Ethics Opinion

Opinion No. 81-3

March 1981

Summary: An attorney may not advertise himself as a "Specialist in Taxation," even though the advertisement is inserted only in a weekly newspaper designed primarily for lawyers.

Facts: Attorney A inquires whether his firm is permitted to insert an advertisement in a weekly newspaper designed for lawyers in which his firm or members thereof refer to themselves as "Specialists in Taxation."

Discussion: In MBA Opinion 79-10, we advised that an attorney might not use the term "specialist" or "specializing" on his letterhead, brochures about the firm or office signs. Our advice was based on DR 2-105(A), which provides that "[a] lawyer shall not hold himself out publicly as, or imply that he is, a recognized or certified specialist." The rule recognizes a few historically recognized exceptions in the fields of trademark, patents, and admiralty and even then lawyers do not seem to be permitted to use the word "specialist." They may only use such words as "Patents," "Patent Attorney," or "Patent Lawyer." The present inquiry requires us to advise whether the rule is meant to cover, within the meaning of "publicly," an advertisement in a newspaper that circulates primarily to lawyers and not the general public.
Prior to the amendment of DR 2 by the Supreme Judicial Court in 1979, DR 2-105(A) also forbade a lawyer to hold himself out "publicly as a specialist or as limiting his practice." There were four exceptions in former DR 2-105(A). One was similar to the current exception relating to patent, trademark, and admiralty lawyers. DR 2-105(A)(1). Another granted permission to list with a lawyer referral service fields of law in which a lawyer would accept a referral. DR 2-105(A)(2). A third permitted an announcement in a legal journal of the availability to act as a consultant in a particular field, "but the announcement shall not contain a representation of special competence or experience." DR 2-105(A)(3). The fourth exception, adopted from the model ABA Rules, allowed lawyers certified as specialists in states having such a procedure to hold themselves out as such. DR 2-105(A)(4). Only the last exception, however, contemplated use of the term "specialist," and it was not applicable in Massachusetts since no certifying procedure had been adopted. Former DR 2-105(A) also referred to one other exception, that contained in DR 2-102(A)(6), which allowed listing of information in a reputable law list or legal directory. Those are publications limited primarily to lawyers. Among the information permitted to be inserted in those publications was "a statement that the lawyer or law firm specializes in a particular field of law or law practice but only if authorized under DR 2-105(A)(4)."
The former rules, then, taken all together indicate rather clearly that the prohibition against holding oneself out "publicly as a specialist" in those rules defined "publicly" to include holding out to audiences limited to lawyers.
The amendment of the rules by the Supreme Judicial Court in 1979 removed much of the regulatory language relating to advertising, including the former DR 2-102(A)(6). However, DR 2-105(A) remains and the crucial language prohibiting holding oneself out ''publicly" as a recognized or certified specialist remains. There is nothing in the new rules to indicate that the court meant the word "publicly" to have any different meaning from the meaning it had in the former rules. We, therefore, advise that the prohibition contained in DR 2-105(A) applies to publications limited primarily to lawyers.
It is true that the earlier prohibition forbade holding out as a "specialist" while the current prohibition forbids a lawyer from holding himself out as, or implying that he is, a "recognized or certified specialist." While one might argue that an advertisement as a "Specialist in Taxation" does not hold the lawyer out as certified, yet the rule forbids advertisement also as a "recognized" specialist. We are uncertain why the court added the words "recognized or certified" in 1979, but we believe that advertisement as a "Specialist in Taxation" holds the lawyer out as, or at least implies that he is, a "recognized ... specialist." We, therefore, advise that MBA Opinion 79-10 also applies to lawyers advertising as "specialists" in media limited primarily to lawyers.

Permission to publish granted by the Board of Delegates on February 25, 1981. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.