A Specialized Lawyer Does Not Need to Be Certified

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,

Certified Specialist

4.3-1 A lawyer shall not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Law Society.

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.
[emphasis added]

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 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,

[50] 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.

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,

[148] 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.

The Appeal Division in Goldfinger rejected this analysis, stating,

[57] …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.”

[59] 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.”

[68] 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,

[73] 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,

[106] 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.

[107] 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,[25] 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.

[108] 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.

[109] 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.

[110] 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.
[emphasis added]

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,

[41] 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.

[49] 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.

[56] 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.

Comments

  1. The specialist vs. specialize distinction in one that continues to play itself out in the context of medico-legal expert opinion evidence in the Ontario personal injury context. Consider: Dr. PG was a general practitioner working for an assessment firm which provided medical opinion evidence – primarily to ON auto insurers. Dr. PG claimed to “specialize” in orthopaedic medicine. His medico-legal assessments, frequently adduced as evidence by insurer defence lawyers in the former FSCO adjudication context were entitled “orthopaedic assessment”. The subject of one of Dr. PG’s assessments complained to the CPSO and after a brief investigation the College decided that Dr. PG can claim to ‘specialize” as long as he doesn’t claim to be a “specialist. The College acknowledged that “this can be confusing…”.
    And there’s the rub. This backdoor method of inflating competency thoroughly confused lawyers and adjudicators at FSCO. In case after case after case Dr. PG is “confused” with (ie. mistaken for) an “orthopaedic specialist” or an “orthopaedic surgeon”. In case after case Dr. PR’s “expert” opinion evidence is given more weight than that of actual orthopaedic specialists/surgeons.
    So this eagerness to pretend that it is ok for doctors (or lawyers) to say they “specialize” in a particular area of medicine (or law) is far from benign in its outcome -as some would have it.
    Until the ON FSCO auto accident injury adjudication site was “disappeared” (what’s up with that?); one could go to the site, enter Dr. PG’s name, order the search results chronologically and browse through case after case in which injured auto accident litigants were denied policy benefits (including reasonable/necessary treatment) based on the “expert” opinion evidence of a “specializing” general practitioner who time and again (intentionally or otherwise) duped triers of fact and plaintiff lawyers into believing he was a specialist/surgeon and weighing his opinions accordingly.
    This debate, as it is applies to lawyers, is being said by some to be of no interest to anyone (ie. clients) and of no consequence to practice. Tell that to all the many injured victims of Dr. PG’s orthopaedic “expertise”. To this day neither FSCO, the adjudicators nor the lawyers involved in this systemic “mistake” have bothered to inform these ON auto crash victims how they were “mistakenly” duped out of their SAB auto insurance benefits.
    For my part, I think there is a world of difference between lawyers who are actually certified in a particular area of practice versus those who claim to specialize in the same area. The former would be able to successfully take a case to trail (if need be) while the latter would at best be acting as a referral mill for truly qualified lawyers. Premier Ford is currently erasing the need for competency testing in the trades. Seems like a lot of ON lawyers and the LSO agree with Ford that there is no need to differ between a handyman and say an electrician. Ditto – we are being told there is no need to differ between actual trained specialists in certain areas of law versus those who want to “specialize” (like a handyman) in this or that area of law.

    Lastly, perhaps I could ask: why hasn’t public space been made somewhere for the extensive personal injury case law accumulated at FSCO. Only because it has been disappeared can we pretend we haven’t already been down the specialize versus specialist road. It didn’t end well!

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