With a strong tip of the metaphorical hat I never wear to Kim Ringler (a former President of APRL) who alerted many ethics lawyers to the news, I write today about a new ethics opinion from the New Jersey Committee on Attorney Advertising.
In Opinion 45, issued less than a week ago, New Jersey has softened their harsh position on whether a lawyer can hold themselves out as having “expertise” or being a “specialist” or “specializing” in an area of the law. New Jersey’s new opinion is candid about how developments in other states involving First Amendment challenges to advertising restrictions have resulted in its new stance. It is also fairly decent in terms of the commonsense nature of the analysis it provides.
The opinion explains that it has been prompted by a grievance filed about a law firm’s website in which the statement is made that the lawyers have “expertise” in tax law. (I’m willing to bet the shiniest of quarters that the grievance was filed by a lawyer and not a consumer.) The opinion provides a bit of insight into the firm and its main lawyer:
The firm concentrates its practice in tax law. The firm’s principal lawyer has an L.L.M. in tax, is the author of numerous publications on tax law, lectures on tax law, served as an attorney for the Internal Revenue Service, and has been practicing tax law for more than 30 years.
The opinion explains that New Jersey had previously imposed severe restrictions on the use of such terms unless a lawyer had been certified by the New Jersey Supreme Court or by an ABA-approved organization. (My own state has a somewhat similar black-letter rule in RPC 7.4 [though it does not seek to regulate the term “expert” or “expertise” and it only relies upon ABA-accredited groups.)
But, going forward… well … I’ll just let New Jersey speak for itself:
After revisiting the issue in light of recent out-of-state First Amendment decisions in attorney advertising, the Committee has now determined that lawyers may use the terms “expertise,” “specialize,” and “specialist” in advertising provided the terms are accurate and the lawyers can demonstrate the necessary education, training, and experience to substantiate the claim.
So, kudos where kudos are due, but the reason I say “a step” in the right direction rather than any sort of “leap” is that New Jersey couldn’t quite bring itself to commit fully to the common-sense outcome on this topic because it still is clinging to its prohibition on the use of the word “expert.” It does so by ending its opinion with the following sentence:
Only lawyers who are certified by the Supreme Court or an organization approved by the American Bar Association may call themselves “experts.”