Many professionals, like doctors, dentists, chiropractors or lawyers, may want to promote themselves as a “specialist.” The epithet conveys to potential clients that the individual is experienced and has advanced abilities.
However, referring to yourself as a “specialist” could run afoul of restrictions imposed by state-run boards. That’s right – you may run into disciplinary proceedings if you call yourself a “specialist.”
Enter the First Amendment. The First Amendment can provide a defense in a disciplinary action premised on the violation of a state-imposed restriction.
Why is an advertisement in which you refer to yourself as a “specialist” potentially protected by the First Amendment?
Advertisements constitute commercial speech. They reference a product and the speaker has an economic motive for engaging in the speech.
Although the United States Constitution affords less protection to commercial speech than to other constitutionally guaranteed expression, the First Amendment can protect commercial speech.
Commercial speech is protected by the First Amendment when it (1) concerns lawful activity and (2) is not misleading. If both of these requirements are met, the speech is protected. (The rules governing whether that protected speech can nevertheless be regulated by the government are beyond the scope of this post.)
An ad concerning professional services will most often involve lawful activity.
The challenging question for each professional, and where great care is required, is in determining whether the ad is false or inherently misleading. If it is either of these, then the First Amendment will not protect the speech from government regulation (censor, disciplinary actions, etc.). Simply put, the First Amendment does not protect false or misleading commercial speech.
This concept played itself out in Barlow v. Mississippi State Board of Chiropractic Examiners. There, a chiropractor referred to himself as a “board certified chiropractic neurologist.” There was evidence presented that patients were confused by this title—they thought he was a neurologist when in fact he was not. Based on the patients’ confusion, the court determined the ad was misleading. Because the ad was misleading, it did not warrant First Amendment protection. Accordingly, the chiropractor was disciplined and could not defend himself by saying his ad was protected by the First Amendment. (While not litigated, the chiropractor’s ad was also potentially subject to a Lanham Act false advertising claim.)
On the other hand, if an attorney calls herself a “specialist” and truly is one (and provides a clear description of any board certifications or other qualifications she has earned) use of that word in an ad (or on letterhead) is considered protected commercial speech. Peel v. Attorney Disc. Comm’n, 496 U.S. 91 (1990).
Despite the Peel decision, for many years the Maryland Attorneys’ Rules of Professional Conduct banned the use of the term “specialist” on the basis that the public may potentially be misled.
But in late 2016, the Maryland Court of Appeals lifted the ban. Specifically, Rule 19-307.4 of the Maryland Attorneys’ Rules of Professional Conduct, was amended to delete the phrase “[a]n attorney shall not hold himself or herself out publicly as a specialist.”
The Rules Committee acknowledged that the complete ban was likely invalid under the First Amendment, but did not offer much guidance on how an attorney can refer to himself or herself in advertisements.
The Comment does state that an attorney may indicate that he or she only practices in one field, or only accepts matters related to one field—which would seem to imply a specialized practice without calling oneself a “specialist.”
While the complete ban on the term “specialist” has been lifted for attorneys, it is still prudent to tread lightly, as there has yet to be a test case under the new Rule. Moreover, a companion rule, Rule 19-307.1, prohibits misleading advertisements, and in some instances calling oneself a “specialist” has been determined potentially misleading.
For now, the most conservative path is for an attorney to advertise herself as certified by a particular board, possessing a particular advanced degree, practicing only in one particular field, or only accepting matters related to one field, rather than using the term “specialist.”
If you are preparing to advertise services in a regulated field, Astrachan Gunst Thomas can help. Contact Julia Bartels at 410-783-3550 (firstname.lastname@example.org).