Virginia Lawyers Weekly

The Virginia State Bar wants to loosen the ethical rule governing whether a lawyer can claim to be certified as a specialist.

The loosening stops well short of what some states are doing, but it’s still further than the Supreme Court of Virginia was willing to go in February 2006.

At issue is Rule 7.4(d) of the Rules of Professional Conduct, which allows lawyers to communicate that they have been “certified as a specialist in a field of law by a named organization.”

The rule then undercuts the effectiveness of the communication by requiring that it clearly state that “there is no procedure in the Commonwealth of Virginia for approving certifying organizations.”

The change, proposed by the VSB’s Bar’s Standing Committee on Lawyer Advertising and Solicitation, would allow an attorney to publicize certification by an organization accredited by the American Bar Association without a disclaimer so long as the certifying organization is clearly identified.

The VSB recommended the change to the Supreme Court in July 2005. The court asked the bar staff for information on the ABA’s accreditation procedures and then rejected any change to the rule after getting it.

SCOLAS members believe the standards imposed by the ABA on certifying organizations are stringent enough that the disclaimer is not necessary, said VSB Legal Ethics Counsel James McCauley.

As an example, the ABA has accredited the National Board of Trial Advocacy, which certifies attorneys as specialists in the areas of civil, criminal and family law trial advocacy.

Certification requires at least five years of practice, participation as lead counsel in at least 40 contested matters, including five jury cases, and 30 percent of the practice devoted to the specialty. Additional requirements include continuing legal education, a writing sample, peer review and a written exam.

NBTA certification was the subject of Peel v. Attorney Registration and Disciplinary Commission of Illinois, 110 S.Ct. 2281 (1990), a case in which a plurality of the U.S. Supreme Court rejected an effort to bar disclosure of the certification. Two concurring justices suggested in dicta that bar regulators could require a disclaimer similar to the language in the Virginia rule.

Peel and subsequent cases from lower federal courts “raise concerns about the constitutionality of the rule and the difficulty in enforcing it,” McCauley said.

In fact, an attorney who has served on SCOLAS publishes his NBTA certification on his Web site without the disclaimer, McCauley said.

The attorney has indicated that he will challenge the ruling in federal court if the VSB attempts to enforce the rule, McCauley said.

Among the groups that the ABA accredits are the organized bars of 13 states, which administer specialty certification on their own.

For now, however, “We did not think the bar or the court is interested in embarking on a statewide specialization plan,” McCauley said.

The VSB is asking for the submission of any comments on the proposed rule change by Dec. 17 to Karen A. Gould, Executive Director, Virginia State Bar, 707 E. Main St., Suite 1500, Richmond, VA 23219-2800.

The VSB Council will consider the rule at its meeting Feb. 28 at the Omni Richmond. If approved, the rule would go to the Supreme Court, which would have the final say.

LEOs under consideration

The council also will consider three legal ethics opinions at the Feb. 28 meeting.

SCOLAS is recommending an update to its compendium opinion, LEO 1750, on the subject of lawyer advertising that says “a lawyer’s use of the words ‘expert’ or ‘expertise’ in public communications amounts to a comparative statement and is therefore prohibited, unless the claim can be factually substantiated.”

The Standing Committee on Legal Ethics has drafted LEO 1844, which addresses the ethical duties of a guardian ad litem for a child to report an allegation of sex abuse when the report would reveal information received from the child and the child objects to the disclosure.

The committee said the GAL must conduct a thorough, independent investigation of the allegation.

“Through this independent investigation, the GAL assesses the risk of probable harm to the child,” the committee said. “That assessment then leads to the determination of whether the GAL has a duty, as an advocate for the child’s best interests, to disclose to the court or appropriate authority information necessary to safeguard the best interests of the child.”

The third opinion, LEO 1846, involves the membership in a lead-sharing organization, in which the members meet periodically to make presentations about their work and exchange referrals for business. Membership requires payment of a $500 fee.

Such arrangements “create undisclosed conflicts of interest, compromise a lawyer’s professional independence and risk violation of the solicitation rules,” the committee said in the proposed LEO.

Comments on the LEOs also should be sent to Gould by Dec. 17, with action on them scheduled for the Feb. 28 VSB Council meeting.

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