Can a Kentucky lawyer send other lawyers a notice that he concentrates in a particular branch of law?

Plain-English summary

The committee was asked whether a lawyer who specializes in a branch of law may send notices of that fact to other attorneys. It answered with a qualified yes that turns on the purpose of the notice.

The committee traced the rule's history: Canon 46 of the old Canons of Professional Ethics permitted a lawyer to send a brief, dignified announcement of his availability as an associate in a particular branch of law, but only to local attorneys and his local legal journal. With the 1969 adoption of the Code of Professional Responsibility, that limitation was relaxed. Under DR 2-105(A)(3), a lawyer available to act as a consultant to or associate of other lawyers in a particular branch of law may distribute to other lawyers and publish in legal journals a dignified announcement of that availability, provided the announcement contains no representation of special competence or experience, is not distributed to lawyers more than once a calendar year, and otherwise observes the rule's form.

Because the inquiry did not state the notice's purpose or the type of specialty, the committee gave a conditional answer. If the announcement is to make known the lawyer's availability as a consultant to or associate of other lawyers, it sees no ethical conflict so long as the lawyer carefully observes the manner and form of DR 2-105(A)(3). But if the lawyer is not available for consultation or association, then, except as permitted by DR 2-105(A)(1) (the patent, trademark, and admiralty designations), any notice to other lawyers of specialization would be prohibited.

Currency note

This opinion was issued in 1973 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules, including the advertising and specialization rules (SCR 3.130 Rules 7.01 through 7.50). The flat bar on lawyer advertising reflected in this rule's era was later loosened by Bates v. State Bar of Arizona (1977) and subsequent decisions. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer tell other lawyers he handles a particular kind of case?

A: Qualified yes. Under DR 2-105(A)(3), the committee held a lawyer available as a consultant or associate to other lawyers may send and publish a dignified announcement of that availability, without claiming special competence and no more than once a year.

Q: Can a lawyer who is not seeking consult-or-associate work send specialization notices to other lawyers?

A: No. The committee held that if the lawyer is not available for consultation or association, such notices are prohibited except for the patent, trademark, and admiralty designations allowed by DR 2-105(A)(1).

Q: Could the announcement claim that the lawyer is especially experienced in the field?

A: No. The committee, applying DR 2-105(A)(3), held the announcement may not contain a representation of special competence or experience.

Background and rules framework

The opinion applied DR 2-105 of the Code of Professional Responsibility, the rule then governing how a lawyer could hold himself out as limiting his practice or being available as a consultant or associate in a branch of law, and traced it back to Canon 46 of the Canons of Professional Ethics. The modern analog is Model Rule 7.4 (communication of fields of practice and specialization), read with Model Rule 7.1 (communications about a lawyer's services must not be false or misleading).

Citations and references

Rules of Professional Conduct:

• DR 2-105 (Code of Professional Responsibility) and Canon 46 (Canons of Professional Ethics); modern analogs Model Rules 7.4 and 7.1

See also

• KBA Ethics Op. E-91: Consultant Availability Notice
• KBA Ethics Op. E-62: Firm Name Without Partnership
• KBA Ethics Op. E-84: Public Office on Letterhead

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-072.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-72
Issued: September 1973

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising Commission Regulations, before relying on this opinion.

Question:

May an attorney specializing in a branch of law send notices of this fact to other attorneys?

Answer:

Qualified Yes.

References:

DR 2-105

OPINION

Canon 46 of the old Canons of Professional Ethics permitted an attorney to notify local attorneys only, in a brief, dignified announcement, of his availability to act as an associate in a particular branch of the law or legal service. Publication of a notice was also permitted in his local legal journal.
With adoption of the new Code of Professional Responsibility in 1969, Canon 46 was modified in several respects. No longer is a notice, otherwise proper, confined to a local legal journal or to local attorneys. The applicable rule is found in DR 2-105. In material portion it provides:
(A) A lawyer shall not hold himself out publicly as a specialist or as limiting his practice, except as permitted under DR 2-102(A)(6) or as follows:
(1) A lawyer admitted to practice before the United States Patent Office may use the designation Patent Attorney, Patent Lawyer, Trademark Attorney, or Trademark Lawyer, or any combination of those terms, on his letterhead and office sign, and a lawyer actively engaged in the admiralty practice may use the designation Admiralty or Admiralty Lawyer on his letterhead and office sign
(3) A lawyer available to act as a consultant to or as an associate of other lawyers in a particular branch of law or legal service may distribute to other lawyers and publish in legal journals a dignified announcement of such availability, but the announcement shall not contain a representation of special competence or experience. The announcement shall not be distributed to lawyers more frequently than once in a calendar year, but it may be published periodically in legal journals.
The purpose of the notice and the type of specialty are not stated in the inquiry. If it is intended to announce the attorney's availability as a consultant to or associate of other lawyers in a particular area of the law, the Committee sees no ethical conflict in the use of an announcement to other attorneys, so long as it is undertaken with careful observance of the manner and form dictated by DR 2-105(A)(3). If on the other hand the attorney is not available for consultation or association with other attorneys, it is clear from the language of the rule that, except to the extent permitted by DR 2-105(A)(I), any notice to other lawyers of specialization would be prohibited.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.