95-F-137 - Vacated*


*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

Formal Ethics Opinion 95-F-137

Inquiry is made regarding the disclosures required in advertisements relating to the certification of specialization.

The Tennessee Supreme Curt implemented the attorney certification of specialization program effective on June 15, 1994 when certifications of specialization became available in the areas of Civil Trial, Criminal Trial, Business Bankruptcy, Consumer Bankruptcy, Creditors’ Rights, and all areas reasonably included in any of these areas. On August 25, 1995, the Supreme Court approved standards and made Certification of Specialization available in the areas of Medical Malpractice, Legal Malpractice, Accounting Malpractice and Elder Law.

Disciplinary Rule 2-101(C) embodied in Tennessee Supreme Court Rule 8 provides three separate disclosures which may potentially be required in an advertisement of legal services with regard to any area of the law advertised. If an attorney is certified in one area advertised, is not certified in another area advertised, and no certification is available in another area advertised, then all three disclosures are required. The disclosures are:

[See DR 2-101(C)(2)(3) and (4)]

Certified as a [area of practice]
Specialist by the Tennessee Commission on Continuing
Legal Education and Specialization.

Not certified as a (area of practice)
Specialist by the Tennessee Commission on Continuing Legal
Education and Specialization.

Certification as a (area of practice)
Specialist is not currently available in Tennessee.

These disclosures are delineated by the Supreme Court in DR 2-101(C) of Rule 8 within quotation marks. Therefore the precise language of each disclosure is required with no variations or abbreviations.

The disclosures are required by DR 2-101(C)(6) to be included in a prominent manner.

The name(s) of the lawyer(s) who are responsible for the performance of the legal services advertised are required by DR 2-101(C)(1) to be disclosed.

Disciplinary Rule 2-101(C)(5) prohibits statements in advertisements that certification is not available in an advertised area if that area has been identified by the Tennessee Commission on Continuing Legal Education and Specialization (Commission) as included in an area of specialization; or, in the absence of such identification, if the advertised area is reasonably included in a certified area.

The Commission has presently identified Family Law as being included n the area of Civil Trial practice. In addition the Commission has presently identified the following areas wherein certifications of specialization are not available:

Administrative Law                           Labor & Employment Law
Admiralty                                          Mediation
Commercial Law                               Patent, Trademark &
Environmental Law                                  Copyright Law
Estate Planning & Probate                Real Property Law
Health Care Law                               Securities Law
Immigration Law                               Taxation Law

The Commission initially determined that Social Security was included in the field of Civil Trial, but has now determined that it is actually in the field of Administrative Law, for which no certification is presently available.

In addition the Commission has identified Personal Injury, Domestic Relations, Family Law, Workers’ Compensation and Commercial Litigation as being included n the area of
Civil Trial specialization, for which certification is available, and either the disclosure of “Certified...” or “Not Certified...” is required.

It appears to the Board of Professional Responsibility that in addition to the above, the following areas or types of practice are reasonably included in a certified speciality:

The area of Civil Trial also reasonably includes Accidents, Criminal Injuries, Death Claims, Divorce, Litigation, Products Liability, and many other reasonably included areas.

The area of Criminal Trial also includes Drug Cases, Drunk Driving, DWI, Felonies, Misdemeanors, Probation and Parole Violations, Records Cleared or Expunged, Revoked License, and many other reasonably included areas.

The areas of Bankruptcy and /or Creditors Rights also include Chapter 7, Chapter 13, Creditor Harassment, Debt Consolidation, Fresh Start, Home Mortgage Foreclosures, Keep Property, Qualified Plan, Reorganization, Repay Debts, Repossessions, wage Earner, Wage Garnishment, and many other reasonably included areas.

The area of Elder Law includes any field utilizing the terms “older persons”, “elderly” or “senior citizens”, or mentioning Medicare planning o long-term care planning.

A lawyer who publishes or broadcasts an advertisement or unsolicited communication with regard to any area of the law has an ethical obligation, pursuant to DR 2-101(C), to include the appropriate disclosure(s). Any doubts or confusions about areas or types of practice or whether certifications for specialization are available may be resolved by contacting the Commission on Continuing Legal Education and Specialization [(615) - 741-3096] or the Board of Professional Responsibility [(615) 361-7500].

This 8th day of December, 1995.


James M. Glasgow, Jr., Chair
Herman Morris, Jr.