Opinion
82-16
Opinions delivered July 12, 1982
Petition to adopt the "Arkansas Plan of Specialization"; petition granted.
Prompted by the decision of the Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), this court adopted on July 17, 1978, sweeping amendments to the Code of Professional Responsibility and Canons of Judicial Ethics dealing with advertising by lawyers. (See Per Curiam of July 17, 1978, Arkansas Bar Association Petition in case 77-330, 263 Ark. 948.)
The amendments in part modified Disciplinary Rules 2-101 and 2-105, to read as follows:
Disciplinary Rule 2-101, Publicity:
(A) A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.
(B) In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may broadcast, subject to DR 2-103, the following information in the geographic area or areas in which the lawyer resides or maintains offices or in which a significant part of the lawyer's clientele resides, provided that the information disclosed by the lawyer in such publication or broadcast complies with DR 2-101 (A).
(1) (Omitted)
(2) One or more fields of law in which the lawyer or law firm practices or a statement that the lawyer or law firm specializes in a particular field of law practice, to the extent authorized under DR 2-105;
Disciplinary Rule 2-105, Limitation of Practice:
(A) A lawyer shall not hold himself out publicly as a specialist or as limiting his practice, except as follows:
(1) [This section deals with patent attorneys and is therefore omitted.]
(2) A lawyer who is certified as a specialist in a particular field of law or law practice by the Supreme Court of Arkansas or its designee may hold himself out as such, but only in accordance with the rules prescribed by that authority.
In 1978 the Arkansas Bar Association, through its House of Delegates, approved a plan of specialization in the practice of law which it termed the "Arkansas Designation Plan." On the petition of the Association's Committee on Specialization and Advertising, the plan was presented to this court for approval pursuant to our responsibility under Amendment 28 to our Constitution to "make rules regulating the practice of law and the professional conduct of attorneys at law."
That petition was denied because of doubts by the court that the plan would achieve its avowed purpose of serving the interest of the public in the informed selection of a lawyer and because of the likelihood the public could be led to assume a lawyer designated a specialist had been found to be a specialist in the best judgment of the Supreme Court. (See opinion In Re Amendments to the Code of Professional Responsibility and Canons of Judicial Ethics, November 26, 1979, 267 Ark. 1181, 590 S.W.2d 2.)
The committee is again petitioning for approval of a plan entitled the "Arkansas Plan of Specialization." (See Petition for the Adoption of the Arkansas Plan of Specialization, case number 81-239.) This plan was approved by the House of Delegates of the Arkansas Bar Association at its annual meeting in June 1981 and the committee was directed to petition this court for approval. After the committee's petition was filed, a petition was filed by attorneys John W. Hall, Jr., John F. Forster, Jr., and William R. Wilson, Jr., seeking approval on behalf of the lawyers who have been certified by the National Board of Trial Advocacy as "Criminal Trial Advocate" or "Civil Trial Advocate," or both, and the two proceedings have been consolidated in case number 82-16. As in the earlier case, we invited groups and individuals who were interested to file briefs amicus curiae, and The Association of Trial Lawyers of America, The International Academy of Trial Lawyers, the International Society of Barristers, and The National Association of Criminal Defense Lawyers responded to that invitation and collectively filed a brief which generally supports the petition of the National Board of Trial Advocacy. We find the Arkansas Plan of Specialization generally acceptable, subject to the comments and conditions which follow.
While neither of our objections to the earlier plan is entirely satisfied by the present proposal, we believe the time has come to move forward in this field, still somewhat unfamiliar to the legal profession as a whole. It has now been four years since the amendments permitting advertising were approved, and while a number of lawyers are engaging in advertising, the great majority of practicing lawyers are evidently reluctant to do so. It seems clear that the bar of Arkansas, represented by the Arkansas Bar Association, desires a plan of specialization and we are reasonably satisfied that the plan now proposed, if properly implemented and administered, would generally serve the interest of the public better than present practices. Thus, in spite of some uncertainties, we see no compelling reason to delay tentative approval, particularly in light of the recent decision of the Supreme Court of the United States, In re RMJ, 50 U.S.L.W. 4185, 42 CCH S.Ct. Bull. p. B1101 (dec'd Jan. 18, 1982). There the Court, while recognizing the power of the states to regulate lawyer advertising so as to protect the public from misleading practices, held unanimously that the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than necessary to further substantial interests of the state in protecting the public.
We believe there is still a potential for misleading the public, which may believe that because the Arkansas Plan of Specialization has been approved by us and the Board of Specialization appointed by us, lawyers designated by the Board under the plan bear the Supreme Court's endorsement as specialists, when in fact they do not. Both the Bates decision and the RMJ decision took notice of the likelihood of the public being misled by speciality advertising and suggested the need for disclaimers. Without deciding at this point whether a disclaimer should be mandatory, we mention this concern for consideration by the Board, suggesting the following disclaimer as a possibility:
The term "Board Recognized Specialist" means only that the lawyer so designated has met minimum requirements of study, training and experience in the particular field of specialization and should not be taken as an indication that the Supreme Court certifies to his or her competence in that field.
We recommend, therefore, that the Board study the advisability of an appropriate disclaimer.
Turning to the plan itself, we note that "The Plan of Specialization" attached to the petition (hereby made a part of this opinion by reference) is labeled by the petitioners as a "general framework" and that petitioners recognize that rules and regulations, "in detailed form, would be drafted, published, implemented and enforced by the Board of Legal Specialization." While we give general approval to the plan by this opinion, we construe our responsibility under Amendment 28 to our Constitution to be such that we must also give prior approval to such specific rules, regulations and policies as the Board may initially adopt in implementing this general plan of specialization. Therefore, we direct the Board, which we will name as soon as possible, to submit its specific proposals for implementation and administration to us prior to final adoption and execution.
We note with approval the fact that the plan recognizes the overall costs of administration are to be shouldered entirely by the participants, which is as it should be. From experience in supervising other aspects of the practice of law, we can expect the expense of fully implementing this ambitious program to be appreciable and though it is hoped the public will benefit from it, it is essential that the direct cost be borne only by participating lawyers and not by the public or the bar generally.
As to rights of appeal, we note that the brief section on appeal simply provides that an applicant can appeal to the Board from an adverse ruling of the committee and then to the Supreme Court. A number of questions occur to us: whether the Board hears the matter on a record or de novo; what standards of review are to be applied and to what extent the committee's discretion is exercised, and subject to review, in the approval of applicants. If advertising under the plan becomes widespread it is obvious that qualifying for specialization will be a matter of major importance to the practitioner and we can envision considerable dispute where the committee disapproves an applicant. The criteria now suggested by the plan seem to us to offer only limited objective standards of specialization, which will complicate the process of appellate review by the Board as well as for us, and will render the committee's task more difficult in passing on applicants. These issues, and others, will no doubt arise and require solution, including whether examinations will have to be resorted to and whether an independent appeals committee should be established.
Turning to the petition of those certified by the National Board of Trial Advocacy, we are in agreement with the petitioners, John W. Hall, Jr., John F. Forster, Jr., and William R. Wilson, Jr., that the criteria of the NBTA for certification are at least equal and probably more stringent than the criteria suggested by the plan. We see advantages to be gained by the Board's acceptance, where appropriate, of the certification of Arkansas lawyers by the NBTA as a qualifying standard under the plan. We believe, however, that certifications such as those by the NBTA should be made through the Board, not independently. Therefore, the petition of John W. Hall, Jr., John F. Forster, Jr., and William R. Wilson, Jr., that they be separately approved as specialists in the civil and criminal trial advocacy specialties is denied, but without implying that their credentials in those specialties are in any respect deficient. We refer them to the Board to be hereafter named.
The petition of the Arkansas Bar Association's Committee on Specialization and Advertising is conditionally approved subject to final approval of the specific plan of implementation to be submitted to us by the Board of Specialization.