LAWYER ADVERTISING OPINION A-0111

USE OF THE TITLE "TAX SPECIALIST’

INQUIRY:

An attorney was recently admitted to the Virginia State Bar and holds a LLM in Taxation, and is CPA and a certified financial planner (CFP). The attorney inquires as to whether she may use the title "tax specialist" on her business cards and letterhead stationery.

OPINION:

Upon these facts, it is not per se improper for a lawyer to use the designation "tax specialist" if in fact the lawyer limits their practice to, or concentrates in, matters involving tax law and is "certified" or "recognized" as a specialist by an organization or entity. However, lawyers should avoid the use of the terms "specialist" and "specializes in" relative to an area of practice unless such attorney is a "certified" or "recognized" specialist by an organization or entity, and the advertisement or public communication is accompanied by a disclaimer that there is no procedure in Virginia for approving such certifying organizations.

DISCUSSION:

The controlling disciplinary rule is DR 2-104 which states:

DR 2-104. Specialists; Limitation of Practice.

(A) A lawyer shall not hold himself out publicly as, or imply that he is, a recognized or certified specialist except in accordance with either DR 2-101, DR 2-102 or DR 2-103, or except as follows:

(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation Patents, Patent Attorney, or Patent Lawyer, or any combination of those terms, on his letterhead and office sign. A lawyer engaged in the trademark practice may use the designation Trademarks, Trademark Attorney, or Trademark Lawyer, or any combination of those terms, on his letterhead and office sign, and a lawyer engaged in the admiralty practice may use the designation Admiralty, Proctor in Admiralty, or Admiralty Lawyer, or any combination of those terms, on his letterhead and office sign.

(2) [Reserved, pending adoption of a specialization plan for lawyers.]

(B) A lawyer may state, announce or hold himself out as limiting his practice to a particular area or field of law so long as his communication of such limitation of practice is in accordance with the standards of DR 2-101, DR 2-102, or DR 2-103, as appropriate.

Another controlling rule, effective January 1, 2000 is Rule 7.4 of the Virginia Rules of Professional Conduct which states:

RULE 7.4 Communication Of Fields Of Practice And Certification

Lawyers may state, announce or hold themselves out as limiting their practice in a particular area or field of law so long as the communication of such limitation of practice is in accordance with the standards of this Rule, Rule 7.1, and Rule 7.3, as appropriate. A lawyer shall not state or imply that the lawyer has been recognized or certified as a specialist in a particular field of law except as follows:

(a) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation;

(b) A lawyer engaged in Admiralty practice may use as a designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation;

(c) A lawyer who has been certified by the Supreme Court of Virginia as a specialist in some capacity may use the designation of being so certified, e.g., "certified mediator" or a substantially similar designation;

(d) A lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization, provided that the communication clearly states that there is no procedure in the Commonwealth of Virginia for approving certifying organizations.

In Legal Ethics Opinion 979 (1987) the Virginia State Bar Standing Committee on Legal Ethics concluded that the use of the word "specializes" alone, without a preceding adjective "recognized" or "certified," is not per se unethical. Ethical Consideration (EC) 2-16 addresses the word "specialist" and states that an attorney should avoid the use of that particular title, to avoid misleading the public about an attorney’s level of qualification or skill. EC 2-16 goes on to state that attorneys may, if factually correct, state that their practices are limited to one or more areas of law. This committee observes that the Legal Ethics Committee was divided in LEO 979. However, the Legal Ethics Committee reached similar conclusions in Legal Ethics Opinion 1425 (1991) reaffirming that it is not per se unethical for an attorney to advertise that he "specializes" in a certain area of law, so long as he does not claim to be a "recognized" or "certified" specialist, except as permitted under DR 2-104 in regard to admiralty or patent or trademark law.

Legal Ethics Opinion 1385 (1990) addresses the issue of an attorney officially recognized as a Board Certified Tax Lawyer in another jurisdiction and inquired as to whether he could use that title on his letterhead if practicing in Virginia when such certification did not come from Virginia. The committee concluded that such designation on letterhead stationery and business cards would not be improper, citing the United States Supreme Court’s decision in Peel v. Attorney Registration & Disciplinary Comm’n of Illinois, 496 U.S. 91 (1990) (lawyer who used designation that he is a civil trial specialist certified by the National Board of Trial Advocacy entitled to protection under first amendment commercial speech doctrine).

The Committee observes that the requirements for licensure for a certified public accountant is rigorous. To obtain a CPA license an applicant must pass the Uniform CPA Examination administered by the State Board of Accountancy. This exam covers and tests the applicant thoroughly on matters involving taxation. Passage of this exam is difficult and provides at least some objective measurement that the applicant possesses a certain level of knowledge in the field of taxation. 18 VAC 5-20-20 (D). The applicant must also satisfy the educational requirements which include a baccalaureate degree and at least 24 semester hours of accounting courses, undergraduate or graduate, including taxation. 18 VAC 5-20-20 (C). In addition, unlike the legal profession, most jurisdictions, including Virginia, require experience in public accounting before a license may be issued. Virginia requires two years of experience in public accounting or two years experience under the supervision or a CPA in order to qualify for an original license. 18 VAC 5-20-80. Nonlawyer CPAs are recognized in Virginia as being capable and authorized to engage in tax practice without a law degree because they are regulated by the state and have demonstrated that they have met certain minimum educational requirements. Va. S. Ct. R., Pt. 6, I, UPR 6, and UPC 5-8.

Based on the foregoing, this committee concludes that it would not be per se improper for an attorney possessing the licenses and certifications described herein to use the terms "tax specialist" or "specializing" in tax provided such claims are truthful and comport with DR 2-101 (A) or Rule 7.1 of the new Rules of Professional Conduct.

Committee Opinion

May 25, 1999


 

1 The Board of Accountancy Rules and Regulations list other experience alternatives that qualify the applicant for licensure but the internship is the typical route. The other experience requirements are quite substantial in their own right requiring three years of experience level accounting courses including taxation. constituting at least 800 hours in performing diversified accounting services or teaching upper