Lawyers are distinct from other professionals like medicine in that the license provided is inherently broad, and limited only by the restrictions the lawyer places upon themselves.
For example, the Model Code states at 3.1-1 that a competent lawyer “means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement…” Those knowledge, skills, and attributes can be defined or applied in many different ways, especially where a lawyer is working with other lawyers who have different or complementary knowledge, skills, and attributes.
Lawyers frequently practice in multiple areas of law, and over time may in fact become competent in a wide variety of different areas, depending on the type of task at hand. The focus of practice is therefore far less enshrined than physicians who may “specialize” in a specific area of medicine.
After Ontario ceased the appointment of Queen’s Counsel in 1985, the Law Society of Upper Canada introduced a Certified Specialist program in 1988, intended to signal to the public that the lawyer is “recognized and experienced in his or her field of law and who has met high standards.” The program was not considered a success though, and in 2007 was contemplated to be discontinued, as a very low percentage of the profession bothering to attempt to obtain the designation. This relatively low participation rate continues to this day.
The creation of this program also created a tension with how lawyers market and advertise themselves to the public, especially where they have chosen not to participate in the Certified Specialist program. In 2016, the law society became increasingly concerned about the use of social media and other forms of mass communication, and the potential to mislead the public.
In 2016, the law society handled a complaint in Law Society of Ontario v. Goldfinger about a lawyer who advertised in a newspaper that his firm specialized in “serious motor vehicle accidents, brain injuries, spinal cord injuries, slip and fall claims, disability claims, and accident benefit claims.”
None of the lawyers in the firm were Certified Specialists in Civil Litigation with the law society. Most lawyers who practice in this area in Ontario are not Certified Specialists. But the Rules of Professional Conduct state,
The law society’s Bylaw 15 also states at s. 20(2) that a licensee who is not a certified specialist,
…shall not use any designation from which a person might reasonably conclude that the licensee is a certified specialist.
Those who are a Certified Specialist may use the post-nomial “C.S.,” or Certified Specialist [area of law in which certified as specialist].
The Law Society Tribunal did not find in 2019 that these marketing efforts would mislead an objective potential client. For all the law society’s efforts to make the program more widely adopted, the public was unlikely to associate the word “specialize” with a Certified Specialist program that they had never even heard of.
However, the majority of the Appeal Division allowed the appeal on this issue, stating,
 While it may have been “literally accurate” for Mr. Goldfinger to advertise that he specialized in various aspects of personal injury litigation, we find that the panel erred in concluding that his use of the word “specialize” does not support a finding of misconduct.
 With respect, the hearing panel asked itself the wrong question, by focusing on whether the advertisement was literally accurate and truthful (the test under Rule 4.2-1), rather than also carefully considering whether it complied with Rule 4.3-1 (the Rule about advertising as a specialist). It failed to inquire whether a prospective client seeking a lawyer “might reasonably conclude” that the lawyer was a certified specialist.
 Under the Society’s certification regime, lawyers (and only lawyers) are entitled to advertise that they are “certified specialists” if they have been certified through the Law Society’s Certified Specialist program under By-Law 15 of the Act. Counsel for the Law Society submits that the drafters of Rule 4.3–1 reserved the use of any form of the word “specialist” for lawyers who have been certified as specialists.
 The Law Society therefore submits that the use of the term “specialist” and its cognates (words derived from the verb “specialize”) should be restricted to lawyers who have received certification under the program, as a matter of clarity, consistency and transparency.
The test for this analysis is found in Law Society of Upper Canada v. Zappia. It is based on the Supreme Court of Canada’s decision in Richard v. Time Inc., Mattel, Inc. v. 3894207 Canada Inc., and the test for confusion under s. 6 of the Trademarks Act. These cases employ an general impression analysis using the literal meaning of the words, from an objective perspective of the “ordinary hurried purchaser.”
The Appeal Division in Goldfinger also referenced another complaint in Law Society of Ontario v. Rothman, who also advertised that his firm “specialized” in real estate transactions, but had not received the Certified Specialist designation for real estate from the law society. The Hearing Division dismissed this complaint, stating,
 The Law Society says Mr. Rothman breached the rule by advertising that the firm “specialized” in real estate transactions when he had not been designated as a “certified specialist” by the Law Society. Mr. Rothman explained that 90% of the firm’s practice is real estate and “specialized” was used in that context.
 We find that the statement that the firm specialized in real estate is accurate and does not breach the rule. Mr. Rothman did not advertise that he was a “specialist” in real estate, but rather that the firm “specialized” in real estate. 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.
The Appeal Division in Goldfinger rejected this analysis, stating,
 …Although lawyers and paralegals are alert to nuances of meaning, we are not persuaded that an ordinary hurried member of the public would clearly understand the difference between a practitioner whose ad says they “specialize” in a certain area of law, and one whose ad says they are a “specialist” or “certified specialist.”
 We agree, as observed in Rothman, that many members of the public would likely be unaware of the certified specialist designation. Moreover, many injured clients are dealing with medical “specialists” whose qualifications and designations are beyond question.
 A traumatized person seeking legal services for serious or catastrophic injuries might not be able to review or respond to this advertising with the perspective of a careful and diligent consumer. Indeed, an ordinary hurried member of the public might reasonably conclude that Mr. Goldfinger was a specialist. Only relatively sophisticated, careful and diligent readers would understand that someone who specializes is not necessarily a “specialist,” and that to be a legal “specialist” a lawyer must be “certified.”
 We find that a harmonious reading of both the paralegal and lawyer Rules of Professional Conduct, in the context of the scheme and purpose of all the Rules, requires that the language of each set of Rules be interpreted in a consistent manner. Therefore, neither group should advertise “specialization” in the absence of certification.
The Appeal Division interpreted the term “specialists” or those who “specialize” as those who have obtained “special” training that allows them to use that designation,
 Legal language requires precision, and it is in the interests of both the profession and the public that it be used precisely.
They relied on the Court’s decision in Richard, discussing the risk of confusion by consumers under the Consumer Protection Act.
However, a minority of the Appeal Division provided a contrary perspective,
 We do not agree. A lawyer looking to the Rules for guidance on advertising would understand that he or she was prohibited from advertising that he or she was a specialist unless so certified. There is nothing in the Rule or the commentary that would alert lawyers that they couldn’t tell the public that the firm specialized in certain types of personal injury cases. There is nothing to tell lawyers that they are obliged to interpret this particular rule in the context of the entire section on misleading advertising, as the majority suggests.
 Even if a purposive reading was required, we agree with the hearing panel that the ordinary purchaser of legal services in the personal injury context would not be misled by a law firm saying that it specializes in a particular type of personal injury. The context of the advertisement suggests that the firm focuses or concentrates on cases with certain types of injuries which, as the hearing panel in this case found, is true. In Rothman, the hearing panel similarly concluded that a real estate firm advertising it specialized in real estate was being accurate. Further, to the extent that a member of the public might be aware of the Law Society’s certified specialist program, we do not accept that the person would be misled, deceived or confused by a firm advertising that it specializes in an area of practice in which the Law Society does not certify specialists.
 We agree with the majority that legal language requires precision, and that it is in the interests of both the profession and the public that it be used precisely.
 In the case of the Rules of Professional Conduct, it is important to the profession that the words of the Rule 4-3.1 be stated with as much precision as possible. The consequences for lawyers who are prosecuted for breach of an imprecise rule such as this are significant. If the panel accepts the Law Society’s interpretation of the Rule, even if the penalty is a reprimand, the lawyer will have a professional misconduct finding on his or her record forever. Such a finding may well deter a client from retaining the lawyer or preclude the lawyer from considering a career in public service or on the bench.
 The Law Society may have good public policy reasons for prohibiting use of all forms of the word specialist, but there is no reason that Rule 4.3-1 can’t be clear. Unlike the other rules on misleading advertising, Rule 4.3-1 lends itself to specificity. If the Law Society wants to exclude use of all forms of the word “specialist,” it should say so in the Rule or the commentary.
The Law Society Tribunal Appeal Division recently released its decision in Rothman, dismissing the appeal, and upholding the Hearing Division’s decision. This was the first of any of these decisions above to apply Vavilov, and they stated,
 This question raises an extricable, narrow and fairly simple legal issue that has drawn a stark division in the Tribunal’s jurisprudence. In our view, it is worthwhile to bring this debate to a close, at least at the Tribunal level, and to provide what we believe to be the correct answer. We will leave Convocation to revisit the issue as a matter of policy if it wishes to achieve a different result.
 With respect, we draw the opposite conclusion [as Goldfinger]. To call oneself a specialist in an area of law, whether as a lawyer or a paralegal, is to relay a simple and useful piece of information that is well understood by the public, most notably the “ordinary hurried purchaser” who has no need to be informed of the existence of specialist certifications for lawyers or the absence of such certifications for paralegals. It is a surprising turn of events for a paralegal to communicate information in the most understandable way for the general public, only to be penalized because a similar word is used in a very specific professional regulatory program that has nothing to do with the paralegal or the services the paralegal wishes to provide.
 What is prohibited, in other words, is the use of a term of art, not the truthful and accurate use of everyday language. Saying “I specialize in this area” is a common representation that is made, for example, across the commercial, professional and educational world. Indeed, in the present appeal, the respondent reproduced many examples of established firms and lawyers who routinely make the same claim in their publications and biographical material.
Whether Convocation reviews the issue to explicitly state, with precision, that the use of the word “specialize” is prohibited in the Rules is yet to see, but it’s just as likely that the debate will turn to whether the Certified Specialist program will even be retained. It’s unlikely the consumers will be confused, or even care to pay attention, to any of these debates at all.