Vt. R. Prof. Cond. 7.4
Vt. R. Prof. Cond. 7.4
Comment
[1] Paragraph (a) of this rule permits a lawyer to indicate areas of practice in communications about the lawyer's services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted to so indicate. A lawyer is generally permitted to state that the lawyer is a "specialist," practices a "specialty," or "specializes in" particular fields, but such communications are subject to the "false and misleading" standard applied in Rule 7.1 to communications concerning a lawyer's services.
[2] Paragraph (b) recognizes the long-established policy of the Patent and Trademark Office for the designation of lawyers practicing before the Office. Paragraph (c) recognizes that designation of admiralty practice has a long historical tradition associated with maritime commerce and the federal courts.
[3] Paragraph (d) permits a lawyer to state that the lawyer is certified as a specialist in a field of law. In Vermont, because there is no appropriate regulatory authority that has a procedure for approving organizations granting certification, the rule requires that the lawyer clearly state such lack of procedure. 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. In order to insure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization, if any, must be included in any communication regarding the certification.
V.R.P.C. 7.4 is amended to conform to the changes in the Model Rule, except for Rule 7.4(d)(1), which retains the original provision of V.R.P.C. 7.4(c), adapted from the original Model Rule, that allows a lawyer to claim specialty certification by a named organization that has not been approved by the American Bar Association, provided that the claim clearly states that there is no procedure in Vermont for approval of such organizations. The amended Model Rule requires that the certifying organization be approved either by an appropriate state authority or by the American Bar Association.
In In re PRB Docket No. 2002-093, 2005 VT 2, 177 Vt. 629, 868 A.2d 709 (mem.), after a through review of the basis and scope of V.R.P.C. 7.1-7.4, the Court held that the PRB could have reasonably found that the phrase "INJURY EXPERTS" in an advertisement violated former V.R.P.C. 7.1(b) as creating an unjustified expectation of results that the lawyer could achieve and was not acceptable as a description of a specialty under V.R.P.C. 7.4 because that rule only allowed the use of the descriptive term "specialty"; further, any use of "specialist" or "specialty" must include a disclaimer of organizational certification to avoid violation of the "false and misleading" standard of V.R.P.C. 7.1.
The ABA Reporter's Explanation is as follows:
TEXT:
1. Caption: Add reference to "Specialization"
As Rule 7.4 deals with communication of both fields of law in which the lawyer practices and fields of law in which the lawyer claims to be a specialist, the current caption is underinclusive.
2. Paragraph (a): Move first sentence to new paragraph (a)
This change serves to separate the two basic subjects addressed by this Rule: communication of fields of law in which the lawyer practices, as permitted by paragraph (a), and communication of fields of law in which the lawyer claims to be certified as a specialist, as governed by paragraph (d). No change in substance is intended.
3. Paragraph (b): Move [former] paragraph (a) to new paragraph (b)
As revised, the grant of permission to lawyers who are admitted before the United States Patent and Trademark Office to use the designation "Patent Attorney" is no longer presented as an exception to the prohibition against claiming to be certified or recognized as a specialist, but rather is treated as a separate subject. This is because a claim to be a patent attorney is premised on admission to practice rather than on certification as a specialist and also entails more than a simple designation of an area in which the lawyer practices. No change in substance is intended.
4. Paragraph (c): Move [former] paragraph (b) to new paragraph (c)
As revised, the grant of permission to lawyers who engage in Admiralty practice to use the designation "Proctor in Admiralty" is no longer presented as an exception to the prohibition against claiming to be certified or recognized as a specialist, but rather is treated as a separate subject. This is because a claim to be a Proctor in Admiralty is not premised on certification but does seem to denote more than a simple designation of an area in which the lawyer practices. No change in substance is intended. [Note: Admission to the bar of a United States District Court still includes admission as "proctor in admiralty."]
5. Paragraph (d): Replace [former] paragraphs (c) and alternate (c) with new paragraph (d)
[As noted above, V.R.P.C. 7.4(d)(1) differs from Model Rule 7.4(d)(1).]
Paragraph (d) also contains a new requirement that the name of the certifying organization be clearly identified. This will enable prospective clients to make further inquiry about the certification program.
COMMENT:
[1] A minor change has been made to indicate that this Comment refers to paragraph (a) of the restructured Rule.
[2] The first sentence has been deleted because paragraphs (b) and (c) are no longer presented as exceptions to the prohibition against claiming to be certified as a specialist. Other minor changes conform the Comment to the changes in the Rule text.
[3] The Comment has been modified to conform with paragraph (d). . . .