The objective of The Ethics and Professional Liability Bulletin is to keep legal professionals informed of recent developments and trends in the areas of legal ethics, professionalism, and professional liability.
August 23, 2021 – A lawyer may communicate that he or she is a specialist in a field of law if that field has been designated as an area of lawyer specialization by the Supreme Court of Ohio. Recently, the Ohio Board of Professional Conduct (the “Board”) clarified that any communication by a lawyer that he or she is a specialist in a field of law that is not designated by the Supreme Court is misleading and prohibited.
The Supreme Court of Ohio designates areas of lawyer specialization. The Supreme Court possesses the constitutional authority to regulate the practice of law in the state.[i] Pursuant to this authority, the Supreme Court established the Commission on the Certification of Attorneys as Specialists. The primary responsibilities of the Commission are: (1) to accredit organizations that may certify individual lawyers as specialists, and (2) to recommend to the Supreme Court fields of law for designation as specialty areas of practice.[ii] An Ohio lawyer may hold himself or herself out to the public as a specialist in a field of law, but only if the lawyer “is certified by an accredited organization as a specialist in a field of law and if that field of law is designated by the Supreme Court as a specialty area.”[iii]
Ohio lawyers may only communicate that they are specialists in an area of law if they have been certified as specialists in an area of law designated by the Supreme Court of Ohio. On June 11, 2021, the Board issued Opinion 2021-05 in response to a question posed by an Ohio law firm regarding whether the firm could advertise that it had lawyers who are board certified in truck accident law. Some of the firm’s lawyers were in fact board certified by the National Board of Trial Advocacy (NBTA) in “truck accident law.”[iv] The Supreme Court of Ohio does not recognize truck safety or truck accident law as areas of lawyer specialization.[v] The Supreme Court does recognize the NBTA as an accredited agency, but has only approved civil law, criminal law, family law, and social security disability law as specialty areas of certification by the NBTA in Ohio.[vi]
Professional Conduct Rule 7.1 states that “[a] lawyer shall not make or use a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services.”[vii] Even truthful statements are prohibited if they are misleading, that is, “if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.”[viii]
Rule 7.4 specifically prohibits lawyers from stating or implying that they are specialists in a particular legal field, unless two conditions are met. First, the lawyer has to have been certified as a specialist by an organization approved by the Supreme Court Commission on Certification of Attorneys as Specialists.[ix] Second, any communication by the lawyer regarding the specialty area must clearly identify the certifying organization.[x]
As such, the Board concluded in its opinion that the firm could not advertise that was certified by the NBTA in “truck accident law,” because while the statement was true, it was technically misleading and therefore prohibited.[xi]
Conclusion and Practical Takeaway. Ohio lawyers may not advertise, state, or imply that they are certified specialists in an area of law, unless they are certified in an area of specialization designated as such by the Supreme Court of Ohio. Even where an area of law is designated as a specialty by an accredited entity, such as the National Board of Trial Advocacy, Ohio lawyers must ensure that the specialty area itself is recognized by the Supreme Court.
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The information provided in this bulletin speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this bulletin, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Alvin E. Mathews, Jr. at firstname.lastname@example.org.
[i] “The Supreme Court shall have original jurisdiction in the following: . . . g) Admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law.” Oh. Const. IV, Sec. 2(B)(1)(g).
[ii] Ohio Board of Prof. Cond., Op. 2021-05, 2.
[iii] Ohio Board of Prof. Cond., Op. 2021-05, 2.
[iv] Ohio Board of Prof. Cond., Op. 2021-05, 1.
[v] A list of the fields of law subject to specialization designation in Ohio is available by clicking here.
[vi] A list of accredited agencies and specialty programs for each agency in Ohio is available by clicking here.
[vii] Ohio Prof. Cond. R. 7.1.
[viii] Ohio Board of Prof. Cond., Op. 2021-05, 3, quoting Ohio Prof. Cond. R. 7.1, cmt. (internal quotations omitted).
[ix] Ohio Prof. Cond. R. 7.4(e)(1).
[x] Ohio Prof. Cond. R. 7.4(e)(2).[xi] Ohio Board of Prof. Cond., Op. 2021-05, 3.