August 25, 1992
A lawyer who has completed a program of certification administered by the American Bankruptcy Board of Certification may advertise as any of the following: (a) "certified by the American Bankruptcy Institute"; (b) "certified by the American Bankruptcy Institute as a specialist in consumer bankruptcy"; (c) "certified by the American Bankruptcy Institute as a specialist in business bankruptcy."
References: MRPC 7.1, 7.4; Peel v Attorney Registration and Disciplinary Commission of Illinois, 496 US 91; 110 S Ct 2281; 110 L Ed 2d 83 (1990).
A lawyer who has completed a program of certification administered by the American Bankruptcy Board of Certification asks about the propriety of advertising the certification or advertising as a specialist.
With regard to the first inquiry as to whether the lawyer may advertise as "certified by the American Bankruptcy Institute," in the Supreme Court decision Peel v Attorney Registration and Disciplinary Commission of Illinois, 496 US 91; 110 S Ct 2281; 110 L Ed 2d 83 (1990), it was held that a lawyer may advertise the lawyer's "certification." In Peel, the question was whether the lawyer could advertise the lawyer's certification by the National Board of Trial Attorneys ["NBTA"]. The Court examined NBTA's requirements to become certified and determined that given the nature of the organization, the certification requirements, and the fact that an organization stood behind the test and certification the lawyer could advertise that particular certification. The Court recognized that there are some unscrupulous lawyers who may hold themselves out as certified specialists when there is no qualified organization to stand behind that certification.
Based on the analysis in Peel, it should be noted that the American Bankruptcy Board of Certification requires that before a lawyer can be certified in this area of law, the lawyer must not only pass an examination but must have devoted at least 400 hours and 30 percent of the lawyer's practice to bankruptcy matters within the past five years. Applicants for the certification must also provide references from bankruptcy practitioners familiar with the applicants practice and meet continuing education requirements. Each applicant must have participated in at least 60 hours of continuing legal education in bankruptcy law during the three years immediately preceding the date of the application. Certification is for a period of five years.
Applicable to this analysis is MRPC 7.1, which states:
"A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. A communication shall not:
"(a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;
"(b) be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
"(c) compare the lawyers' services with other lawyers' services, unless the comparison can be factually substantiated."
MRPC 7.4 states:
"A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law."
In this case, the advertisement indicating that the lawyer is certified by the American Bankruptcy Institute would not be false, misleading, or fraudulent as long as the lawyer has passed the test and all necessary requirements required by the American Bankruptcy Institute. Moreover, based upon the qualifications to become certified in this bankruptcy area, a Michigan lawyer may advertise when the lawyer has been certified by a group which will stand behind the test and as long as the certification is not a sham. In this situation, it does not appear to be a sham.
The lawyer also questions whether the lawyer may advertise as "certified by the American Bankruptcy Institute as a specialist in consumer bankruptcy." Based upon the description of the certification process, the American Bankruptcy Board of Certification offers separate certification programs in two different areas: business bankruptcy and consumer bankruptcy. Moreover, the applicant for certification will be required to complete a day-long, written examination covering not only general bankruptcy or legal ethics, but depending on the certification the lawyer wishes to obtain, business or consumer bankruptcy law. Because the lawyer will only be certified in one of two areas based on which of the two tests the lawyer takes (either business bankruptcy or consumer bankruptcy) it would not be fraudulent, false, or misleading for the lawyer to indicate that the lawyer is certified in only one of these two areas if, in fact, this is the case.
Finally, the lawyer inquires as to whether the lawyer may advertise as "certified by the American Bankruptcy Institute as a specialist in business bankruptcy." The Peel decision also addressed whether a lawyer may advertise as a specialist. Again, using the same rationale as outlined in discussing whether the lawyer may advertise certification, the U.S. Supreme Court determined that the state may not completely ban statements that are not actually or inherently misleading such as certification as a specialist by bona fide organizations. The Court noted that information about certification and specialties facilitates the consumers access as to legal services and thus better serves the administration of justice. Peel, 110 L Ed 2d at 101.
In this instance, based upon the Peel decision, the lawyer may advertise as a specialist.
We note that while this opinion was being drafted the American Bar Association House of Delegates met and approved an amendment to ABA Model Rule of Professional Conduct 7.4, allowing lawyers to communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization or authority but only if:
"(1) such certification is granted by the appropriate regulatory authority or by an organization which has been approved by the appropriate regulatory authority to grant such certification; or
"(2) such certification is granted by an organization that has not yet been approved by, or has been denied the approval available from, the appropriate regulatory authority, and the absence or denial of approval is clearly stated in the communication, and in any advertising subject to Rule 7.2, such statement appears in the same sentence that communicates the certification."