This Week in Legal Ethics – New Professional Conduct Ruling

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LegalEthicsBannerBy Melanie Hodges Neufeld

The Law Society’s Ethics Committee recently released the following Professional Conduct Ruling as guidance for the profession. For your convenience, I’ve listed the ruling below but it can also be found in our Professional Conduct Rulings Database.

Date:   June 16, 2016
Cite as:   2016 SKLSPC 6
Code Chapter:   3.03
Code Heading:   Advertising Nature of Practice
Classification:   Advertising and Marketing
Practice Area:   General

Facts

It was brought to the Committee’s attention that a number of firms and members may be in violation of the “Advertising Nature of Practice” section of the Code of Professional Conduct, and its accompanying Commentary.  A summary of the section at issue [3.03(1)] reads that “A lawyer must not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Society”. The commentary to the section specifies that “A claim that a lawyer is a specialist or expert, or specializes in an area of law, implies that the lawyer has met some objective standard or criteria of expertise…an assertion by a lawyer that the lawyer is a specialist or expert is misleading and improper.”

Also in the Commentary: “[5] A lawyer shall not use the title ‘specialist’, ‘expert’, ‘leader’ or any similar designation suggesting a recognized special status or accreditation in an advertisement, public communication or any other contact with a prospective client.”  The Law Society of Saskatchewan does not currently have any mechanism for recognition or certification of “experts” or “specialists” of any sort, nor does it currently have any plans to implement any sort of certification program.

The examples considered by the Committee include instances where firms and/or lawyers have used the following terms on their websites: “Expertise”, “Industry Expertise”, and “Areas of Specialization”

The discussions centered around whether the terms “Expertise” and/or “Specialization” are capable of “suggesting a recognized special status or accreditation”.  It is noted that the exact terms “Expertise” and “Specialization” are not terms specifically prohibited under subsection [5] of the Commentary, though it does prohibit “‘specialist’, ‘expert’, ‘leader’ or any similar designation suggesting a recognized special status or accreditation…”, so it is not limited to only the specific terms listed.

Ruling

The rationale behind the Code restrictions is that a lawyer should not use a term in advertising that could mislead the public into believing they have an accreditation that, in fact, they do not have.  The Committee recognized that it is somewhat a matter of context for some words.

Section 3.03(1) and the associated commentary is targeting the concern that clients could be misled by advertising that suggests that a lawyer is a “specialist” or an “expert” in a field of law because those terms connote a recognized special status or accreditation.

Given that there is no express prohibition in section 3.03(1) and the Commentary from using the words “Expertise”, “Specialization” and/or “Specialize”, the question is whether the use of such words in advertisements is likely to lead to members of the public believing that a lawyer or law firm had been designated with a recognized special status or accreditation.

The Committee did not believe that either the term “expertise” or “specialization”, in the context in which they are generally used in lawyer advertising, would mislead a potential client into believing that a lawyer or law firm was designated with a recognized special status or accreditation.  The Committee believed that these terms suggested knowledge or experience in a field of law, not a special accreditation or status.  Thus, the Committee believed that these terms are distinguishable from such terms as “Specialist” or “Expert”, which connote a recognized status in an area of law.

However, the Membership is cautioned to monitor and consider carefully the usage of these terms and other similar descriptors in their advertising, as they may, in different contexts, result in an advertisement being off-side the Code restrictions.  If a complaint is received in relation to a specific Member’s advertisement, each will be considered on a case-by-case basis.  Members are advised to contact the Law Society for advice if they are concerned about the content of their specific advertisement.

 

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