2001-F-137(b) - Vacated*

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

FORMAL ETHICS OPINION 2001-F-137(b)


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


The Tennessee Supreme Court 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. Most recently, the Supreme Court approved standards making certification of specialization available in the area of Estate Planning on January 6, 1997, and in the area of Family Law on December 30, 1999.

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 the following areas wherein certifications of specialization are not available:


Administrative Law                                                 Mediation
Admiralty                                                                Patent, Trademark &
Commercial Law                                                             Copyright Law
Environmental Law                                                  Real Property Law
Health Care Law                                                     Securities Law
Immigration Law                                                      Taxation Law
Labor & Employment 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, Workers' Compensation and Commercial Litigation as being included in 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 specialty:


The area of Civil Trial also reasonably includes Accidents,
Criminal Injuries, Death Claims, 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 or long-term care planning.

The area of Estate Planning includes any field utilizing
“Wills”, “Trusts”, “Estates”, “Decedents’ Estates”,
“Probate”, and many other reasonably included areas, or tax
consequences specifically relating to these areas or to
generation-skipping transfers.

The area of Family Law also reasonably includes Domestic
Relations, Child Support, Child Custody and Visitation,
Adoption, Divorce, Alimony, and many other reasonably
included areas.


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 9th day of March, 2001


ETHICS COMMITTEE:

Charles E. Carpenter, Chair
Carthel L. Smith, Jr
Mark L. Hayes
Dr. Melvin Wright


APPROVED AND ADOPTED BY THE BOARD