Vol. 75, No. 3, March 2002

Don't misrepresent your expertise
Communicating Your Practice Area

by Dean R. Dietrich

Question

I limit my practice to a specific area of the law. Am I allowed to communicate that to the public and what are the risks if I do so?

Answer

Lawyers generally are allowed to communicate to the public regarding the services they provide provided the communication is not false or misleading. SCR 20:7.1 provides that a communication is false or misleading if it "(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (2) is likely to create an unjustified expectation about results the lawyer can achieve or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; (3) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated; or (4) contains any paid testimonial about, or paid endorsement of, the lawyer without identifying the fact that payment has been made..." The prohibition against false or misleading statements is the fundamental rule for communication about a lawyer's services; a lawyer may not identify that he or she is a specialist in a particular area of law unless certain criteria are met.

SCR 20:7.4 provides that "a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law." This general rule allows the lawyer to communicate regarding areas of focus in the lawyer's practice. The rule further provides that a lawyer shall not state or imply that the lawyer is a specialist except if: 1) the lawyer is admitted to engage in patent practice before the United States Patent and Trademark Office; 2) the lawyer is engaged in admiralty practice; or 3) the lawyer has been certified as a specialist in a field of law by a named organization or authority, but only if that organization or authority has been accredited by the American Bar Association. Thus, under this rule, a lawyer may not identify herself as a specialist unless the lawyer has been certified as a specialist by an organization that has been accredited by the American Bar Association and thereby allowed to identify specialists. Based upon these rules, the lawyer is permitted to identify to the public that she practices in specific areas or fields of law or that she will not perform services except in particular areas or fields of law, but she may not call herself a specialist or certified lawyer except in limited situations.

If the lawyer decides to limit his practice, the lawyer also must recognize that there are potential liabilities that result from that decision. In a 1995 Wisconsin Court of Appeals decision, Duffey Law Office S.C. v. Tank Transport Inc., 194 Wis. 2d 674 (Ct. App. 1995), the court was asked to identify "what standard of care applies in a legal malpractice action" in a case where the attorney held himself out to be an expert in a particular field of law. The court of appeals acknowledged the finding of the Wisconsin Supreme Court in Helmbrecht v. St. Paul Insurance Co., 122 Wis. 2d 94 (1985), in which it was held that "an attorney must be held to undertake to use a reasonable degree of care and skill, and to possess to a reasonable extent the knowledge requisite to a proper performance of the duties of his profession" and "is bound to exercise his best judgment in light of his education and experience." The court of appeals then went on to state:

"Specialization raises the question whether the standard of care devised for the 'ordinary' attorney suffices for the practice of law in modern time. The answer, with increasing frequency, is that an attorney undertaking a task in a specialized area of the law must exercise the degree of skill and knowledge possessed by those attorneys who practice in that specialty."

The court then found that an attorney should be held to the standard of the class to which he or she belongs. Because the attorney presented himself as an expert in a particular field, he must be held to a standard of care that is consistent with that representation. The matter was remanded to the trial court to determine if the lawyer violated that higher standard of care.

Attorneys must understand that they are allowed to identify the areas of focus in their legal practice but may not state that they are a specialist or certified as an expert in a particular field unless they meet one of the exceptions identified in SCR 20:7.4. If an attorney identifies her practice as limited to a specific area of law, however, she may be subject to a higher standard of care and performance based upon "the degree of skill and knowledge possessed by those attorneys who practice in the specialty area."

Wisconsin Lawyer