990).

76. Id.

11. Id. at 2285 (quoting Ex parte Howell, 487 So. 2d 848, 851 (Ala. 1986)).
78. Id. at 2293.



1991] CERTIFICATION OF SPECIALIZATION 601

Although the plurality concluded that NBTA certification was ver-
ifiable and consumers should be free to infer for themselves the degree

of quality that flows from an evaluation of NBTA requirements/' the
Court recognized that states have an interest in protecting the public

from hollow claims by bogus certification groups.^ Both the concurring

and dissenting opinions expressed concerns over the dangers of misleading

the public through recognition of NBTA certification and the implied
quality claims that the public may attach to such certification.®'

Both the dissenting and concurring opinions hypothesized that with-

out formal state recognition, advertising certification by the NBTA could
be misconstrued by consumers to be certification by the government.

This potentially misleading information could be derived in two ways.

First, because the certification was from the '^National** Board of Trial

Advocacy, consumers could believe that the designation was from a

federal program.^^ Second, because all states license attorneys and some

states certify attorneys, the public could be misled into the belief that

all certification programs are recognized by the state. ^^ In response, the

plurality maintained that the public knows the difference between state

**licensing'* and private ^'certification.*'^'* The entire Court, however,

based this line of reasoning on tenuous interpretations of dictionary

meanings and not empirical studies of the public's perception of the

terms "national," **license," and ^'certification." Assuming, arguendo

y

that the public may be misled by NBTA certification. Justice Marshall
correctly noted that the problem of distinguishing between government

and private certification may be easily cured through the use of a
disclaimer.*^

Not so easily dispelled by mere use of a disclaimer is the concern

that designation as a **speciaUst" might mislead consumers through

implied claims of quality. Although advertising of certification as a

speciaUst does not itself make a claim of quality, it naturally implies
superior services. ABA studies, relied on by the entire Court, have shown
that the pubhc believes that the term * 'specialist" implies better services.*^

Because certification as a specialist implies superior skills, certifying

79. Id. at 2288.

80. Id. at 2292.

81. Id. at 2293 (Marshall J., concurring); id. at 2297 (White J., dissenting); id.

at 2298 (O'Connor J., dissenting).

82. Id. at 2294 (Marshall J., concurring).

83. Id. at 2300 (O'Connor J., dissenting).

84. Id. at 2289.

85. Id. at 2296 (Marshall, J., concurring).

86. ABA Standing Committee on Specialization, A Survey on How the Public
Perceives a Specialist, Information Bulletin #10 (1988).



602 INDIANA LAW REVIEW [Vol. 25:589

groups requiring little more than mere payment of fees present the danger
of misleading the public into the belief that the specialist has achieved

an adequate level of competence. Because the public perception of a

specialist is one with superior expertise, it is imperative that states regulate

the advertising of certified specialists in a manner that adequately informs

the public of the specialized skills attained through certification.^''

The Peel decision tactfully evades an outright endorsement of cer-

tification programs as a means of preventing misleading claims while

remaining within first amendment confines. It does, however, recognize
the benefits of NBTA certification. The Court noted that state screening
of certification programs may minimize the dangers associated with
specialization advertising and that many states already recognize certi-
fication programs and allow attorneys to advertise their certification to

the public.^^ This recognition and the decision to allow communication

of specialty certification may provide the impetus for other legal specialty
organizations to develop programs to certify their members. Peel opens

the door to formal recognition of specialty certification, adds certification

to the list of advertising forms which are not inherently misleading, and

suggests alternative schemes of state regulation to prevent potentially

misleading claims of certification.

B. State Regulation

The Peel decision compels each state to reevaluate its current reg-
ulatory scheme and decide for itself the least restrictive method of

regulating the advertisement of certification of specialization. The plu-

rality favored state recognition of bona fide certification programs and

suggested that this could be accomplished through screening private

certification groups.*^ The dissent, however, opposed this method because
it is unduly burdensome and not required by the Constitution.^ The

plurality mediated these positions by suggesting that an alternative to

state sanctioning of certification programs is to require the advertising

to carry a disclaimer or disclosure.^' This latter view recognizes the states'

role in regulating their own bars and the political and constitutional
ramifications of requiring states to adopt certification programs. Which-

ever method the state chooses, it should be mindful that the Court

favors disclosure over concealment.

87. Peel v. Attorney Registration & Disciplinary Comm'n, 110 S. Ct. 2281, 2295-
96 (1990) (Marshall, J., concurring).

88. Id. at 2288 & n.ll.
89. Id. at 2293.

90. Id. at 2301 (O'Connor, J., dissenting).

91. Id. at 2292.



1991] CERTIFICATION OF SPECIALIZATION 603

The policy of favoring disclosure over concealment finds support in

two negative inferences. First, the converse policy of favoring concealment

of information from the consumer presupposes that the public is in-

herently ignorant .'2 The dissent surmised that **the public lacks sophis-
tication concerning legal services. *'^^ The plurality opinion chose instead
to **reject the paternalistic assumption that the recipients of [the] pe-

titioner's letterhead [were] no more discriminating than the audience for
children's television."^ This analogy by the plurality may be overly
general because, in legal advertising, both the audience and the product

are more sophisticated than children's television advertising. However,
the plurality view correctly elevates the consumer of legal services to a

level of knowledge consistent with today's informed society. Second, the

plurality recognized that use of an absolute prohibition to ban com-

munication of NBTA certification is undermined by the ad hoc approach
of excepting certain specialties such as ** Registered Patent Attorney"

and "Proctor in Admiralty," which pose the same risk of deception.^'

If the concern is for the consumer, the policy of favoring disclosure

over concealment provides more information on which to make decisions.
Thus, regulation, not prohibition, best serves the pubUc.

Currently, twenty-seven states and the District of Columbia ban

lawyer certification advertising and will be directly affected by the Peel

decision.^ Most of these states have modeled their rules dealing with
advertising of certified specialty after the ABA Model Rule of Profes-
sional Conduct 7.4 which prohibits a lawyer from stating or implying

that the lawyer is a specialist except for patent, trademark, or admiralty.'^

Peel suggests that this group of states relax the outright ban and im-

plement alternative regulatory schemes to guard against the possibility

of misleading the public into believing that the designation of certified

specialist implies superior services or that the state has certified the

lawyer as a specialist. The Peel decision requires all states with rules
modeled after ABA Rule 7.4 or its predecessor DR 2-105,^* to modify

92. Id. at 2290 n.l3.

93. Id. at 2300 (O'Connor, J., dissenting) (quoting Bates v. State Bar of Arizona,

433 U.S. 350, 383 (1977)).

94. Id. at 2290.

95. Id. at 2291.

96. These states are: Alaska, Colorado, Delaware, Hawaii, Idaho, Illinois, Indiana,

Iowa, Kentucky, Maine, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, Nevada,

New Hampshire, New York, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee,
Vermont, Virginia, Washington, West Virginia, and Wisconsin. Gibbons, The Right to

Specialize, 76 A.B.A. J. 56, .59 (May 1990).
97. See supra note 1.

98. Model Code of Professional Responsibility Disciplinary Rule 2-105 (1977) pro-



604 INDIANA LAW REVIEW [Vol. 25:589

their rules to regulate, rather than prohibit, advertising of certification

of specialization.

The Peel decision indirectly affects the remaining states by forcing

them to evaluate their current regulations on advertising of certification

of specialization. The eleven states that maintain certification plans will

need to determine whether to recognize private certification programs.

Failure to recognize these programs could sound the death knell for

private certifying groups by decreasing the incentive for affiliation. This

is a counterproductive result because these groups supply **powerful

professional and economic incentives to increase competence'*^ and pro-

vide a uniform national standard. The seven states with no ban on

advertising of certification of specialization need to consider the advan-

tages offered by certification programs in assuring minimum levels of
competence of members of the bar.*^ Least affected by the decision are

the four states which already have systems to approve private specialty

certification programs. '°' Although the Peel decision affects states in

varying degrees, the Court's positive recognition of NBTA certification
deserves evaluation by each state.

III. Regulating Certified Specialist Advertising

A. Method of Evaluation

In contemplating which method of regulation to adopt, states should

first consider the goals of regulating specialty certification advertising.

vides:

(A) A lawyer shall not hold himself out publicly as a specialist, as practicing
in certain areas of the law or as limiting his practice . . . except as follows:

(1) A lawyer admitted to practice before the United States Patent and
Trademark Office may use the designation "Patents," "Patent Attorney," "Pat-
ent Lawyer," or "Registered Patent Attorney" or any combination of those

terms, on his letterhead and office sign.

(2) A lawyer who publicly discloses fields of law in which the lawyer . . .
practices or states his practice is limited to one or more fields of law shall do

so by using designations and definitions authorized and approved by the [agency

having jurisdiction of the subject under state law].

(3) A lawyer who is certified as a specialist in a particular field of law or
law practice by [the authority having jurisdiction under state law over the subject

of specialization by lawyers] may hold himself out as such, but only in accordance
with the rules prescribed by that authority.

99. Peel v. Attorney Registration & Disciplinary Comm'n, 110 S. Ct. 2281, 2284
n.2 (1990) (quoting Brief for Academy of Certified Trial Lawyers of Minnesota as Amicus
Curiae at 15).

100. These states are: Kansas, Michigan, Montana, North Dakota, Oklahoma, Rhode
Island, and Wyoming. Gibbons, supra note 96, at 59.

101. See supra note 28 and accompanying text.



1991] CERTIFICATION OF SPECIALIZATION 605

Analysis of earlier cases in attorney advertising provides three areas of

concern which translate into the overall objectives of regulation. Reg-

ulation should seek to assist in the free flow of information to the

public, to ensure that the information is not misleading, and to promote

quality and competence in the legal profession. States should seek to

integrate these objectives with the results of the following internal analysis

in selecting the appropriate regulatory scheme.

Each state should perform an internal analysis to determine the

current status of the legal profession within the state. This self-analysis

should consider factors such as the population of the state relative to

the number of lawyers available, the interest level of lawyers in partic-

ipating in specialty certification programs, the fields of specialization to

be implemented, ethical considerations, and the cost of developing and

administering the program.

In states where the population is spread out, the practice of law is

more general and the need for specialization and certification programs

decreases. Conversely, states which have heavy concentrations of lawyers

specializing in narrow practices should consider certification programs

a high priority. States with considerable numbers of de facto specialists

should find a high interest level in many certification programs. All
states should consider the more prevalent ethical considerations: the duty

to determine the degree of competence which will ensure that the public

is not misled, the duty to provide the public with access to legal services,

the duty to guarantee the general practitioner that specialization will not

adversely affect the profession, and the duty not to create entry barriers

for young and minority lawyers. Finally, the cost of administration in

most programs may be offset through fees so that most plans are able
to achieve self-sufficiency. Not every state is ripe for the regulation of

specialization, and performing an internal analysis should provide each

state with guidance in choosing the best method of regulation. Because

each state will have a unique set of parameters to operate within, this

Note necessarily focuses on analyzing each alternative in relation to the

overall objectives of regulation.

B. Alternative Regulatory Schemes

A spectrum of alternatives exists for regulating attorney advertising
of certification of speciahzation. On one extreme is the path of least
resistance: the state merely requires that the advertising be truthful and

allows the free market to regulate itself. On the other extreme is a
national certification program such as the **Registered Patent Attorney'*

designation in which the federal government certifies practitioners. In

between are disclaimers, disclosures, state recognition of private certi-

fication programs, state operated certification programs, the ABA Model



606 INDIANA LAW REVIEW [Vol. 25:589

Plan of Specialization, and combinations of these. Each alternative has

advantages and disadvantages that should be carefully considered by

each state.

Free market regulation, the least restrictive option, allows attorneys

to advertise their specialty and certification as long as it is not mis-

leading. '^^ The seven states that do not ban specialty advertising rely on
the free market forces of supply, demand, and competition to regulate

specialty advertising. Lawyers, free to communicate and speciaHze along

any parameters they may choose, provide consumers with maximum
information on the availability of legal services. '°^ Consumer demand
for certain expertise encourages the development of specialties and pro-

vides efficient allocation of legal resources. Competition among lawyers
encourages efficiency within the profession which arguably lowers costs

to the consumer. ^^ This scheme increases the free flow of useful in-

formation to consumers because communication is not limited to state

approved specialties. Free market regulation is the most efficient means

of allocating legal resources and the absence of state regulation means
that the taxpayer is not burdened with the costs of program adminis-

tration.

Although the absence of a ban on advertising certification and

speciahzation increases the free flow of information at no cost to the

taxpayer, it does little to protect the consumer against potentially mis-

leading claims or to assure attorney competence. The absence of a
regulating body to screen specialty and certification claims may result
in consumers receiving information that is potentially misleading. Con-

sumers are free to employ the judicial system to redress deceptive claims,

but this course is pursued after the injury and results in the judicial

inefficiency of case by case review. The system does not provide any
measurable way to ensure professional competence other than through
competition. This regulatory alternative trades off the goals of ensuring

attorney competence and protecting the consumer against potentially

102. An example of this type of scheme is found in Michigan Bar, Formal Opinion
C-232 (November 1984): "A lawyer may advertise that he or she is a 'specialist' in a
specific field of practice only under certain circumstances, depending on whether use of

the term is misleading. ..."

103. L. LoPucKi, The De Facto Pattern of Lawyer Specialization 11-12 (1990)
(suggesting that lawyers specialize along at least eight parameters: body of knowledge,

type of client, side, operation, forum, geographical area, size of the matter, and relation

to team).

104. See, e.g.. Hazard, Pearce, & Stempel, Why Lawyers Should Be Allowed to
Advertise: A Market Analysis ofLegal Services, 58 N.Y.U. L. Rev. 1084 (1983); McChesney,
Commercial Speech in the Professions: The Supreme Court's Unanswered Questions and

Questionable Answers, 134 U. Pa. L. Rev. 45 (1985).



1991] CERTIFICATION OF SPECIALIZATION 607

misleading advertising for maximum flow of information and minimum
administration costs.

The Peel Court suggested that disclaimers or disclosures could be

used as an alternative method to regulate communication of specialty

certification. ^°^ A disclaimer will inform the consumer that the certifi-
cation was not by any government agency. A disclosure will also provide
the consumer with the requirements for certification. Either method

permits the free flow of information and attempts to prevent the pres-

entation of misleading claims by informing the pubhc of the nature of

the certification.

The ABA modification of Rule 7.3 in response to Shapero illustrates
a workable use of a disclaimer requiring targeted direct mail to be labeled

as **Advertising Material" to inform the consumer of the nature of the

letter.'^ The problem with disclaimers and disclosures is that an unduly

burdensome requirement may do indirectly what the state cannot do
directly: prohibit the communication of certification. ^^'^ For example,

requiring a complete list of certification requirements on a business card

virtually prohibits the communication of certification by that media;

therefore, states must be careful not to overburden disclaimer require-

ments when little guidance exists on content or length of disclosures or
disclaimers. ^°^ A more pragmatic problem exists when the same disclaimer
appears in every attorney advertisement.*^ Because the disclaimer is so

common, the consumer becomes oblivious to the message and conse-
quently it is of little or no value.

This disclaimer/disclosure alternative, like market regulation, misses

the objective of assuring quality in the profession because it does not

impose additional requirements or minimum standards of competence.
'*Any advertising scheme which does not provide for the quality concept

will constantly be confronted with the problem of deceptive advertising

and overreaching under the code of professional responsibility. "*'° The

disclaimer/disclosure method is, however, a minimum cost, minimum
implementation program that fulfills the first amendment requirements
of Peel. Illinois used this alternative as a band-aid response to the Peel

105. Peel V. Attorney Registration & Disciplinary Comm'n, 110 S. Ct. 2281, 2292
(1990).

106. 83 Law Man. on Prof. Conduct (ABA/BNA) § 81:402 (1989).
107. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985).

108. This may well be the next area the courts will be called on to address. Stewart,
The Rights of Lawyers 76 A.B.A. J. 34, 38 (Aug. 1990).

109. A good example is the yellow page directory of Louisville, Kentucky where
each attorney advertisement carries the disclaimer, "This is an advertisement. Kentucky

law does not certify specialists."

110. Staton, Access to Legal Services Through Advertising and Specialization, 53

IND. L.J. 247, 251 (1978).



608 INDIANA LAW REVIEW [Vol. 25:589

decision while continuing to study certification of specialization alter-

natives.

Only specialty certification programs address quality and are capable

of achieving the objective of ensuring attorney competence. These cer-

tification programs come in two varieties: state approved private cer-
tification plans and state operated certification programs. Proponents of

specialization urge states to adopt either plan based on the following

reasons: (1) de facto specialization exists today and should be recognized;

(2) the recognition of specialists will enhance legal competence in a

particular field; (3) consumers will have more access to information; (4)
specialization will lead to reduced costs for legal services; and (5) failure

to recognize specialties impHes that lawyers are competent in all fields.'"

Opponents are concerned that: (1) certification may adversely effect non-
certified lawyers; (2) voluntary programs may become mandatory; (3)
certification programs may favor large established urban firms; and (4)
existing programs bear little relation to the de facto pattern of spe-

cialization in the legal profession. ''^ Both state approved and state op-

erated programs guarantee adherence to standardized requirements designed

to provide a recognized level of expertise. The programs are voluntary
and do not prohibit noncertified attorneys from practicing in specialty

areas or prevent certified specialists from practicing outside their area

of expertise."^

State operated certification programs directly screen attorneys in order

to ensure expertise. In 1971, Cahfornia initiated its certification program

which requires five years in the practice of law, a percentage of time

in the specialty, continuing legal education, peer review, and successful

completion of a written examination. ""* Currently, California recognizes

six areas of specialization,''^ and eleven states operate similar programs."*^

One criticism of these plans is that communication of certification is
limited to state certification. Although this protects the consumer against

misleading advertising, it Hmits the free flow of consumer information

to those specialties recognized by the state. The programs do, however,
promote competence in the profession by imposing initial requirements,

recertification, and continuing legal education programs. Because the

111. Comment, Lawyer Advertising and Specialization In Montana: An Alternative
Approach, 43 Mont. L. Rev. 131, 141 (1982).

112. L. LoPucKi, supra note 103, at 1-2.

113. Zehnle, supra note 17, at 21.

114. Id. at 22. See also, ABA Handbook, supra note 11, at 14.
115. These areas are: criminal law, family law, immigration and nationality law,

probate estate planning and trust law, taxation law, and workers' compensation law. Status

Report, supra note 22, at 1.

116. See supra note 32.



1991] CERTIFICATION OF SPECIALIZATION 609

state administers the program, the costs of the program are higher than

other regulatory methods. Most state certification programs, however,
provide for financing through fees charged to applicants.''^ State operated

programs prevent misleading information and assure competence at the

cost of state administered programs and limited communication of spe-

cialization.

State approval of private certification programs appears to be a

viable alternative in view of the Supreme Court's recognition that NBTA
certification was indeed truthful advertising. Minnesota is one of the

four states that has adopted a plan for approval of certifying agencies."*

The plan closely approximates that of the NBTA and requires, inter
alia, a minimum of twenty-five percent of total time devoted to the
specialty in the prior three years, peer evaluation, and successful com-

pletion of an objective written or oral examination.''^ Screening certifying

117. For example, California Rules of Court, Rules and Regulations of the State

Bar of California Program for Certifying Legal Specialists § 11(D)(1) (1991) which provides:

The fee to apply for certification and recertification shall be set by the

board. Payment shall be required as a condition to the fihng of the application.

If the applicant for recertification chooses to take the written examination, the

application fee shall be the same as the fee for certification.

118. Minn. Rules of Court, Plan for Minnesota State Board of Legal Cer-
TfflCATION (1990).

1 19. Minnesota Rules of Court, Plan for Minnesota State Board of Legal Certification

Rule 5 (1991) in its entirety reads:

5.01 The persons in a certifying agency shall include lawyers who, in the

judgment of the Board, are experts in the area of the law covered by the

specialty and who each have extensive practice or involvement in the specialty
area.

5.02 A certifying agency's standards for certification of specialists must
include, as a minimum, the standards required for certification set out in this

Plan and in the rules, regulations, and standards adopted by the Board from

time to time. Such standards shall not unlawfully discriminate against any lawyer

properly qualified for certification as a specialist, but shall provide a reasonable

basis for the determination that the lawyer possesses special competence in a

particular field of law, as demonstrated by the following means:

5.021 Substantial involvement in the specialty area during the three-year

period immediately preceding appHcation to the certifying agency. "Substantial

involvement" is measured by the amount of time spent practicing in the specialty

area: A minimum of 25% of the practice of the lawyer must be spent in the
specialty area.

5.022 Peer recommendations from attorneys or judges who are familiar
with the competence of the lawyer, none of whom are related to, or engaged
in legal practice with, the lawyer.

5.023 Objective evaluation of the lawyer's knowledge of the substantive

and procedural law ih the specialty area, to be determined by written and/or

oral examination. The examination shall include a part devoted to professional

responsibility and ethics as it relates to the particular specialty.



610 INDIANA LAW REVIEW [Vol. 25:589

organizations ensures that certified specialists will maintain a predeter-

mined level of competence, and by providing that only approved specialty

certification may be advertised, the state protects the public from mis-
leading certification claims. The problem with this alternative is that

with the exception of the NBTA, no national specialization groups have
responded to the needs of the profession for specialty certification.

The ABA Model Plan of Specialization provides a workable plan
for states wishing to embark on specialization programs. This plan, once

adopted, is administered by the state. Each state is free to adopt the

entire plan or only applicable parts. This alternative provides more free

flow of information than pure state developed and operated certification

programs and serves the public in at least four ways. First, as a national

organization, the ABA can respond to the need for new specialty pro-
grams more effectively and efficiently than a single state operated pro-

gram. The current ABA Model Plan of Specialization recognizes twenty-
four areas of specialization. '^^ This is more than any one state currently

offers, and each state is free to choose which specialty areas are ap-

propriate. This provides consumers with a greater variety of information

on available legal services by certifying and allowing more specialists to
advertise. Second, state certification using the ABA model plan is ver-
ifiable by the consumer; therefore, advertising by state certified specialists

will not be misleading. Third, adoption of the ABA model plan provides
uniform levels of competency among the states adopting the plan. This
facilitates multijurisdictional referrals by assuring that specialists have a

5.03 The certifying agency shall be responsible for making appropriate

investigations of peer recommendations and for the obtaining of any other data

that may be required to assure the lawyer is in compliance with the legal
certification program.

5.04 The certifying agency shall register all lawyers whom it certifies as
specialists pursuant to the Plan and shall report to the Board those lawyers

who are certified, maintaining, however, the confidentiality of information on
applicants as required by law.

5.05 Each certifying agency shall annually submit to the Board a report

of its activities during the previous year, including a demonstration of the

measures employed to ensure compliance with the provisions of this rule.

5.06 The certifying agency shall cooperate at all times with the Board and

perform such other duties as may be required by the Board so that the Plan
is properly administered.

120. These areas are: admiralty, appellate practice, bankruptcy, business and cor-

porate, civil rights, civil trial practice, collection, commercial, criminal, estate planning

and probate, family, governmental contracts and claims, immigration, insurance, inter-

national, labor and employment, military administrative, patent, trademark and copyright,

personal injury and property damage, real property, securities, taxation, workers' com-

pensation, and franchise law. ABA Standing Committee on Specialization, Model
Standards for Specialty Areas (1990).



1991] CERTIFICATION OF SPECIALIZATION 611

uniform minimum level of competency. Finally, because the preliminary
study and plan development is already completed, states avoid many
administrative costs, leaving more funds in the private sector to stimulate

the economy. The problem with this plan is that it does not provide

for recognition or screening of private certification groups such as the

NTBA. In light of Peel, provisions need to be incorporated to regulate
rather than prohibit advertising of NBTA certification. With this ex-
ception, this alternative combines the best features of free market reg-

ulation with those of private and state certification to meet the goals

of regulation: to provide consumer access to legal information, to prevent

misleading advertising, ensure attorney competence, and to avoid hefty

administrative costs.

National certification plans, such as the ** Patent Attorney" or ** Proc-

tor in Admiralty" designations approach the extreme limits of regulation.

Although every state recognizes and allows these specialties to advertise,

the federal government is not likely to create more areas of specialization

to keep up with consumer demand. National certification does not present

a viable option in view of the Peel decision. The Court left each state,

not the federal government, to regulate its own bar with respect to
attorney advertising and certification. States must evaluate the various

options for regulating attorney advertising of certification of specialization

with a keen awareness of first amendment rights and the overall goals
of regulation.

IV. Conclusion

SpeciaHzation, whether de facto, self-designated, or certified, is a

way of life in the legal profession. Certification serves a vital societal
interest by recognizing specialists and confirming that they possess the

required skills for the specialty. Extending the line of attorney advertising

cases favoring disclosure over concealment. Peel recognizes an attorney's

right to specialize and communicate certification as a specialist so long

as it is not misleading. To prevent misleading claims of certification,
each state is free to choose the most appropriate method of regulation,

but absolute prohibitions on advertising of certification violate the first

amendment. Examining Peel and the Bates line of cases reveals recurring

concerns that may be translated into objectives for regulation of cer-
tification advertising. The goals of regulation should be to provide the
consumer with access to legal information, prevent misleading advertising,

and ensure professional competence while remaining within the first

amendment.

Examining the alternative regulatory schemes in relation to these

objectives reveals the advantages and disadvantages of each. Free market

regulation offers the greatest exchange of information and the most



612 INDIANA LAW REVIEW [Vol. 25:589

efficient allocation of legal resources by permitting advertising of any

specialty as long as it is not misleading. Disclaimers and disclosures

provide the consumer with information on the nature of certification

and thereby prevent misleading advertising. These alternatives meet the

objectives of providing access to legal services, but fall short of the

objective of ensuring professional competence.

Only certification plans meet all the objectives set forth for regulating

advertising. States that operate certification plans regulate by screening

attorneys directly while states that approve private certification groups

regulate by assuring that certifying agencies adequately screen members.

These plans ensure professional quality by demanding adherence to

predesignated levels of competence before advertising of certification is

permitted. State certification plans meet the objectives of regulation, but

suffer from the disadvantage of restricting specialization advertising ex-

clusively to state developed programs. State approval of private certi-

fication groups not only meets the objectives of regulation, but provides

for advertising of NBTA certification. The problem here is that private
national groups have been slow to respond to consumer demand.

The ABA Model Plan of Specialization is unequivocally the most
workable plan available today. It combines the best features of free

market regulation and private and state operated certification programs.

As a national organization, it can develop certification programs in
response to a greater number of market forces. This lessens the burden
on each state to anticipate new specialty certification areas and avoids
hefty development costs. It does not, however, provide for recognition

of private certification groups which should be addressed either by the

ABA within its plan or by each state adopting the current ABA plan.
Although Peel does not recommend any one regulatory scheme, it compels
states to make provisions other than an outright ban to allow com-
munication of specialty certification. Given the expansive trend in attorney

advertising and the Court's recognition of certification programs, states

would be well advised to begin planning for the use of certification

programs in their regulatory schemes.

John A. Payton*

* A.S., 1984, Univ. of Hawaii; B.S., 1987, Embry-Riddle Aeronautical Univ.;

M.B.A., 1990, Indiana Wesleyan Univ.; J.D. Candidate, 1992, Indiana University-Indi-

anapolis.



1991] CERTIFICATION OF SPECIALIZATION 613

APPENDIX

AMERICAN BAR ASSOCIATION
MODEL PLAN OF SPECIALIZATION

The following Model Plan of Specialization was proposed by the ABA
Standing Committee on Specialization and was adopted by the House of
Delegates on August 15, 1979.

U Purpose

The purpose of this Plan of Specialization ("Plan") is to assist in the
delivery of legal services to the public by:

1.1 Providing greater access by the public to appropriate legal

services;

1.2 Identifying and improving the quality and competence of legal
services; and

1.3 Providing appropriate legal services at reasonable cost.

2. Establishment of Board of Legal Specialization

The Supreme Court hereby establishes a Board of Legal
Specialization ("Board"), which Board shall be the authority having
jurisdiction under state law over the subject of specialization of
lawyers. The Board shall be composed of nine members appointed by the
Supreme Court. One of the members of the Board shall be the
chairperson of the Advisory Commission (described in Section 7) and all
other members of the Board shall be lawyers licensed and currently in
good standing to practice law in this state. The lawyer members of the
Board shall be representative of the legal profession and shall include
lawyers who are in general practice as well as those who specialize. One
of the lawyer members shall be designated annually by the Supreme
Court as chairperson of the Board. The lawyer members of the Board
shall hold office for three years, except those initially appointed who
shall serve as hereinafter designated. The lawyer members shall be
appointed by the Supreme Court to staggered terms of office and the
initial appointees shall serve as follows: two shall serve for one year
after appointment; three shall serve two years after appointment; and
three shall serve for three years after appointment. Appointment to a
vacancy among the lawyer members shall be made by the Supreme Court
for the remaining term of that lawyer member leaving the Board. Any
lawyer member shall be eligible for reappointment to not more than one
additional three-year term after having served one full three-year term.

Meetings of the Board shall be held at regular intervals, at such
times and places and upon such notice as the Board may from time to
time prescribe.

* Reprinted with the permission of the American Bar Association.



614 INDIANA LAW REVIEW [Vol. 25:589

3. Powers and Duties of the Board

The Board shell heve general jurisdiction of ell matters perteining to
regulation of specialization and recognition of specialists in the practice

of law and shell have the power and duty:
3.1 To administer the Flan;
3.2 To designate specialties of law practice and define the scope

and limits of such specialties and to provide procedures for the
achievement of these purposes;

3.3 To appoint, supervise, act on the recommendations of and
consult with Specialty Committees as hereinafter identified;

3.4 To consult with the Advisory Commission as hereinafter
identified;

3.5 To make and publish standards for the recognition of specialists,
upon the Board's own initiative or upon consideration of
recommendations made by the Specialty Committees, such standards to
be designed to produce a uniform level of competence among the various
specialties in accordance with the nature of the specialties;

3.6 To recognize specialists or deny, suspend or revoke the
recognition of specialists upon the Board's own initiative, upon
recommendations made by the Specialty Committees or upon requests
for review of recommendations made by the Specialty Committees;

3.7 To establish and publish procedures, rules, regulations and
bylaws to implement this Plan;

3.8 To propose, and request the Supreme Court to make,
amendments to this Plan whenever appropriate;

3.9 To cooperate with other boards or agencies in enforcing
standards of professional conduct and to report apparent violations of

the Code of Professional Responsibility of this state to the appropriate
disciplinary authority;

3.10 To evaluate and approve, or disapprove, any and all continuing
legal education courses, or educational alternatives for the purpose of
meeting the continuing legal education requirements established by the
Board for the recognition of specialists and in connection therewith to
determine the specialties for which credit shall be given and the number
of hours of credit to be given in cooperation with the authority having

jurisdiction over continuing legal education; to determine whether end
what credit is to be allowed for educational alternatives, including other
methods of legal education, teaching, writing and the like; to issue rules
and regulations for obtaining approval of continuing legal education
courses and educational alternatives; to publish or cooperate with others
in publishing current lists of approved continuing legal education courses

and educational alternative^ and to encourage and assist law schools,
the authority having jurisdiction over continuing legal education, local
bar associations and other groups engaged in continuing legal education
to offer and maintain programs of continuing legal education designed to
develop, enhance and maintain the skill and competence of legal
specialists; and

3.11 To cooperate v.'ith other organizations, boards and agencies
engaged in the recognition of legal specialists or concerned with the
topic of legal specialization.



1991] CERTIFICATION OF SPECIALIZATION 615

4. Retained Jurisdiction of the Supreme Court

The Supreme Court retains jurisdiction with respect to the following
matters:

4.1 Amending this Plan;
4.2 Hearing appeals taken from actions of

the Board; and
4.3 Establishing or approving fees to be charged

in connection with this Plan.

5. Privileges Conferred and Limitations Imposed

The Board in the implementation of this Plan shall not alter the
following privileges and responsibilities of recognized specialists and
other lawyers:

5.1 No standard shall be approved which shall in any way limit the
right of a recognized specialist to practice in all fields of law. Any
lawyer, alone or in association with any other lawyer, shall have the
right to practice in all fields of law, even though he or she is recognized
as a specialist in a particular field of law;

5.2 No lawyer shall be required to be recognized as a specialist in
order to practice in the field of law covered by that specialty. Any
lawyer, alone or in association with any other lawyer, shall have the
right to practice in any field of law; even though he or she is not
recognized as a specialist in that field;

5.3 All requirements for and all benefits to be derived from
recognition as a specialist are individual and may not be fulfilled by nor
attributed to the law firm of which the specialist may be a member;

5.4 Participation in the program shall be on a completely voluntary
basis;

5.5 A lawyer may be recognized as a specialist in more than one
field of law. The limitation on the number of specialties in which a
lawyer may be recogized as a specialist shall be determined only by such
practical limits as are imposed by the requirement of substantial
involvement and such other standards as may be established by the Board
as a prerequisite to recognition as a specialist;

5.6 When a client is referred by another lawyer to a lawyer who is a
recognized specialist under this Plan on a matter within the specialist's
field of law, such specialist shall not take advantage of the referral to
enlarge the scope of his or her representation and, consonant with any
requirements of the Code of Professional Responsibility of this state,
such specialist shall not enlarge the scope of representation of a referred
client outside the area of the specialty field; and

5.7 Any lawyer recognized as a specialist under this Plan shall be
entitled to advertise that he or she is a "Board Recognized Specialist" in
his or her specialty to the extent permitted by the Code of Professional
Responsibility of this state.



616 INDIANA LAW REVIEW [Vol. 25:589

6. Specialty Committees

The Board shall establish a separate Specialty Committee for each
specialty in which specialists are to be recognized. The Specialty
Committee shall be composed of seven members appointed by the Board,
one of whom shall be designated annually by the Board as chairperson of
the Specialty Committee. Members of the Specialty Committee shall be
lawyers licensed and currently in good standing to practice law in this
state who, in the judgment of the Board, are competent in the field of
law to be covered by the specialty. Members shall hold office for three
years, except those members initially appointed who shall serve as
hereinafter designated. Members shall be appointed by the Board to
staggered terms of office and the initial appointees shall serve as
follows: two shall serve for one year after appointment; two shall serve
for two years after appointment; and three shall serve for three years
after appointment. Appointment by the Board to a vacancy shall be for
the remaining term of the member leaving the Specialty Committee. All
members shall be eligible for reappointment to not more than one
additional three-year term after having served one full three-year term.
Meetings of the Specialty Committee shall be held at regular intervals,
at such times and places and upon such notice as the Specialty
Committee may from time to time prescribe or upon direction of the
Board.

Each Specialty Committee shall advise and assist the Board in
carrying out the Board's objectives and in the implementation and

regulation of this Plan in that specialty. Each Specialty Committee shall
advise and make recommendations to the Board as to standards for the
specialty and the recognition of individual specialists in that specialty.
Each Specialty Committee shall be charged with actively administering
the Plan in its specialty and, with respect to that specialty, shall:

6.1 After public hearing on due notice, recommend to the Board
reasonable and nondiscriminatory standards applicable to that specialty;

6.2 Make recommendations to the Board for recognition, continued
recognition, denial, suspension or revocation of recognition of specialists

and for procedures with respect thereto;
6.3 Administer procedures established by the Board for applications

for recognition and continued recognition as a specialist and for denial,
suspension or revocation of such recognition;

6.4 Administer examinations and other testing procedures, if
applicable, investigate references of applicants and, if deemed advisable,
seek additional information regarding applicants for recognition or
continued recognition as specialists;

6.5 Make recommendations to the Board concerning the approval of
and credit to be allowed for continuing legal education courses, or
educational alternatives, in the specialty; and

6.6 Perform such other duties and make such other
recommendations as may be requested of or delegated to the Specialty
Committee by the Board.



1991] CERTIFICATION OF SPECIALIZATION 617

7. Advisory Commission

The Supreme Court shall appoint an Advisory Commission composed

of five nonlawyers, one of whom shall be designated annually by the
Supreme Court as chairperson of the Advisory Commission. The

Advisory Commission shall assist and advise the Board as to the public's
legal needs and assist the Board in determining how the public can best
be served through the specialization program. The members of the
Advisory Commission shall hold office for three years, except those
members initially appointed who shall serve as hereinafter designated.
Members shall be appointed by the Supreme Court to staggered terms of
office as follows: one shall serve for one year after appointment; two

shall serve for two years after appointment; and two shall serve for
three years after appointment. Appointment to a vacancy shall be made
by the Supreme Court for the remaining term of the member leaving the
Advisory Commission . Any member shall be eligible for reappointment
to not more than one additional three-year term after having served one
full three-year term. Meetings of the Advisory Commission shell be held

at regular intervals at such times and places and upon such notice as the
Advisory Commission shall prescribe or upon direction of the Board.
Members of the Advisory Commission shall have the right to attend all
meetings of the Board and the chairperson of the Advisory Commission
shall be a voting member of the Board.

8. Minimum Standards for Recognition of Specialists

To qualify for recognition as a specialist, a lawyer applicant must
pay any required fee, must demonstrate to the Board with respect to the
specialty knowledge of the law of this state and competence and must
comply with the following minimum standards:

8.1 The applicant must be licensed and currently in good standing to
practice lew in this state;

8.2 The applicant must make a satisfactory showing, as determined
by the Board after advice from the appropriate Specialty Committee, of
substantial involvement in the specialty during the three years
immediately preceding his or her application according to objective and
verifiable standards. Such substantial involvement shall be defined as to
each specialty from a consideration of its nature, complexity and
differences from other fields and from consideration of the kind and
extent of effort and experience necessary to demonstrate competence in
that specialty. It is a measurement of actual experience within the
particular specialty according to ^ny of several standards. It may be
measured by the time spent on legal work within the area of the
specialty, the number or type of matters handled within a certain period
of time or any combination of these or other appropriate factors.
However, within each specialty, experience requirements should be
measured by objective standards. In no event should they be either so
restrictive as to unduly limit recognition of lawyers as specialists or so

lax as to make the requirement of substantial involvement meaningless
as a criterion of competence.



618 INDIANA LAW REVIEW [Vol. 25:589

Substantial involvement may very from specialty to specialty, but, if
measured on a time-spent basis, in no event shall the time spent in
practice in the specialty be less than tv^enty-five percent (25%) of the

total practice of a lav^yer engaged in a normal full-time practice.
Reasonable and uniform practice equivalents may be established
including, but not limited to, teaching, judicial, government or corporate
legal experience;

8.3 The applicant must make a satisfactory showing, as determined
by the Board after advice from the appropriate Specialty Committee, of
continuing legal education accredited by the Board for the specialty, the
minimum being an average of ten hours of credit for continuing legal
education, or its equivalent, for each of the three years immediately
preceding application. Upon establishment of a nev/ specialty, this
standard may be satisfied in such manner as the Board, upon advice from
the appropriate Specialty Committee, may prescribe or may be waived
if, and to the extent, suitable continuing legal education courses have
not been available during the three years immediately preceding
establishment of the specialty; and

8.4 The applicant must make a satisfactory showing, as determined
by the Board after advice from the appropriate Specialty Committee, of
qualification in the specialty through peer review by providing, as

references, the names of at least five lawyers, all of whom are licensed
and currently in good standing to practice law in this state, or judges,
who are familiar with the competence and qualification of the applicant
as a specialist. None of the references may be persons related to the
applicant or, at the time of application, a partner of or otherwise
associated with the applicant in the practice of law. The applicant by
his or her application consents to confidential inquiry by the Board, or
appropriate Specialty Committee, of all such references, the appropriate
disciplinary body and other persons regarding the applicant's competence
and qualification to be recognized as a specialist.

9. Minimum Standards for Continued Recognition
of Specialists

The period or recognition as a specialist shall be five years. During
such period the Board or appropriate Specialty Committee may require
evidence from the specialist of his or her continued qualifications for
recognition as a specialist and the specialist must consent to inquiry by
the Board, or appropriate Specialty Committee, of lawyers and judges,
the appropriate disciplinary body or others in the community regarding
the specialist's continued competence and qualification to be recognized
as a specialist. Application for and approval of continued recognition as
a specialist shall be required prior to the end of each five-year period.
To qualify for continued recognition as a specialist, a lawyer applicant
must pay any required *fee, must demonstrate to the Board with respect
to the specialty both continued knowledge of the law of this state and
continued competence and must comply with the following minimum
standards:



1991] CERTIFICATION OF SPECIALIZATION 619

9.1 The specialist must cneke a satisfactory showing, as determined
by the Board after advice from the appropriate Specialty Committee, of
substantial involvement (which shall be determined in accordance with

the principles set forth in Section 8.2) in the specialty during the entire

period of recognition as a specialist;

9.2 The specialist must make a satisfactory showing, as determined
by the Board after advice from the appropriate Specialty Committee, of
continuing legal education accredited by the Board for the specialty
during the period of recognition as a specialist, the minimum being an
average of ten hours of credit for continuing legal education, or its

equivalentt for each year during the entire period of recognition as a
specialist; and

9.3 The specialist must comply with the requirements set forth in
Sections 8.1 and 8.4, above.

10. Establishment of Additional Standards

The Specialty Committee for each specialty may recommend, and
the Board may establish, additional or more stringent standards,
including, but not limited to, oral or written examinations, or a

combination of such examinations. If examination is required, it must be
applied uniformly to all applicants; provided, however, that waiver of the
requirement may be permitted if additional and substantially more
stringent standards are required of those for whom waiver is permitted.
The Specialty Committee may also recommend, and the Board may
establish, requirements which further define or quantify with at least
equal stringency the minimum standards set forth herein for recognition
or continued recognition as a specialist. Additional standards or
requirements established under this section need not be the sarne for
initial recognition and continued recognition as a specialist.

1 1. Suspension or Revocation of Recognition
as a Specialist

The Board may revoke its recognition of a lawyer as a specialist if
the specialization program in the specialty is terminated or may suspend
or revoke such recognition if it is determined, upon the Board's own
initiative or upon recommendation of the appropriate Specialty
Committee and after hearing before the Board on appropriate notice,
that:

11.1 The recognition of the lawyer as a specialist was made
contrary to the rules and regulations of the Board;

11.2 The lawyer recognized as a specialist made a false
representation, omission or misstatement of material fact to the Board
or appropriate Specialty Committee;

1 1.3 The lawyer recognized as a specialist has failed to abide by all
rules and regulations promulgated by the Board;

1 1.4 The lawyer recognized as a specialist has failed to pay the fees
required;



620 INDIANA LAW REVIEW [Vol. 25:589

11.5 The lawyer recognized as a specialist no longer meets the
standards established by the Board for the recognition of specialists; or

11.6 The lawyer recognized as a specialist has been disciplined,

disbarred or suspended from practice by the Supreme Court or any other

state or federal court or agency.

The lawyer recognized as a specialist has a duty to inform the Board
promptly of any fact or circumstance described in Sections 11.1 through

1 1.6, above.

If the Board revokes its recognition of a lawyer as a specialist, the
lawyer cannot again be recognized as a specialist unless he or she so

qualifies upon application made as if for initial recognition as a
specialist and upon such other conditions as the Board may prescribe. If
the Board suspends recognition of a lawyer as a specialist, such
recognition cannot be reinstated except upon the lawyer's application
therefore and compliance with such conditions and requirements as the
Board may prescribe.

12. Right of Hearing and Appeal to Supreme Court

A lawyer who is denied recognition or continued recognition as a
specialist or whose recognition is suspended or revoked shall have the
right to a hearing before the Board and, thereafter, the right to appeal
the ruling made thereon by the Board to the Supreme Court under such
rules and regulations as the Board and the Supreme Court may prescribe.

13. Financing the Plan

The financing of the Plan shall be derived solely from applicants and
participants in the Plan. If fees are not established by the Supreme
Court, the Board shall establish reasonable fees in each specialty field in
such amounts as may be necessary to defray the expense of
administering the Plan, which fees may be adjusted from time to time.
If established or adjusted by the Board, however, the fees must be
approved by the Supreme Court as provided in Section 4.3, above.

2520d