Thursday, November 28, 2013

When is an Expert not an “Expert”?

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 toconventional 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.”

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.)


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).