There is a persistent and widely-held belief that it is
unethical for a Colorado lawyer to call him/herself an expert, even if s/he is one. Take, for example, John Moye and Cathy Krendl. No Colorado lawyer would seriously contend
that John and Cathy are not experts in the field of corporate law. Each has taught the subject at well-regarded
law schools and countless CLEs, written treatises on the subject, practiced in
the field for decades, been involved in the development of the Colorado Corporation
Code, and been frequently qualified as an expert witness in corporate law. Both are widely recognized by their peers as
among the very best in their field. If
John and Cathy are not “experts” in corporate law, no one is. Yet – and reserving for later the pragmatic
question of whether they ought to – conventional ethical wisdom is that
were either to actually hold him/herself out as an “expert” in corporate law s/he
would burn in hell for eternity – or, worse, be summoned before the Office of
Attorney Regulation Counsel and consigned to diversion and Ethics School. Why is this?
Unlike some other state’s ethics codes,[1]
the Colorado Rules of Professional Conduct do not expressly prohibit an
attorney from truthfully holding him/herself out as an “expert.” They never have. Indeed, since providing truthful consumer
information is the “prime directive” of the regulation of attorney advertising,[2]
it would be absurd to conclude that a bona
fide expert may not, on disciplinary peril, hold him/herself out as
one. And yet such peril exists. Two arguments are commonly advanced in
support of this farcicality.
Colo. RPC 7.1
The starting point for analysis is the general rule
governing attorney advertising: ABA Model Rule 7.1 (Communications Concerning a
Lawyer’s Services). As adopted in
Colorado, Colo. RPC 7.1(a)
provides:
(a) A lawyer shall
not make a false or misleading communication about the lawyer or the lawyer’s
services. A communication is false or misleading if it:
(1) contains a
material misrepresentation of fact or law, or omits a fact necessary to make
the statement considered as a whole not materially misleading;
(2) compares the
lawyer’s services with other lawyers’ services, unless the comparison can be
factually substantiated; or
(3) is likely to
create an unjustified expectation about results the lawyer can achieve[.]
Continuing with our esteemed test cases, Rule 7.1(a)(1) is
no impediment to John and Cathy holding themselves out as experts in corporate
law. On the contrary, as Comment [2]
states:
The touchstone of
this Rule, as well as Rules 7.2 through 7.4, is that all communications
regarding a lawyer’s services must be truthful. Truthful communications
regarding a lawyer’s services provide a valuable public service and, in any
event, are constitutionally protected.
Shackling John and Cathy with regulatory modesty is contrary
to the espoused public policy of making truthful information available to consumers
seeking competent counsel, and is almost certainly an unconstitutional prior
restraint of protected commercial speech.
Nor does Rule 7.1(a)(2) present an obstacle to John and
Cathy brandishing their expert credentials.
Expertness is not a zero-sum game.
Holding oneself out as an expert requires no comparison to other lawyers’
services; John’s expertness in corporate law in no way diminishes Cathy’s or
anyone else’s. Even were one to argue
that John’s holding himself out as an expert in corporate law impliedly compares his services to other
lawyers’, the comparison is factually substantiable in the eyes of anyone not hell-bent
on treating Rule 7.1(a)(2), not so much as the regulatory embodiment of the Lake Wobegone Effect, where all the
lawyers are above average, but more as a codification of Harrison Bergeron, with the OARC cast in the role of the Handicapper
General.
Rule 7.1(a)(3) is frequently invoked as a basis to eradicate
“expert” from the attorney’s advertising lexicon. The argument goes that “calling oneself an
expert could imply a level of certainty about the success of a representation
that cannot be accurately predicted.”[3] This view is consistent with a general paternalistic
attitude reflected in the Rules of Professional Conduct. The Rules have been frequently described as
client-centered, and they are. This is a
good thing. However, a corollary is that
some Rules – particularly those relating to attorney advertising – are
overprotective, and assume that all, or at least most, consumers of legal
services are dolts. |
| "The Greatest" |
Those who invoke Rule 7.1(a)(3) to silence truthful speech
are the worst kind of ethics scolds, the type who would advance “even if it
would save only one consumer” as compelling logic to impose a policy of protective
absolutism. Doing so, however, not only sacrifices
truthful consumer information and the First Amendment on the altar of nannyism,
but also overlooks that ordinary consumers are quite capable of discriminating
relative truth from the barrage of marketing hyperbole in which they are daily immersed. Your average sports fan understands that “The
Greatest” is merely an appellation Muhammad Ali gave himself. She also knows that, while although Peyton
Manning, by any measure, is an “expert” quarterback, this designation is no
guaranty of victory or a fistful of Super Bowl rings. Banning the dissemination of truthful
information to all consumers for fear that some may perceive the designation “expert”
as a “stone cold lock” for legal success is insulting and a misguided overreach.
Moreover, viewed against a contemporary legal advertising milieu
in which attorneys may freely and loudly proclaim their anointment as a Best
Lawyer® or Super Lawyer® without fear of disciplinary reprisal, the title “expert”
seems downright pedestrian. To consecrate
the use of these immodest monikers merely because they are sanctioned by self-appointed
ratings companies, whose monetization derives from the sale of advertising and
self-aggrandizing plaques, while proscribing the truthful use of “expert” — as if,
like Lord Voldemort, “expert” is an adjective which must not be named — is ethical
myopia. As used in most attorney
advertising, the designation Best Lawyer® or Super Lawyer® rarely carries a meaningful
disclaimer or explanation of methodology, and is of no greater value to
consumers of legal services than the truthful use of “expert.”
 |
| He-Who-Must-Not-Be-Named |
Colo. RPC 7.4
ABA Model Rule 7.4 (Communications of Fields of Practice) is
the other basis most frequently cited for the exile of “expert” from attorney
advertising. However, just as with Colo.
RPC 7.1, Colo. RPC 7.4 nowhere mentions the word “expert”; not in the Rule or
its Comments.
Expressly authorizing the use of “Patent Attorney,” “Proctor
in Admiralty,” and similar designations on historical grounds,[4]
the remainder of Colo. RPC 7.4 pertinent to question of whether an expert may
truthfully denote him/herself as one, provides:
(a) A lawyer may
communicate the fact that the lawyer does or does not practice in
particular fields of law or that the lawyer is a specialist in particular
fields of law. Such communication shall be in accordance with Rule 7.1.
. . . .
(d) A lawyer shall
not state or imply that a lawyer is certified as a specialist in
a particular field of law, unless:
(1) the lawyer has
been certified as a specialist by an organization that has been approved
by an appropriate state authority or that has been accredited by the American
Bar Association; and
(2) the name of the certifying
organization is clearly identified in the communication.
(e) In any
advertisement in which a lawyer affirmatively claims to be certified in
any area of the law, such advertisement shall contain the following disclosure:
“Colorado does not certify lawyers as specialists in any field.” This
disclaimer is not required where the information concerning the lawyer’s
services is contained in a law list, law directory or a publication intended
primarily for use of the legal profession.
(Emphasis added.)
Rule 7.4 owes its existence to Peel v. Attorney Registration andDisciplinary Commission, 496 U.S. 91 (1990). In Peel
the Supreme Court struck down a provision of the Illinois Code of Professional Responsibility,
holding that Illinois could not categorically ban Gary Peel from truthfully
stating he held a “Certificate in Civil Trial Advocacy” from the National Board
of Trial Advocacy. The response of
attorney regulators was to render Model Rule 7.4 one of the least uniform Model
Rules in the nation, with more than a score of variations,[5]
several of which ban, or severely restrict, the use of “expert” in attorney
advertising; but not Colorado.
Colo. RPC 7.4(a) expressly authorizes Colorado attorneys to
hold themselves out a “specialist” in a particular field of law, and wisely
defers to Rule 7.1 the standards and circumstances under which they may do
so. As discussed above, Rule 7.1 does
not, on its face bar a genuine expert in a particular field of law from calling
herself one, and sound public policy considerations weigh against finding any
implied ban.
Colo. RPC 7.4(d) addresses the discrete issue of certification, which was the issue
involved in Peel. Certification denotes an imprimatur, either
by the state or some qualified private organization; self-proclaimed “expert”
status does not. While, as discussed
below, some other states have treated “expert” as fungible with “specialist,”
the focus of Colo. RPC 7.4(d) is properly on claims of certification, not
claims of specialization or expertness.
But Should You?
Having examined the regulations governing whether a Colorado
lawyer may hold herself out as an “expert” in a particular field, the question
remains: Should she? Several arguments counsel against doing so.
Being an “Expert” isn’t what it used
to be.
As noted above, real or imagined regulatory restrictions on
attorney advertising have spawned a plethora of commercial lawyer ratings
services. Ostensibly justified on the grounds
that they provide independent and objective measurements of legal skill – or at
least personal brand recognition and popularity – as commonly used in attorney
advertising the monikers Best Lawyer®, Super Lawyer®, AV Preeminent®, Leading
Lawyers™ and the like provide little information of genuine value to the
perceived low-information consumer of legal services that attorney advertising
regulations purport to protect. These commercially
manufactured appellations have, however, seriously devalued the marketing power
of “expert.” How can a mere “expert”
hope to compete with a Super Lawyer®? 
Moreover, these commercial appellations are
trial-tested. When, in 2006, the New
Jersey Supreme Court’s Committee on Attorney Advertising held that attorney advertisements
touting Best Lawyer® or Super Lawyer® credentials “violate the prohibition
against advertisements that are comparative in nature, RPC 7.1(a)(3),
or that are likely to create an unjustified expectation about results, RPC
7.1(a)(2),”[6]
the owners of these ratings services unleashed a fusillade of litigators to
protect their respective rice bowls. Yielding
to this bombardment, the New Jersey Supreme Court vacated Opinion 39 on sound constitutional
grounds.[7] With the owners of attorney ratings services
standing ready and extremely able to defend the use of their trademarked titles,
why would any lawyer having been included in one of these services assume the
risk that a regulator might find the use of “expert” offends the local code of
ethics, when no ethics body has had the temerity to challenge these more
grandiose cognomens since 2006?
A heightened
standard of care.
Another pragmatic reason to resist the use of “expert” in
self-promotion is that courts have held attorneys proclaiming expertness or
specialization to a commensurately higher standard of care than otherwise is applied
in legal malpractice cases. See Duffey Law Office, S.C. v. Tank Transport,Inc., 194 Wis.2d 674, 535 N.W.2d 91 (Wis.App., 1995) (holding an attorney
who “presented himself as an expert in the areas of labor law, collective
bargaining agreements, and pension-fund contribution law . . . to a
standard of care that is consistent with that representation”); PraxairInc. v. Hinshaw & Culbertson, 235 F.3d 1028 (7th Cir. 2000) (“A law
firm or other professional entity that represents itself to have special
competence in a particular matter commits itself to a standard of care above
the average for the profession as a whole”); Transcraft Inc. v. Galvin, Stalmack, Kirschner & Clark, 39
F.3d 812 (7th Cir. 1994) (lawyer may be held to higher duty of care where “he
represented himself to be a specialist or to have unusual qualities”). See
also Rhodes v. Batilla, 848 S.W.2d 833
(Tex. App. 1993) (attorney who held himself out as tax specialist “properly
held to the standard of care which would be exercised by a reasonably prudent
tax attorney.”)
At least one jurisdiction has codified this common law rule
in its ethics code. Massachusetts Rule ofProfessional Conduct 7.4(c) expressly provides:
Except as provided
in this paragraph, lawyers who associate their names with a particular
service, field, or area of law imply an expertise and shall be held to the
standard of performance of specialists in that particular service,
field, or area. Lawyers may limit responsibility with respect to a
particular service, field, or area of law to the standard of an ordinary lawyer
by holding themselves out in a fashion that does not imply expertise, such as
by advertising that they “handle” or “welcome” cases, “but are not specialists
in” a specific service, field, or area of law.
(Emphasis added.)
Decorum.
Although Bates v. State Bar of Arizona,[8]
was decided over thirty-five years ago, a strong aversion to attorney
advertising, or at least to public displays of hubris, remains, particularly
among older attorneys, who as a group may be more qualified to be considered “experts.”
Risk management: because reasonable ethicists can disagree.
No published Colorado opinion has sanctioned an attorney for
truthfully holding him/herself out as an “expert.” However, ethics opinions from other
jurisdictions have held that an attorney’s use of the word “expert” is either
misleading under Rule 7.1 and/or a violation of Rule 7.4. See,
e.g., Ohio Supreme Court Board of Grievances and Discipline Op. 2005-6 (2005) (construing
Ohio DR 2-105 to find “no leeway for attorneys to use the term “expert” in
advertising”); In re PRB Docket No.2002.093, 177
Vt. 629, 868 A2d. 709 (2005) (affirming private admonition imposed upon lawyer
who advertised as “Injury Experts,” which was found "likely to create an
unjustified differentiation and expectation among those reading the
advertisement about the results which can be achieved by a lawyer claiming to
be an expert"); Conn. Informal Ethics Op. 03-04 (2003) (advertising
oneself as an “expert” in a particular field is impermissible unless an attorney
has accredited certification in such field); Maryland State Bar Assoc. Op.
00-21 (1999) (lawyer may not use term “expert” to avoid application of Rule
7.4(a), which provides “[a] lawyer shall not hold himself or herself out
publicly as a specialist”); IowaState Bar Op. 02-04 (2002) (designation “expert” not permitted under former
Iowa Code of Professional Responsibility); MississippiState Bar Op. 206 (1993) (withdrawn 6 April 2013) (use of expert found potentially
misleading).
Similarly, the ethics codes of some states expressly forbid
the use of “expert” in attorney advertising.
See, e.g., SouthCarolina Rule 7.4(b) (“advertisement[s] or statements shall be strictly
factual and shall not contain any form of the words ‘certified,’ ‘specialist,’ ‘expert,’
or ‘authority’ . . . .”); former Florida Rule 4-7.2(c)(6) (“A lawyer shall not
state or imply that the lawyer is . . . an ‘expert’ . . . .”) (deleted 31 January
2013, effective 1 May 2013). See also IllinoisRule 7.4(c) (“Except when identifying certificates, awards or recognitions
issued to him or her by an agency or organization, a lawyer may not use the
terms ‘certified,’ ‘specialist,’ ‘expert,’ . . . “); KentuckySCR 3.130(7.40) (attorney may not use the word “expert” in advertising
unless “certified as a specialist by an organization that has been approved by
an appropriate state authority or by a national organization”); Louisiana Rule 7.2(c)(5)
(attorney shall not state or imply s/he is an “expert” unless certified by
Louisiana Board of Legal Specialization or outside accrediting organization if
certain requirements are met).
Clearly, as a matter of policy, reasonable ethicists may
disagree regarding whether the use of “expert” in attorney advertising is so
inherently misleading or subjective that its use should be vanquished from the
vernacular of attorney advertising, even by attorneys who no one would dispute
are experts in their field. Although the
Colorado Rules of Professional Conduct do not expressly forbid its use, and
sound public policy and Constitutional arguments weigh strongly in favor of allowing
it, it is always possible that the Colorado Supreme Court or its Attorney
Regulation Counsel may find otherwise.
If you call yourself an expert,
you’d better be one.
Finally, it must be emphasized that the above analysis assumes
the use of “expert” by attorneys widely and justly acclaimed to be so. Preeminent authorities, such as John Moye and
Cathy Krendl, are, by definition, rare. Still,
expertness is not a zero-sum game. Both the Colorado and Federal Rules of
Evidence permit expert testimony by one who is qualified “knowledge, skill,
experience, training, or education.”[9] Preeminence is not required.
Nevertheless, it is crystal clear under Rule 7.1 that if you
are going to hail yourself as an “expert,” you had better be able to back up the
claim with more than lip service. See, e.g., In re Richmond’s Case, 152 N.H. 155, 872 A.2d 1023 (N.H. 2005) (attorney suspended for touting
expertise in securities law who had drafted, but never filed, a registration
statement). For while prohibiting the
truthful use of “expert” is of dubious value and constitutionality, misleading
advertising of any kind is indefensible.
[1] See discussion, infra.
[2] See Colo. RPC 7.1(a) (“A lawyer
shall not make a false or misleading communication about the lawyer or the
lawyer’s services”)
[3]
Peter Geraghty & Sue Michmerhuizen, Think Twice Before You Call Yourself AnExpert, Your ABA (March
2013).
[4] See Colo. RPC 7.4, Comment [2].
[5] A compilationof these variations has been compiled by the ABA.
[7] In Re: Opinion 39 Of The Committee On AttorneyAdvertising, 197 N.J. 66, 961 A.2d 722 (N.J. 2008)
[8] 433
U.S. 350 (1977).
