A Very Special Clarification From Ontario’s Law Society Tribunal: Lawyers Can Advertise That They “Specialize” Without Being a “Specialist”

Rule 4.3-1 of Ontario’s Rules of Professional Conduct states “A lawyer shall not advertise that the lawyer is a specialist in a specific field unless the lawyer has been so certified by the Law Society.” Similar rules are in place in other jurisdictions, although the precise language varies.[1]

The reason for the rule is straightforward. The LSO has a Certified Specialist program, intended to assist the public in determining which lawyers “have met established standards of experience and knowledge requirements in one or more designated areas of law and have maintained exemplary standards of professional practice.”[2] The LSO determined that in order to ensure the title of “specialist” is meaningful and useful to the public, it needed to be restricted to those who were certified as “specialists” by the regulator.

But for the past several years, the Law Society of Ontario has taken the position that this rule not only precludes a lawyer from advertising that they are “a specialist”, as the Rule expressly provides, but also precludes a lawyer from stating in any marketing that they specialize in certain areas of practice (for example, by stating on their website that the lawyer “specializes in personal injury law” because the lawyer’s practice is dedicated exclusively to that practice area).

This interpretation has created some controversy, for good reason. Using the verb “specialize” is one way to inform members the public that a lawyer’s practice concentrates in a particular practice area—for instance, to inform potential clients that one practices exclusively in the area of criminal law or family law, so they know the lawyer is not simply dabbling. Numerous prominent lawyers (including some benchers and LSO Tribunal panel members) have noted in their online profiles that they “specialized” in a given practice area for precisely that reason.

Lawyers rightly bristled at the suggestion that they could find themselves with a disciplinary record for having chosen the wrong synonym to describe their preferred practice area(s) in their online bio—particularly when so many other lawyers did the same thing, but were lucky enough to not be on the LSO’s radar.

Two recent cases grappled with the appropriate interpretation of Rule 4.3-1.[3] Now, at long last, this interpretive dispute has been resolved by the Law Society Tribunal Appeal Panel, which has unanimously confirmed that a statement that a lawyer or law firm “specializes” in a particular area does not breach Rule 4.3-1 (provided, of course, that it is accurate to suggest that the lawyer law firm does indeed concentrate their practice in that area). In Rothman, the Appeal Panel affirm the following reasons of the Hearing Panel:

The noun “specialist” describes a lawyer or other professional with special expertise or training in a particular skill or area of practice. It is often accompanied by a certification. The verb “specialized” is not typically associated with a designation. It is commonly used to indicate an area in which the firm or business does most of its work. The verbs “focused” or “concentrated” would be alternatives.

Members of the public would most likely be unaware of the certified specialist designation and would understand that a firm that specialized in real estate concentrated its practice in that area.[4]

The Appeal Panel further observed that (a) although previous decisions criticized the use of the word “specialize” on the basis that it denotes lawyers who have obtained “special” training, in fact, training is not a requirement for the LSO’s specialist certification; and (b) there is nothing in Rule 4.3-1 to alert lawyers that they are prohibited from advising the public that they specialized in a particular field.

The Appeal Panel’s decision provides much-needed clarity to lawyers and law firms (and their marketing departments) who seek to promote their services to the public while remaining compliant with the Rules of Professional Conduct. It should be noted, however, that the decision observed that it was bringing this debate to a close “at least at the Tribunal level”, stating: “We will leave Convocation to revisit the issue as a matter of policy if it wishes to achieve a different result.”[5] Hopefully, Convocation shares my view that it has more important matters to deal with than the niceties of verbs and nouns in lawyer advertising.

____________________

[1] For instance, in British Columbia, the Code is more specific, stating that lawyers must not “use the title “specialist” or any similar designation suggesting a recognized special status or accreditation” [emphasis added], while New Brunswick’s Code makes explicit that “The marketing of legal services by a practising lawyer or law firm shall not use the words “specialist”, “specializing”, “expert”, “expertise”, or synonyms thereof.”.

[2] See https://lso.ca/lawyers/about-your-licence/manage-your-licence/certified-specialists and https://lso.ca/public-resources/your-law-ontario-law-simplified/certified-specialist-program.

[3] See Law Society of Ontario v. Goldfinger, 2018 ONLSTH 103 at paras 60-62, var’d Law Society of Ontario v. Goldfinger, 2020 ONLSTA 3 at paras 45-75 (majority) and 101-110 (dissent); Law Society of Ontario v. Rothman, 2019 ONLSTH 75 at paras 147-150, aff’d Law Society of Ontario v. Rothman, 2021 ONLSTA 13 at paras 37-57. The author acted as counsel to the licensee in Rothman.

[4] Law Society of Ontario v. Rothman, 2021 ONLSTA 13 at para 40, aff’g Law Society of Ontario v. Rothman, 2019 ONLSTH 75 at paras 149-150.

[5] Law Society of Ontario v. Rothman, 2021 ONLSTA 13 at para 41.