Ethics Opinion No. 315
Adopted December 15, 2000
QUESTION PRESENTED: Whether a lawyer, licensed by both the Supreme Court of Oklahoma and the Supreme Court of Texas, and who is board certified by the Texas Board of Legal Specialization, and who maintains offices both in Oklahoma and Texas, may advertise that he is board certified by the Texas Board of Legal Specialization in yellow page directories having Oklahoma circulation.
RESPONSE: Rule 7.4 of the Oklahoma Rules of Professional Conduct would appear to prohibit such advertising. However, several United States Supreme Court cases cast significant doubt on the constitutionality of that rule. Without an enforceable rule on that subject, an attorney would be bound only by Rule 7.1, which prohibits false and misleading advertising. Assuming the unenforceability of Rule 7.4, an attorney may elect to be guided by the requirements of the Texas rule on the subject and by the current version of ABA Model Rule 7.4. In that event, the attorney would present his Texas certification as “Board Certified, [area of specialization] Texas Board of Legal Specialization” and would include in his advertisement a statement that Oklahoma has no procedure for approving certifying organizations.
Over the last twenty years, the United States Supreme Court has invalidated on First Amendment grounds various restrictions on attorney advertising. The first case to do so was Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977). In Bates, the attorneys had formed a law firm to provide routine legal services at modest fees to persons of moderate incomes. 433 U.S. at 354. Concerning those services, the attorneys placed an advertisement in a daily newspaper offering “legal services at very reasonable fees” and listing fees for certain services. Id. The State Bar of Arizona suspended the attorneys for violating Disciplinary Rule 2-101(B), which banned nearly all attorney advertising. 433 U.S. at 355-56. The attorneys challenged their suspension, arguing, among other things, that the ban violated their First Amendment Rights. 433 U.S. at 356. The Supreme Court agreed with the attorneys.
The Court refused to permit blanket suppression of attorney advertising, holding that states may prohibit entirely only commercial speech that is false, deceptive, or misleading, or that proposes an illegal transaction. 433 U.S. at 383-84. The Court found that attorney advertising facilitates the process of intelligent selection of lawyers, assists in making legal services more fully available, and helps to assure informed and reliable decisions. 433 U.S. at 374-75. The Court noted that to assure that the public is sufficiently informed to enable it to place advertising in its proper perspective, “the preferred remedy is more disclosure, rather than less.” 433 U.S. at 375. Significant to the present question is the fact that the issue in Bates was limited to “whether lawyers . . . may constitutionally advertise the prices at which certain routine services will be performed.” 433 U.S. at 367-68. The Court made it clear it was not addressing Òthe peculiar problems associated with advertising claims relating to the quality of legal services.” 433 U.S. at 366. Further, the Court did not “foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the consumer is not misled.” 433 U.S. at 384.
A few years later, a unanimous Supreme Court further expanded the First Amendment protection afforded attorney advertising, holding that states may not place an absolute prohibition on certain types of potentially misleading advertisements. In Re R.M.J., 455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982). In that case, the Court considered Missouri’s version of DR 2-101(B), which had been revised after the decision in Bates. The new rule permitted some advertising, but restricted it to certain categories of information and areas of practice, and in some instances to certain specified language. 455 U.S. at 193. The rule also required that “[i]f one or more of these specific areas of practice are used in any advertisement, the following statement must be included . . . : ‘Listing of the above areas of practice does not indicate any certification of expertise therein.’” 455 U.S. at 195. The attorney was reprimanded for violating that rule by placing advertisements in local newspapers and the yellow pages that included information about the states in which he was licensed to practice law, that stated he was ‘Admitted to Practice Before THE UNITED STATES SUPREME COURT,” that contained a listing of areas of practice not on the approved list, and that omitted the required disclaimer of certification of expertise. 455 U.S. at 196-97. As in Bates, the attorney challenged the rule on First Amendment grounds, and again the Court ruled in his favor.
The Court held that a state’s definition of acceptable specialty designations is subject to the same limits imposed on any advertising. Thus, there must be a substantial state interest in the regulation, and the form of the regulation must be narrowly tailored to that interest. 455 U.S. at 203. The Court struck the portion of the state’s rule restricting attorneys from advertising specific areas of practice and from advertising licenses held in other states. 455 U.S. at 206-07. The Court also held that, absent evidence that the general public was actually misled, a state could not prohibit an attorney from advertising his admission to the Bar of the United States Supreme Court, despite recognizing that “this relatively uninformative fact is at least bad taste’ and “could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court.” 455 U.S. at 205.
Despite invalidating the advertising rule under the facts before it, the Court in In re R.M.J.reaffirmed the right of the states to regulate, under certain circumstances, commercial speech in the form of attorney advertising. The Court summarized the rule as follows:
Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive.
455 U.S. at 203. The Court also reaffirmed the notion that a state might require a warning or disclaimer to minimize the likelihood of consumer confusion or deception, 455 U.S. at 201, 203, although in this case the attorney made no challenge to the constitutionality of the disclaimer requirement. 455 U.S. at 204.
In 1985, the Supreme Court directly addressed the permissible scope of an attorney advertising rule that required disclaimer language. Zauderer v. Office of Disciplinary Council, 471 U.S. 626, 105 S. Ct. 2265, 65 L. Ed.2d 652 (1985). In Zauderer, the advertisement at issue was for contingent fee representation in Dalkon Shield litigation. 471 U.S. at 630-31. As it relates to the question presented here, the issue in Zauderer was whether the First Amendment allowed the State of Ohio to require a disclaimer in contingent fee advertisements that clients would be liable for costs even if their claims were unsuccessful. 471 U.S. at 633. The alleged violation was of DR 2-101(B)(15), which required that any contingent fee advertisement must “disclos[e] whether percentages are computed before or after deduction of court costs and expenses.” Id. The Ohio Office of Disciplinary Counsel interpreted that rule as requiring an attorney to state that clients would be liable for costs even if their claims were unsuccessful, although the rule itself contained no such explicit requirement. Id. The Court held that, as applied, the rule was constitutional, and it upheld an attorney’s public reprimand for violating Ohio’s interpretation of the rule. 471 U.S. at 652.
The Court’s decision was based upon its belief that the advertisement was potentially misleading and deceptive.
When the possibility of deception is as self-evident as it is in this case, we need not require the State to “conduct a survey of the . . . public before it [may] determine that the [advertisement] had a tendency to mislead.” The State’s position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client’s liability for costs is reasonable enough to support a requirement that information regarding the client’s liability for costs be disclosed.
471 U.S. at 652-53 (citation omitted).
Despite its conclusion that the disclaimer rule in that case was justified, the Court noted that there are limits to such a requirement.
We do not suggest that disclosure requirements do not implicate the advertiser’s First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.
471 U.S. at 651.
In a separate opinion in Zauderer, Justice Brennan spoke to two issues having particular relevance to the question presented here. First, he noted that the contingent fee contracts entered into as a result of the advertisement at issue were comprehensive and spelled out fully the terms of such an arrangement. 471 U.S. at 662. A state’s requirement that an attorney spell out those terms in an advertisement, he reasoned, could run afoul of the First Amendment.
If Ohio seriously means to require Zauderer “fully to disclose the[se] terms,” this requirement would obviously be so “unduly burdensome” as to violate the First Amendment. Such a requirement, compelling the publication of detailed fee information that would fill far more space than the advertisement itself, would chill the publication of protected commercial speech and would be entirely out of proportion to the State’s legitimate interest in preventing potential deception.
471 U.S. at 663-64.
Second, Justice Brennan raised a procedural due process concern, not raised by the attorney and thus not ruled on by the Court. The “liability for costs” disclaimer resulted from the Ohio Office of Disciplinary Counsel’s interpretation of the Disciplinary Rule, not from the rule itself. Justice Brennan was concerned that the attorney did not have sufficient notice of any such requirement.
Whether or not Ohio may properly impose the disclosure requirements discussed above, it failed to provide Zauderer with sufficient notice that he was expected to include such disclosures in his Dalkon Shield advertisement. The State’s punishment of Zauderer therefore violated basic due process and First Amendment guarantees.
Neither the published rules, state authorities, nor governing precedents put Zauderer on notice of what he was required to include in the advertisement. As the Court acknowledges, Ohio’s Disciplinary Rules do not “on [their] face require any disclosures except when an advertisement mentions contingent-fee rates which appellant’s advertisement did not do.”
471 U.S. 664-65 (citation omitted).
Justice Brennan concluded:
Although I agree that a State may upon a proper showing require a costs disclaimer as a prophylactic measure to guard against potential deception, and may thereafter discipline attorneys who fail to include such disclaimers, Ohio had imposed no such requirement at the time Zauderer published the advertisement, as the Court acknowledges. The State instead has punished Zauderer for violating requirements that did not exist prior to this disciplinary proceeding.
471 U.S. at 668.
The United States Supreme Court in 1990 directly addressed the First Amendment implications of an attorney’s representing himself as a certified specialist. Peel v. Attorney Registration and Disciplinary Com’n of Illinois, 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (1990). In Peel, the attorney’s letterhead identified him as being certified as a civil trial specialist by the National Board of Trial Advocacy. 496 U.S. at 93, 96. The attorney was publicly censured by the Illinois Supreme Court for that letterhead, which was alleged to be in violation of Rule 2-105(a) of the Illinois Code of Professional Responsibility.(FN1) The Court phrased the issue as “whether a lawyer has a constitutional right, under the standards applicable to commercial speech, to advertise his or her certification as a trial specialist by NBTA.” 496 U.S. at 100. The Court answered the question in the affirmative.
The Court began its analysis by noting that the facts stated on the letterhead were true and verifiable and that there was no contention that the stationery actually misled or deceived any potential client. 496 U.S. at 100-01. The Court distinguished a certification by the NBTA from an “unverifiable opinion of the ultimate quality of a lawyer’s work or a promise of success.” 496 U.S. at 101. The Court also distinguished such a certification from one “issued by an organization that had made no inquiry into petitioner’s fitness, or by one that issued certificates indiscriminately for a price,” in which case “the statement, even if true, could be misleading.” 496 U.S. at 102. The Court concluded that the letterhead was not actually misleading, and even assuming it was potentially misleading to some members of the public, “that potential does not satisfy the State’s heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information to the public.” 496 U.S. at 109. The Court specifically rejected the Disciplinary Commission’s reliance on the comments to the then-current version of American Bar Association Model Rule of Professional Conduct 7.4, which provided that “the terms ‘specialist’ and ‘specialty’ ‘have acquired a secondary meaning implying formal recognition as a specialist and, therefore, use of these terms is misleading’ in States that have no formal certification requirements.” 496 U.S. at 104.
The Court’s discussion concluded with the following comments:
To the extent that potentially misleading statements of private certification or specialization could confuse consumers, a State might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty. A State may not, however, completely ban statements that are not actually or inherently misleading, such as certification as a specialist by bona fide organizations such as NBTA. Cf. In re Johnson, 341 N.W.2d, at 283 (striking down the Disciplinary Rule that prevented statements of being “a specialist unless and until the Minnesota Supreme Court adopts or authorizes rules or regulations permitting him to do so”). Information about certification and specialties facilitates the consumer’s access to legal services and thus better serves the administration of justice.
496 U.S. at 110 (citation omitted).
In a concurring opinion, Justice Marshall expressed the opinion that a State could require certain disclosures necessary to ensure that the specialist claim is not misleading. 496 U.S. at 117. He recognized, however, that the precise boundaries of such a disclosure had yet to be drawn.
The precise amount of information necessary to avoid misunderstandings need not be decided here. The poles of the spectrum of disclosure requirements, however, are clear. A State may require an attorney to provide more than just the fact of his certification as a civil trial specialist by the NBTA. But a State may not require an attorney to include in his letterhead an exhaustive, detailed recounting of the NBTA’s certification requirements because more limited disclosure would suffice to prevent the possibility that people would be misled.
In his dissent, Justice White expressed concern that the Court’s decision “leav[es] the State powerless to act unless it drafts a narrower rule that will survive scrutiny under the First Amendment.” 496 U.S. at 118.
The Supreme Court addressed these issues again in 1994. Ibanez v. Florida Dep’t of Business and Prof’l Regulation, Bd. of Accountancy, 512 U.S. 136, 114 S. Ct. 2084, 129 L. Ed. 2d 118 (1994). In Ibanez, the attorney was also a Certified Public Accountant and a Certified Financial Planner. She had placed the designations “CPA” and “CFP” next to her name in her yellow pages listing and on her business cards and law offices stationery. 512 U.S. at 138. Although those designations were truthful, the Florida Board of Accountancy (“Board”) reprimanded her for engaging in “false, deceptive, and misleading” advertising. Id. Relying on its decision in Peel, the Court held that the attorney had a right to include these truthful representations in her statements to the public. 512 U.S. at 144-45.
The Board cited Peel and Zauderer for the proposition that it could require disclaimers to prevent potentially misleading communications to the public. 512 U.S. at 146. It contended that its required disclaimers(FN2) accomplished that result. Id. The Court was unmoved considering the “failure of the Board to point to any harm that is potentially real, not purely hypothetical . . . .” Id.
We express no opinion whether, in other situations or on a different record, the Board’s insistence on a disclaimer might serve as an appropriately tailored check against deception or confusion, rather than one imposing “unduly burdensome disclosure requirements [that] offend the First Amendment.” This much is plain, however: The detail required in the disclaimer currently described by the Board effectively rules out notation of the “specialist” designation on a business card or letterhead, or in a yellow pages listing.
512 U.S. at 146-47 (citation omitted).
In an effort to comply with the constitutional requirements established by these Supreme Court cases, the American Bar Association (“ABA”) redrafted its Model Rules of Professional Conduct concerning attorney advertisements. ABA Model Rule 7.4, addressing Communication of Fields of Practice, now reads in pertinent part as follows:
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer has been recognized or certified as a specialist in a particular field of law except as follows:
. . . .
(c) [for jurisdictions where there is no procedure either for certification of specialties or for approval of organizations granting certification] a lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization, provided that the communication clearly states that there is no procedure in this jurisdiction for approving certifying organizations. If, however, the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law, the communication need not contain such a statement.
ABA Model Rules of Professional Conduct 7.4 (4th ed. 1999).
In its comments to Rule 7.4, the ABA notes:
Peel casts doubt on the constitutionality of state specialization rules that are based on DR 2-105 of the predecessor Model Code, which permitted lawyers to claim specialization only if they are patent lawyers or if they are certified by a state-recognized authority. Model Rule 7.4 was revised in 1992 to comply with Peel’sholding.
Comments to ABA Model Rules of Professional Conduct 7.4 (4th ed. 1999).
Regarding the disclaimer requirement contained in Rule 7.4(c), the ABA notes that “Rule 7.4 was amended after Peel to require a lawyer to include a disclaimer if he or she has been certified by an organization that has not been approved by a regulatory authority in the lawyer’s jurisdiction.” Id.The ABA recognizes the limitation on the right to require such a disclaimer. “The disclaimer, however, may not be unduly burdensome, nor may a state impose a disclaimer requirement without showing that it advances a substantial state interest.” Id. (citing Ibanez; Zauderer).
The above authorities provide the framework within which Oklahoma’s Rules of Professional Conduct must be examined in order to respond to the question presented here. Rule 7.1 prohibits “false or misleading communication about the lawyer or the lawyer’s services.” Okla. Stat. tit. 5, Ch. 1, App. 3-A, Rule 7.1 (1991). The United States Supreme Court has consistently recognized the power of a state to enact rules to prohibit false and misleading advertising by attorneys, and thus there is no reason to question the enforceability of Rule 7.1.(FN3)
The same cannot be said about Rule 7.4 of the Oklahoma Rules of Professional Conduct, which more directly relates to the question presented. Rule 7.4 concerns “Communication of Fields of Practice” and prohibits communication of a specialty designation other than “Patent Attorney,” “Admiralty,” or a specialty certified by the Oklahoma Supreme Court.(FN4) Because the Oklahoma Supreme Court currently has no procedures for certifying specialists in any field, Rule 7.4 prohibits all specialty designations other that those involving patent and admiralty law. The Comment to Rule 7.4 states:
However, stating that the lawyer is a “specialist” is not permitted. This term has acquired a secondary meaning implying formal recognition as a specialist. Hence, use of the term “specialist” may be misleading unless the lawyer is certified or recognized in accordance with procedures prescribed by the Oklahoma Supreme Court.
Oklahoma’s Rule 7.4 would not likely survive a First Amendment challenge for several reasons. First, the language of Rule 7.4 is substantially similar to the Illinois rule invalidated under the First Amendment by the United States Supreme Court in the Peel case. Second, the comment to Oklahoma Rule 7.4 contains the “secondary meaning” justification rejected by the Peel Court. Third, Oklahoma Rule 7.4(3) contains language determined to be constitutionally infirm by the Minnesota Supreme Court in In re Johnson, 341 N.W.2d 282 (Minn. 1983), a case cited with approval by the Peel Court.(FN5)
The United States Supreme Court has clearly suggested that states may impose constitutional restrictions on attorney advertising under certain circumstances. However, if in fact a court were to decide that Oklahoma’s Rule 7.4 violates the First Amendment, then Oklahoma would be without a rule of professional conduct that would effectively impose such restrictions. In that event, the only surviving rule would be Rule 7.1, which prohibits ‘false or misleading communication about the lawyer or the lawyer’s services.” Thus, so long as an attorney’s claim of specialization was not either false or misleading, the attorney would be in compliance with Oklahoma’s enforceable advertising rules.
The Supreme Court also has consistently recognized that a state may require some form of disclaimer language to ensure that an attorney advertisement is not misleading or deceptive. While the limits of valid disclaimer language remain to be decided, it is clear the Court believes there is a line beyond which such disclaimer requirements would be unconstitutionally burdensome as constituting a chilling of protected commercial speech. No Oklahoma rule presently contains such a disclaimer requirement.
The question presented here relates specifically to board certification by the Texas Board of Legal Specialization (“TBLS”). Texas is one of several states that has its own certification plan(FN6) that requires objective criteria for certification. The Supreme Court of Texas authorizes the TBLS to certify attorneys in fourteen specific areas of law. Board certified Texas attorneys must meet specific requirements and pass a day long written examination.(FN7) The TBLS’s rigorous and comprehensive certification process seems consistent with those standards commended by the Court in Peel. See 496 U.S. at 94-96. The TBLS certainly is not “an organization that [makes] no inquiry into [an attorney’s] fitness, or one that issue[s] certificates indiscriminately for a price,” a certification from which the Court suggested might be misleading. Peel, 496 U.S. at 102. Thus, the substance of a truthful statement of TBLS certification would likely be determined to be within First Amendment protection.(FN8)
That leaves the manner of presentation of TBLS certification. Assuming no enforceable Oklahoma rule on the subject, an attorney may elect to be guided by the requirements of the Texas rule on the subject and by the current version of ABA Model Rule 7.4. The Texas rule provides:
[A] lawyer who has been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization in the area so advertised, may state with respect to such area, “Board Certified, [area of specialization] Texas Board of Legal Specialization.”
Texas Disciplinary Rules of Professional Conduct 7.04(b)(2)(i). The ABA Model Rule requires a disclaimer that “clearly states that there is no procedure in this jurisdiction for approving certifying organizations.” ABA Model Rules of Professional Conduct 7.4 (4th ed. 1999).(FN9)
While there may be no enforceable Oklahoma rule on legal specialty advertising, an attorney’s compliance with the applicable Texas rule and with the Model ABA rule would provide a basis for the attorney to argue that he was acting in good faith to comply with current guidelines on the subject.(FN10)
Several United States Supreme Court cases cast significant doubt on the constitutionality of Rule 7.4 of the Oklahoma Rules of Professional Conduct relating to legal specialty advertising. Without an enforceable rule on that subject, an attorney would be bound only by Rule 7.1, which prohibits false and misleading advertising. Assuming the unenforceability of Rule 7.4, an attorney may elect to be guided by the requirements of the Texas rule on the subject and by the current version of ABA Model Rule 7.4. In that event, the attorney would present his TBLS designation as “Board Certified, [area of specialization] Texas Board of Legal Specialization” and would include in his advertisement a statement that Oklahoma has no procedure for approving certifying organizations.(FN11)
1. The full text of Rule 2-105(a) of the Illinois Code of Professional Responsibility was as follows:
Rule 2-105. Limitation of Practice.
(a) A lawyer shall not hold himself out publicly as a specialist, except as follows:
(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation “Patents.” “Patent Attorney,” “Patent Lawyer,” or ‘Registered Patent Attorney’ or any combination of those terms, on his letterhead and office sign.
(2) A lawyer engaged in the trademark practice may use the designation “Trademarks,” “Trademark Attorney,” or “Trademark Lawyer,” or a combination of those terms, and a lawyer engaged in the admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty,” or “Admiralty Lawyer,” or a combination of those terms, in any form of communication otherwise permitted under Rules 2-101 through 2-104.
(3) A lawyer or law firm may specify or designate any area or field of law in which he or its partners concentrates or limits his or its practice. Except as set forth in Rule 2-105(a), no lawyer may hold himself out as “certified’ or a “specialist.”
2. The Board’s rules prohibited the use of any “specialist’ designation “unless accompanied by a disclaimer, made ” in the immediate proximity of the statement that implies formal recognition as a specialist”; the disclaimer must “stat[e] that the recognizing agency is not affiliated with or sanctioned by the state or federal government,” and it must set out the recognizing agency’s “requirements for recognition, including, but not limited to, educatio[n], experience[,] and testing.’” 512 U.S. at 146.
3. In a 1996 case, the Oklahoma Supreme Court applied Rule 7.1 to discipline an attorney for misrepresentations on his letterhead. State ex re. Oklahoma Bar Ass’n v. Leigh, 914 P.2d 661 (Okla. 1996). There, among other things, the attorney had placed the designation “CPA” on his letterhead, despite the fact that he had failed to pass the CPA examination. Significant to the discussion here, the court relied on Bates, In re R.M.J., Zauderer, and Ibanez in concluding that the attorney’s misrepresentations were not entitled to First Amendment protection. 914 P.2d at 666 n. 14.
4 The full text of Rule 7.4 of the Oklahoma Rules of Professional Conduct is as follows:
7.4 Communication of Fields of Practice
(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law or limits his practice to or concentrates in particular fields of law. A lawyer shall not state that the lawyer is a specialist except as follows:
(1) a lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation;
(2) a lawyer engaged in admiralty practice may use the designation “Admiralty,” “Proctor in “Admiralty” or a substantially similar designation; and
(3) a lawyer who is certified as a specialist in a particular field of law or law practice by the Supreme Court of the State of Oklahoma may hold himself out as such, but only in accordance with the rules prescribed by the Court.
5. Recall also that the ABA has concluded that “Peel casts doubt on the constitutionality of state specialization rules that are based on DR 2-105 of the predecessor Model Code, which permitted lawyers to claim specialization only if they are patent lawyers or if they are certified by a state-recognized authority.” See comments to ABA Model Rules of Professional Conduct 7.4 (4th ed. 1999).
6. For other states that have established certification plans, see Alaska Code Prof. Resp. DR 2-105 (1990); D. C. Ct. Rules, App. A., DR 2-105 (1989); Haw. Code Prof. Resp. DR 2-105 (1990); 111. Code Prof. Resp. Rule 2-105 (1989); Ind. Rule Prof. Conduct 7.4 (1990); Iowa Code Prof. Resp. DR 2-105 (1989); Ky. Sup. Court Rule 7.4 (1990-991); Mass. Sup. Judicial Ct. Rule DR 2-105 (1990); Md. Rule Prof. Conduct 7.4 (1990); Miss. Rule Prof. Conduct 7.4 (1989); Mo. Sup. Ct. Rule Prof. Conduct 7.4 (1990); Nev. Sup. Court Rule Prof. Conduct 198 (1990); Ore. Code Prof. Resp. DR 2-105 (1990); Pa. Rule Prof. Conduct 7.4 (1989); S. D. Rule Prof. Conduct 7.4 (1989); Tenn. Sup. Ct. Rule DR 2-105 (1988-1989); Va. Sup. Ct. Rule, pt. 6, ¤2, DR 2-104 (1989); Wash. Rule Prof. Conduct 7.4 (1990); W. Va. Rule Prof. Conduct 7.4 (1990); Wis. Sup. Ct. Rule Prof. Conduct 20:7.4 (1989).
8. Texas has determined that an advertisement of TBLS certification is not misleading under its Rules of Professional Conduct prohibiting false or misleading advertising. Rule 7.02(a)(5) provides that a communication is false or misleading if it “designates one or more specific areas of practice in an advertisement in the public media or in a written solicitation unless the advertising lawyer is competent to handle legal matters in each such area of practice.” The comment to that rule provides that “[b]ecause certification by the Texas Board of Legal Specialization involves special education, training, and experience, certification by the Texas Board of Legal Specialization conclusively establishes that a lawyer meets the requirements of Rule 7.02(a)(5) in any area in which the Board has certified the lawyer.”
9. Disclaimers containing similar language have been upheld in jurisdictions that have addressed the issue. See, e.g., Mississippi Bar v. An Attorney, 649 So. 2d 820 (Miss. 1995) (affirming discipline imposed against an attorney whose advertisement listed specific areas of practice but did not include the disclaimer required by Mississippi Rules of Professional Conduct, Rule 7.2(0) that Mississippi does not certify expertise in particular fields of law.)
10. An attorney faced with disciplinary action based upon an interpretation of the Oklahoma rules inconsistent with their current language may have available an argument based upon procedural due process, as suggested by Justice Brennan in the Zauderer case.
11. Note that ABA Model Rule 7.4 contains an exception to the requirement for qualifying language if a named organization has been accredited by the ABA. However, the Committee feels that even if an organization has been accredited by the ABA, where Oklahoma has no procedure for similar accreditation, a prudent attorney would communicate that fact to actual or prospective clients located in Oklahoma.