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Thursday, April 24, 1997

Bar directors consider getting rid of "not board certified" disclaimer

By STEFANI G. KOPENEC

Associated Press Writer

DALLAS (AP) - As with most legal language, the wording in the fine print at the bottom of some lawyer advertisements is precise. Still, some argue it can be confusing to people looking for an attorney.

Those who want to get rid of the disclaimer that says a particular lawyer is "not certified by the Texas Board of Legal Specialization" may be making headway in their fight.

The State Bar Board of Directors' General Counsel Oversight Committee has unanimously recommended that the board take steps to eliminate Rule 7.04(b)(3) of the Texas Disciplinary Rules of Professional Conduct.

The board of directors is expected to vote on the recommendation April 25. If approved, it would be sent to the Supreme Court of Texas for submission to a referendum by the state's lawyers.

Most people see the disclaimer when scouring the telephone book or T.V. guide for legal representation. Bold headlines in ads shout: BANKRUPTCY ATTORNEY. AGGRESSIVE CRIMINAL ATTORNEY. SOCIAL SECURITY DISABILITY. DIVORCE.

Opponents argue the disclaimer helps protect consumers from attorneys who may attempt to mislead potential clients when they advertise that they practice in a certain area of the law, even if they don't use the terms "specialize" or "specialist."

"The disclosure has been something we have argued for over the years to ensure consumers have a right to know if someone really is a specialist or just puffing," said Tom "Smitty" Smith, executive director of the Austin office of Public Citizen.

Reggie James, director of the Southwest regional office of Consumers Union, said the wording should remain intact because the Legislature amended the Deceptive Trade Practices Act in 1995 to remove lawyers and other professionals from inclusion in the act.

"That's the only way that a consumer has of determining whether or not an attorney has the expertise they claim to have," James said.

But David Evans, chairman of the committee recommending the rule change, said consumers benefit from knowing in what areas a lawyer specializes and said the current advertising review process could prevent inflation of credentials.

"The disclaimer I think has a chilling effect on people simply publicizing areas of law in which they'll accept cases and that makes it harder for consumers to find a lawyer who will handle their kind of case," he said.

Hugh Lindsay, chairman of the State Bar's General Practice, Solo and Small Firms section, which is pushing the effort to abolish the rule, said the disclosure confuses people.

"We believe that John Q. Public believes with that disclaimer in there that we're not licensed to practice law, we're something other than a lawyer," he said.

It also benefits board-certified attorneys in the hunt for clients, he said.

Lindsay recalled one lawyer's football analogy in which he got 3 yards for advertising that he is board certified and 6 yards for the other guy having to advertise he's not.

"And (it's) one yard to go for a first down," he said.

Among those backing the no-disclaimer amendment is Bar President Colleen McHugh, a board certified labor and employment law specialist.

"I believe a lawyer ought to be able to explain the areas in which he accepts cases without implying special competence in an area, without misleading the public to the degree of skill the lawyer has," she said.

The Texas Board of Legal Specialization, which opposed repealing the disclaimer in 1994, adopted a resolution in February to remain neutral on the issue. However, it urges the bar's Advertising Review Committee and other bar commissions "to fully enforce disciplinary rules which protect consumers from misleading advertising."

About 10 percent of Texas' lawyers, or some 6,000, are board certified. That means they've been licensed a minimum of five years and have three years of concentration in their speciality field. Among other things, they have to have continuing legal education in their specialty and pass a six-hour written exam.

Lindsay says he's not against board certification, but just wants the disclaimer removed. He won't predict how the vote will go but knows it's only the first hurdle.

"It's a long, tedious process to get there," he said. Send a Letter to the Editor about This Story | Start or Join A Discussion about This Story
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