Opinion
No. 90-2086
Submitted November 28, 1990 —
Decided April 3, 1991.
Attorneys at law — Misconduct — Public reprimand — Advertising in telephone directory as "specializing in" the field of medical malpractice.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 89-66.
Relator, Trumbull County Bar Association, filed a complaint against respondent, Michael D. Joseph, on December 18, 1989, charging him with one violation of DR 2-105(A)(5) for using the terminology "specializing in" the field of medical malpractice in a telephone directory advertisement. DR 2-105(A)(5) prohibits attorneys from advertising themselves as specialists except in the areas of patent law, trademark law, and admiralty law, or when certified in a particular area of law by an authority having jurisdiction under state law to make the certification. Respondent admitted the words "specializing in" appeared in his advertisement in a Trumbull County telephone directory, but denied placing the words in the advertisement himself. He further denied that the use of the term "specializing in" violated DR 2-105(A)(5).
At the hearing before a panel of the Board of Commissioners on Grievances and Discipline of the Supreme Court on March 30, 1990, respondent argued that the wording of the advertisement was discussed via telephone with an advertising representative of Ameritech, that he did not authorize the words "specialized in" to be placed in the advertisement, and that he overlooked the words when he approved the advertisement, thus making his conduct an act of negligence and not one of willfulness. Respondent testified that his background in the field of medical malpractice at the time the ad was placed consisted of having handled "a couple" of cases, having attended two medical malpractice seminars, and having frequently visited the medical library, but that he was planning to develop a focus in that area. He also testified that he now spends most of his time doing medical malpractice cases.
Prior to the hearing panel's decision, the United States Supreme Court issued a decision in Peel v. Attorney Registration Disciplinary Comm. of Illinois (1990), 495 U.S. ___, 110 L. Ed. 2d 83, 110 S. Ct. 2281. Peel addressed the constitutionality of a disciplinary rule of the Illinois Code of Professional Responsibility as enforced against an Illinois attorney who had been issued a certificate in civil trial advocacy from the National Board of Trial Advocacy and who had advertised his certification.
On August 22, 1990, the panel ordered respondent and relator to file supplemental memoranda based on how the Peel decision affected respondent's case. Only relator filed a supplemental memorandum, distinguishing the unconstitutional Illinois disciplinary rule as much more restrictive than DR 2-105(A)(5).
The panel expressed misgivings about whether DR 2-105(A)(5) is totally unobjectionable under Peel, but distinguished the case factually because respondent's use of the term "specializing in" was not based on any objective standards. Moreover, it found that the state has a substantial interest in protecting the public from being misled concerning an attorney's level of expertise in a particular field.
The panel further found that respondent had willfully violated DR 2-105(A)(5) by authorizing the advertisement to be published. It acknowledged that respondent subsequently removed the improper wording from his advertisements, and it recommended a sanction of public reprimand. The board adopted the findings and recommendation of the panel, one member dissenting, and also recommended that costs of the proceedings be taxed to respondent.
Kevin P. Murphy and Catherine J. Howley, for relator.
Michael D. Joseph, pro se.
We agree with the findings of fact and recommendation of the board. By authorizing placement of the ad, respondent committed a willful violation of DR 2-105(A)(5). That rule prohibits use of the term "specialize" except under proper certification or in the patent, trademark or admiralty bars. We believe that "specialize" connotes formal recognition. The American Bar Association agrees. In its Comment to Rule 7.4 of the ABA Model Rules of Professional Conduct, it states:
"* * * [The terms] `specialist,' practices a `specialty,' * * * [and] `specializes in' * * * have acquired a secondary meaning implying formal recognition as a specialist and, therefore, use of these terms is misleading. * * *" Codes of Professional Responsibility (2 Ed. 1990) 382.
In this case respondent's use of the term was clearly misleading in fact because it did not derive from formal recognition, or even from experience, but from his personal aspirations. We note further that under DR 2-105(A)(5) respondent may state that his practice "consists in large part or is limited to" medical malpractice cases whenever these assertions can be made truthfully. Accordingly, we find no overbreadth in the rule with respect to respondent.
Respondent is hereby publicly reprimanded. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
DOUGLAS, J., dissents.
I would dismiss the charge.