Maryland attorneys have long been prohibited from advertising themselves as “specialists” in a particular area of law. But a proposed change to the Maryland Rules would lift that ban, largely due to concern over whether it is constitutional.
The Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure has proposed the Court of Appeals strike the prohibition of a lawyer from “hold(ing) himself or herself out publicly as a specialist.”
Although attorneys are permitted to advertise that their practice is limited to certain areas of law, Maryland and West Virginia are the only states that still prohibit attorneys outright from advertising themselves as specialists.
The proposed amendment to Rule 19.-307.4, which governs attorneys’ rights to advertise their fields of practice, was part of a report of proposed rules changes the committee sent to the state’s highest court last week. There’s no indication yet of when the proposed rule could be considered by the Court of Appeals or when it could take effect, although the comments period for the Rules Committee’s report is open until Nov. 14.
Irwin Kramer, a lawyer who frequently handles attorney grievance cases, said he has long felt the “specialist” ban is unnecessary. To a layman, Kramer said, the word does not necessarily mean someone with advanced certification.
“You’re allowed to say that your practice is limited to certain areas or that you concentrate in certain areas — the crime is that of an improper synonym,” said Kramer, managing partner of Kramer & Connolly in Reisterstown. “The objective is to communicate to laypersons and prospective clients what the lawyer does. If I say I specialize in attorney discipline cases, I’m communicating to you the nature of what my practice is about. If I were to tell you I specialize in ERISA litigation, I would be falsely representing the nature of my practice.”
The Rules Committee, along with the Maryland State Bar Association, recommended last year that the Court of Appeals create a judicial commission to recommend areas of specialty that could be recognized and accredit certifying agencies — the approach many states that allow attorneys to specialize have taken. The court deferred action, however, on the recommendation due to a lack of funding for two judicial positions that would have served on the commission.
But in its report delivered last week, the Rules Committee revisited the issue of attorney specialization and noted concerns about the constitutionality of the ban.
“There’s a First Amendment issue — the courts really should not be involved in picking an attorney’s choice of words,” Kramer said.
Since the Court of Appeals first adopted an outright prohibition on specialization in 1977 — before that, attorneys in most states were “severely limited” in advertising their services at all — the legal landscape has shifted, the committee said. The U.S. Supreme Court, for example, deemed a comparable Illinois rule invalid, finding that states may only restrict commercial speech such as attorney advertising if it is “false, deceptive, or misleading” and if the restriction advances a substantial state interest using the least prohibitive means available.
In its recommendation that the court lift the ban, the Rules Committee noted that concerns about its constitutionality necessitate prompt action despite the current lack of accrediting agencies and other infrastructure in place in the state for lawyers who wish to advertise themselves as specialists.
“Repealing that one provision would not remove all constraints on attorneys advertising themselves as specialists,” the committee wrote. “All advertising by attorneys is subject to Rule 19-307.1, which precludes attorneys from making a false or misleading communication about the attorney or the attorney’s services and, in relevant part, declares a communication to be false or misleading if it ‘contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.’”
MSBA President Harry Storm said Tuesday he expects the association will continue to work with the Rules Committee and will likely be “actively involved” with the eventual process of determining the parameters for specialization if the ban is lifted.
“Something will no doubt have to be put into place to deal with it,” Storm said. “But I think it’s recognized that it was important to just get rid of the absolute prohibition now, because there have been First Amendment concerns raised.”
Kramer, on the other hand, said he does not favor limiting the use of the word “specialize” in attorney advertising to those lawyers who’ve earned certifications in certain fields of law.
“What does that really mean? It means you’ve taken certain exams and attended certain coursework,” Kramer said. “A really busy trial lawyer who has no time for that, does that mean that busy trial lawyer is somehow less of a trial lawyer?”