The heading of this Rule has been modified to reflect the related issues addressed by this Rule.
Paragraph (a) of this Rule deals with identifying the substantive areas in which a lawyer does or does not practice. This paragraph generally permits a lawyer to state those areas in advertising and other communications about the lawyer's services. For example, if a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted to so indicate. While this Rule contains no per se prohibition against a lawyer stating that the lawyer is a "specialist," practices a "specialty," or "specializes in" particular fields, statements to this effect (like all communications concerning a lawyer's services) are subject to the "false or misleading" standards set out in Rule 7.1. In this connection, it must be recognized that a lawyer who asserts himself or herself as a specialist is not merely identifying the fields of the lawyer's practice, but is also claiming to have a more than average level of knowledge, skill, and experience in those fields. Moreover, a lawyer's claim to specialist status may affect the standard of care or reasonableness against which the lawyer's conduct or performance is measured in civil, administrative or criminal proceedings.
Paragraph (b) deals with specialty certification. The term "certification" and its variations, when used in connection with an assertion of specialist status, may be misleading because it conveys that the lawyer does not merely claim to be a specialist, but that the lawyer acquired official recognition as a specialist by means of some formal, objective process. Therefore, a lawyer may not communicate, state, suggest or imply that the lawyer has been certified as a specialist in a particular field of law unless expressly permitted by this paragraph. Subparagraph (1) permits the use of patent attorney designations because recognition of specialization in patent matters is a matter of long-established policy of the Patent and Trademark Office. Designation of admiralty practice, as permitted by subparagraph (2), likewise has long historical tradition associated with maritime commerce and the federal courts. Subparagraph (3) permits a lawyer, if certified by the Oklahoma Supreme Court as a specialist in a particular field or practice of law, to communicate that fact in such a manner as the Oklahoma Supreme Court may prescribe by rule. Subparagraph (4) permits a lawyer, if certified as a specialist in a particular field or practice of law by the official licensing authority of another state in which the lawyer is licensed, to communicate that fact in accordance with the rules and requirements of the official licensing authority of such other state. However, in order to prevent any communication made under the permission granted by subparagraph (4) from being misleading, it must also be communicated that the certification granted by the official licensing authority of the other state is not recognized by the Oklahoma Supreme Court.
Code Comparison
Rule 7.4 is substantially similar to DR 2-104.
Oklahoma Modification
The Oklahoma rule amended effective ______________, 2001 differs from the ABA Model rule then in effect in the following respects, and the Comment is modified accordingly:
First, the Oklahoma Rule goes beyond ABA Rule 7.4, by permitting a lawyer to state practice concentration in addition to practice limitations in particular fields of law. See the discussion in OKLAHOMA MODIFICATION under Rule 7.1.
The Oklahoma Rule continues to recognize the use of traditional lawyer designations in the fields of patent and admiralty practice, and reference to a lawyer's certification as a specialist by the Oklahoma Supreme Court, as expectations to the general rule against communications which state or imply that a lawyer is certified as a specialist. However, the latter exception is presently moot because, at this time, the Oklahoma Supreme Court has no rules or procedures for specialty certification. The absence of such rules and procedures creates tension between Oklahoma's legitimate interest in protecting the public from misleading communications as to a lawyer's certification as a specialist, and a lawyer's legitimate commercial free speech interest in truthful communication of the facts regarding specialty certification earned in accordance with the rules and procedures approved by states other than Oklahoma in which the lawyer is also licensed to practice.
To resolve this tension, the Oklahoma Rule provides a new exception under which a lawyer may state or imply certification as a specialist. The new exception, appearing at subsection (b)(4) of this Rule, was drawn to some extent from the ABA Model Rule 7.4 now in effect. However, unlike its ABA counterpart, the Oklahoma Rule allows a lawyer to refer only to those specialty certifications awarded directly by the official licensing authority of the state(s) other than Oklahoma in which the lawyer is also licensed. Thus, the Oklahoma Rule treats specialty certifications granted by the official licensing body of the lawyer's other state(s) of licensure on a par with those that may hereafter be granted by Oklahoma's official licensing body, the Oklahoma Supreme Court. However, a variation of the disclaimer required in certain instances by current ABA Rule 7.4 is required by Oklahoma's Rule 7.4 for communications regarding all extraterritorial specialty certifications except patent and admiralty designations.
