28 September 2005

Law Practice Goofiness

It's rather odd when a law-school dean repeatedly commits an ethics violation in the course of a simple article on legal education and suggested reforms. Or, at least, skirts the line—all because he told the truth.

Dean Stephen J. Friedman of Pace University Law School in New York noted today that:

Would this approach produce real specialists? Of course not. Law school necessarily covers too much ground and students' desires to sample other areas should be satisfied. True specialization runs deeper than most law schools can or should reasonably teach.

"A Practical Manifesto for Legal Education" (28 Sep 2005) (emphasis added). Although I'm sure it was unintentional, Dean Friedman's statement points out an extremely stupid aspect of the ethics rules that hold in most of the country.

I am not a specialist. The Illinois Rules of Professional Conduct (which follow the model that holds in most of the nation) say so.

Except when identifying certificates, awards or recognitions issued to him by an agency or organization, a lawyer may not use the terms "certified," "specialist," "expert," or any other, similar terms to describe his qualifications as a lawyer or his qualifications in any subspecialty of the law.

Ill. R. Prof. Cond. 7.4(c). Although somewhat more convoluted, the rule in New York is the same:

"[A] lawyer or law firm shall not state that the lawyer or law firm is a specialist or specializes in a particular field of law, except…. [that a] lawyer may state that the lawyer has been recognized or certified as a specialist…

N.Y. Code Prof. Resp. DR 2-105(c).1

This is one of the goofiest, and least justifiable, rules of professional conduct. As Dean Friedman's article notes, the practice of law is specialized—and not just in large firms. Just as the so-called "general practitioner" who did a basic internship and then went out into the world of medicine to make his fortune has become an "internal medicine" or "family medicine" specialist (with a residency and board certification), the individual lawyer who is truly in "general practice" has largely disappeared—and certainly is not being so educated in law school. The purpose of these rules on statement of "specialty" is to avoid misleading the public about a given lawyer's qualifications. The problem is rather the opposite, though: not using the most-common colloquial term misleads the public, and puts more distance between the profession and the public's actual needs. "Concentrating in"? "Practice limited to"? The simpler language is better, clearer, and less likely to mislead as to an attorney's qualifications—especially since, in most states, the only recognized "specialty" is patent law (and that only because a federal institution requires that certification).

I'd suggest that the profession adapt itself to the twenty-first century—if it weren't so busy still trying to adapt to the last third of the twentieth century. Keeping current on how to communicate with the general public seems to have a rather lower priority than keeping out-of-state lawyers from competing with the local bar.

  1. As usual, the California rules are slightly different. Rule 1–400(D)(6) states that a lawyer may not claim to be a "certified specialist" without certification in California—which makes perfect sense—but is silent as to the word "specialist" without the qualified "certified."