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Md. lawyers still in gray area with rule change on ‘specialist’

“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.” (File photo)

‘I always thought the rule was silly in the first place because it always allowed for synonyms which meant the same thing,” Irwin R. Kramer says of the long-time prohibition on the use of the word ‘specialist’ by a Maryland lawyer. ‘The fact that people can be flagged for using an improper synonym makes no sense at all, never did.’ (File photo)

Maryland lawyers, as of this month, are allowed to use the word “specialize” when advertising their area of practice. But because the word was prohibited for so long, attorneys and those who enforce the Maryland Lawyers’ Rules of Professional Conduct are cautious about when it can be used.

“Just because the rule has been amended, attorneys who wish to hold themselves out as specialists, they have to have some specialized experience and knowledge of that practice area,” said Raymond A. Hein, acting Bar Counsel for the Maryland Attorney Grievance Commission. “The main complication simply will be it introduces an element of subjectivity as to whether a person is a specialist in a certain practice.”

The Court of Appeals in December approved the change to the Maryland Lawyers’ Rule of Professional Conduct 19-307.4, or 7.4, by removing the mandate that lawyers “shall not hold (themselves) out publicly as a specialist.” The excision was recommended by the Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure.

Before this month, attorneys were allowed to say they practice in particular fields of law but were barred from using the word “specialize.” The amended rule retains a truth-in-advertising provision that bars attorneys from making false or misleading statements about their services.

Irwin Kramer, a lawyer who frequently handles attorney grievance cases, said the change was a long time coming.

“I always thought the rule was silly in the first place because it always allowed for synonyms which meant the same thing,” said Kramer, of Kramer & Connolly in Reisterstown. “The fact that people can be flagged for using an improper synonym makes no sense at all, never did.”

For the general public, whether an attorney says they “focus on” a particular area, versus saying “specialize,” the message is the same, he added.

“Lay people don’t understand the Maryland Rules of Professional Conduct, nor should they,” Kramer said, acknowledging that concerns about attorneys misrepresenting their experience is a different matter.

Despite the rule change, Kramer said he does not plan to use the word “specialist” to advertise his practice.

“I probably would steer clear of it myself for professional reasons since it used to be part of a rule,” he said.

For procurement lawyer Scott Livingston, the amendment is a welcome change.

“It helps distinguish me from the uninitiated,” said Livingston, of Rifkin Weiner Livingston LLC in Annapolis. “It would support a client’s decision to consider me over those who aren’t ‘specialists’ in this area.”

Standard needed?

One question that has yet to be answered by the Court of Appeals is whether there will be a standard established in order to become a specialist. Livingston wants to see a factor-based approach, taking into account a lawyers’ experience, education, court-recognized expertise by way of cited law review articles and pro bono work in that area, Livingston said.

“It would depend on the different practice area but all of those factors cited would be applicable,” he said, adding that a factor system is consistent with courts.

The Attorney Grievance Commission hardly ever filed public charges against attorneys for calling themselves specialists, according to Hein. Occasionally, the commission would open a file on an attorney who then would change the advertising language to avoid disciplinary action.

“We have not frequently proceeded beyond the initial investigations stage,” Hein said.

One exception was a 2014 case, Attorney Grievance Commission of Maryland v. Runan Zhang, in which the Court of Appeals disbarred an attorney in part because she described herself as a specialist in immigration and corporation law.

However, in a concurring and dissenting opinion, Judge Robert N. McDonald questioned the logic behind then-Rule 7.4.

“A random walk through the websites of law firms listed in the yellow pages of the Maryland Lawyers’ Manual yields many instances in which lawyers strongly imply, or state in other words, that they specialize in certain fields,” McDonald wrote. “Limitation of one’s practice to certain areas and disclosure of that limitation to the public is a good thing. A lawyer who tries to be a jack of all trades will be competent at none and may commit more serious violations of the MLRP.”

He added: “Perhaps it would be worth considering a conforming revision to our rule,” he wrote.

Now that the rule has been revised, Kramer wants the courts to focus on other issues that impact the legal profession.

“Let’s focus on things that lawyers do that truly harm the public than getting bogged down in details,” he said. “When you look at it in a fuller context, it’s just picky.”

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