Lawyers' advertising is governed by RPC 7.1 which provides
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.What is "misleading" has long been he source of controversy. Comparative claims of effectiveness have been abjured. But eve though they are statements of fact claims of expertise and specialization have been prohibited by many states. One of the most restrictive - New Jersey - has now retracted its prohibitions. The state Supreme Court's Advertising Committee (itself a disciplinary committee) has now declared that lawyers's claims of expertise and specialization are permissible - if accurate and substantiated. But use of the term expert is limited to those certified by the State's Supreme Court or an organization approved by the American Bar Association. - GWC
OPINION 45 Committee on Attorney Advertising Attorney Advertisement Claiming “Expertise” and“Specialization” in an Area of Law(Superseding Opinion ) November 8, 2018
The Committee on Attorney Advertising received a grievance about a law firm website that states that the lawyers have “expertise” in tax law. 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 Committee on Attorney Advertising previously prohibited lawyers from stating that they are “experts,” have “expertise,” are “specialists,” or “specialize” in an area of law unless they are certified by the Supreme Court or an organization approved by the American Bar Association. Use of these terms by lawyers who are not certified was considered to be misleading, in violation of Rule of Professional Conduct 7.1(a). 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.
The Committee retains the restriction on the use of the term “expert” to lawyers who are certified by the Supreme Court or an organization approved by the American Bar Association. An “expert” is defined as a person “[h]aving special skill or knowledge derived from training or experience.” Webster’s Third New International Dictionary (1993). The Committee finds that a lawyer claiming to be an “expert” must be able to substantiate the claim with readily verifiable and objective criteria. Certification by the Supreme Court or an organization approved by the American Bar Association provides this objective verification of a lawyer’s “expert” status.
The Committee notes that lawyers can have “expertise” in an area of law without having been certified as an “expert” by the Court or an approved organization. The term “expertise” reflects special skill and extensive experience in an area of law. Further, a “specialist” is a person “who devotes or limits his interest to some special branch (as of an activity, business, art, or science).” Webster’s Third New International Dictionary (1993). Devotion to an area of law (as a “specialist” or a person who “specializes”) does not, of itself, necessarily imply greater ability than that held by others.
Accordingly, the Committee finds that the terms “expertise,” “specialist,” and “specialization,” if true, are not inherently misleading. Thus, their use, if accurate, is not prohibited under Rule of Professional Conduct 7.1(a).