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Paragraph (b) tracks ABA Model Rule 7.3(b) except that we have added as subparagraph
(b)(3) the prohibition in DR 2-104(C)(1)(a) against written communication within 30 days of an
accident.
Paragraph (c) imposes numerous restrictions not imposed by Model Rule in that ABA
Model Rule 7.3(c), which more simply requires that written solicitations sent to persons known to
be in need of legal service in a particular matter include the word “advertising material” on the
outside of the envelope.
There is no counterpart to Paragraph (d) in ABA Model Rule 7.3. The Committee thought
this issue needed to be addressed because of the increased use by firms of newsletters as a vehicle
for publicizing the firm’s practice.
There is no counterpart in the Proposed Rule to ABA Model Rule 7.3(D), which permits
lawyers to participate with a prepaid legal service plan which uses in-person or telephonic
solicitation to sell memberships or subscriptions in the plan so long as there is no solicitation of
persons known to be in need of legal services in a particular matter. This issue is addressed in
Proposed Rule 7.6 which deals comprehensively with intermediary organizations.
Made
On its own motion, the Committee recommends that the prohibition on in-person and live
telephone solicitation be extended to real-time electronic contact, such as occurs in a “chatroom” or
with instant messaging. The Committee believes that there is a sufficient risk of overreaching in
such situations to warrant this prohibition. The ABA Ethics 2000 Commission has similarly
recommended that real-time electronic solicitation be banned.
PROPOSED RULE 7.4
COMMUNICATION OF FIELDS OF PRACTICE
particular fields of law.
a specialist, specializes or is certified or recognized as a specialist in a particular field of law.
Trademark Office may use the designation "Patent Attorney" or a substantially similar
designation.
Supreme Court or its Commission on Continuing Legal Education and Specialization may
state that the lawyer “is certified as a specialist in [field of law] by the Tennessee Supreme
Court.”A lawyer so certified may also state that the lawyer is certified as a specialist in that
field of law by an organization recognized or accredited by the Tennessee Supreme Court or
its Commission on Continuing Legal Education and Specialization as complying with its
requirements, provided the statement is made in the following format:“[Lawyer] is
certified as a specialist in [field of law] by [organization].”
[1] This Rule permits a lawyer to indicate areas of practice in communications about the
lawyer's services. If a lawyer practices only in certain fields, or will not accept matters in a specified
field or fields, the lawyer is permitted to so indicate.
[2]However, a lawyer may not communicate that the lawyer is a “specialist,” practices a
“speciality,” “specializes in” a particular field, or that the lawyer has been recognized or certified
as a specialist in a particular field of law, except as provided by this Rule. Recognition of
specialization in patent matters is a matter of long-established policy of the Patent and Trademark
Office, as reflected in paragraph (c).
[3]Paragraph (d) permits a lawyer to communicate that he or she is a specialist or has been
certified or recognized as a specialist only when the lawyer has been so certified or recognized by
the Supreme Court or its Commission on Continuing Legal Education and Specialization. The
certification procedures are designed to require that the lawyer demonstrate higher degree of
specialized ability and experience than is suggested by general licensure to practice law.
See Rule 1.0(l)
Under paragraph (a), contrary to DR 2-101(C), no disclaimer of certification is required if
the lawyer does no more than communicate that the lawyer is practicing or limiting his or her
practice to particular fields of law.
Paragraph (d) permits lawyers who are certified as a specialist by the Commission on
Continuing Legal Education and Specialization to “beef up” their claim and state that they certified
by the Tennessee Supreme Court.
Paragraph (b) differs from ABA Model Rule 7.4 to the extent that it prohibits the lawyer
from claiming that he or she is a specialist or specializes in an area of law unless the lawyer is
certified as a specialist. The ABA Model Rule permits a claim that one is a specialist so long as the
claim is not false or misleading.
Paragraph (c) incorporates the ABA Model Rule exception for patent lawyers, but does not
include the exception for admiralty lawyers.
The Committee added language to Paragraph (b) more clearly prohibiting statements that a
lawyer is “certified or recognized as a specialist.”
At the urging of the Tennessee Trial Lawyers Association and a committee of the Board or
Professional Responsibility, the Committee amended paragraph (d) by adding the second sentence,
permitting statements that a lawyer is certified or recognized as a specialist by national accrediting
organizations approved by the Tennessee Supreme Court or its Commission on Continuing Legal
Education and Specialization.
Made
The Commission on Continuing Legal Education and Specialization has vigorously
defended the current requirement that lawyers who are not certified as a specialist include a
disclaimer to that effect whenever they advertise a practice area, and the Court has recently upheld
the constitutionality of the disclaimer requirement. The Commission, however, has acknowledged
that it has heard considerable opposition to the requirement, in particular the length of the required
statement and the burden in some cases of having to disclaim certification in multiple practice areas.
Thus, rather than recommend retention of the disclaimer requirement, the Commission has
recommended that the rule be amended to require that every advertisement by a lawyer state:
“Tennessee certifies attorneys in some areas. See www.cletn.comor call 615-741-3096.”
While supportive of the work of the Commission and its promotion of specialty
certification, the Committee persists in its belief that the current disclaimer requirement is ill-
advised, and that the best approach to protect the public from confusion about lawyer specialization
is to permit lawyers who are properly certified as specialists to say so in their advertising, while at
the same time prohibiting those who are not certified from saying eitherthat they are certified or
that they are specialists. The Committee does not support the Commission’s suggested alternative.
In the Committee’s judgment, the required statement does not provide potential clients with
required statement should properly be viewed as a part of an institutional advertising campaign to
educate the public about speciality certification programs. In and of itself, there is nothing wrong
with such an educational initiative. The Committee believes, however, that it would be unwise to use
the Rules of Professional Conduct to require those lawyers who have chosen to exercise their
constitutional right to advertise to carry out this campaign on behalf of the Commission. If such a
campaign is needed, its cost should be borne by all lawyers, not just those who advertise. Also, if
more public education about lawyer specialization is needed, the Committee would suggest that
other forms of institutional advertising might be more effective than the statement proposed by the
Commission.
PROPOSED RULE 7.5
FIRM NAMES AND LETTERHEADS
Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection
with a government agency or with a public or charitable legal services organization and is not
otherwise in violation of Rule 7.1.
jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional
limitations on those not licensed to practice in the jurisdiction where the office is located.
communications on its behalf, during any substantial period in which the lawyer is not actively and
regularly practicing with the firm.
that is the fact.
[1]A firm may be designated by the names of all or some of its members, by the names of
deceased or retired members where there has been a continuing succession in the firm's identity or
by a trade name such as the "ABC Legal Clinic." A lawyer or law firm may also be designated by a
distinctive website address or comparable professional designation. Although the United States
Supreme Court has held that legislation may prohibit the use of trade names in professional
practice, use of such names in law practice is acceptable so long as it is not misleading. If a private
firm uses a trade name that includes a geographical name such as "Springfield Legal Clinic," an
express disclaimer that it is a public legal aid agency may be required to avoid a misleading
implication. It may be observed that any firm name including the name of a deceased partner is,
strictly speaking, a trade name. The use of such names to designate law firms has proven a useful
means of identification. However, it is misleading to use the name of a lawyer not associated with
the firm or a predecessor of the firm.
[2]Paragraph (c) does not require a change in a law firm’s name or letterhead when a
member of the firm interrupts his or her practice to serve, for example, as an elected member of the
Tennessee General Assembly so long as the lawyer reasonably expects to resume active and regular
practice with the firm at the end of the legislative session. Such a hiatus from practice is not for a
substantial period of time. If, however, a lawyer were to curtail his or her practice and enter public
service for a longer period of time, or for an indefinite period of time, the lawyer’s firm would have
to alter its name and letterhead.
[3]With regard to paragraph (d), lawyers sharing office facilities, but who are not in fact
partners, may not denominate themselves as, for example, "Smith and Jones," for that title suggests
partnership in the practice of law.
“Substantial”See Rule 1.0(l)
Unlike the Proposed Rule, which permits the use of trade names so long as they are not
misleading, DR 2-102(B) provides that "[a] lawyer in private practice shall not practice under a
trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under
such name, or a firm name containing names other than those of one or more of the lawyers in the
firm, except that . . . a firm may use as . . . its name[,] the name or names of one or more deceased
or retired members of the firm or of a predecessor firm in a continuing line of succession."
The Proposed Rule does not include the requirement in DR 2-102(A) that professional
cards, letterheads, or similar professional notices, or devices, be “dignified.”
Paragraph (b) is comparable in substance to DR 2-102(D), which provides that a
partnership "shall not be formed or continued between or among lawyers licensed in different
jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and
in other permissible listings make clear the jurisdictional limitations on those members and
associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name
may be used in each jurisdiction."
Paragraph (c) is comparable to DR 2-102(B) except that it does not contain the specific
exemption for service in the General Assembly. The Committee’s proposal addresses that issue in
the Comment.
There is no counterpart in the Proposed to DR 2-102(E) that prohibits lawyers who are
engaged both in the practice of law and another profession or business from so indicating on their
letterheads, office signs or professionalism or from indicating that they are a lawyer in any
publication in connection with their other profession.
Made
1. To accommodate use by lawyers and law firms of the Internet, the Committee has added a
new sentence to Comment [1] to clarify that a law firm or lawyer may use distinctive website
addresses or other comparable professional designations.
2. The Board of Professional Responsibility has recommended the deletion of Rule 7.5 and
has more particularly voiced its opposition to permitting law firms to use trade names. The
Committee does not believe that trade names are any more inherently misleading than law firm
names that include the names of deceased or retired lawyers. Indeed, such firm names are trade