Rutgers School of Law, OAL case ACPE107

                                         90 N.J.L.J. 245
                                        April 20, 1967

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 107

Advertising
Specialized Legal Services

    An attorney proposes to place the following advertisement in the New Jersey Law Journal:
        Tax Lien Foreclosures. In Rem or Personal. Attorney will handle for other attorneys.

    Solicitation by advertisement is prohibited by Canons of Professional Ethics, Canon 27, and the only exception to this general rule is found in Canon 46. That ABA canon formerly read:
            Where a lawyer is engaged in rendering a specialized legal service directly and only to other lawyers, a brief, dignified notice of that fact, couched in language indicating that it is addressed to lawyers, inserted in legal periodicals and like publications when it will afford convenient and beneficial information to lawyers desiring to obtain such services is not improper.

In February 1956, ABA Canon 46 was amended to read:

A lawyer available to act as an associate of other lawyers in a particular branch of the law or legal service may send to local lawyers only and publish in his local legal journal a brief and dignified announcement of his availability to serve other lawyers in connection therewith. The announcement should be in a form which does not constitute a statement or representation of special experience or expertness.

    In our Opinion 49, 87 N.J.L.J. 465 (1964), we noted that ABA Canon 46 as amended has never been adopted specifically by our Supreme Court, but that it serves as an aid in determining questions under the present N.J. Canon 46, which reads exactly as ABA Canon 46 read originally. This statement notwithstanding, it is
the Committee's position that inquiries concerning professional advertising must be decided under N.J. Canon 46, unless and until our Supreme Court adopts the language of ABA Canon 46 as revised.
    The proposed notice under inquiry is brief and dignified and the only question which remains is whether tax lien foreclosures involve a specialized legal service within the meaning of N.J. Canon 46. ABA Opinion 194 (1939)See footnote 1 ¹ sets forth one standard upon which to determine whether a particular area of the practice of law is a specialized legal service:
        ... except in the case of branches of the profession which are universally considered as separate from the general practice, probably the test is the general availability in his community of the type of service offered by the lawyer as a specialized legal service. The exception to which we refer is best illustrated by the practitioners in Admirality, or Patents, Trademarks and Copyrights. ...

A.B.A. Opinion 175 (1938), decided under Canon 27, in reference to

professional cards, sets forth a clearer test:

            Any class of work which the average lawyer is equipped and willing to handle cannot be said to be a specialty despite the fact that a lawyer may restrict himself to such a class of work and acquire an unusual degree of proficiency and experience in handling the same. Any specification of particular types of work necessarily carries an inference that unusual ability or experience is asserted and consequently noticed or advertised.

    In Drinker, Legal Ethics 295 (1961), the author reports heretofore unreported ABA decisions pertaining to Canon 46 construing the following not to be specialized legal services: Law and practice of New Jersey, jury trials, arguing cases in the Supreme Court, consultant on Florida law, bankruptcy and insolvency law and business reorganizations, income tax matters, federal taxation and trusts and estates.
    In the light of the general principles cited above and the particular branches of the law which have been construed not to be specialized legal services by the ABA Ethics Committee, it is our opinion that tax lien foreclosure work is not a specialized legal service within the meaning of N.J. Canon 46 and, therefore, that the proposed advertisement is improper.
    As a point of interest, the New York County Lawyers Ass'n., Committee on Professional Ethics has construed the original ABA Canon 46 more broadly than has the ABA Committee (see N.Y. County Opinion 451 and 451A (1956)), but this Committee adheres to the principle that N.J. Canon 46 is to be strictly construed. See ABA Opinions 145 (1935), 194 (1939).

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Footnote: 1 ¹All ABA opinions cited were decided under the original ABA Canon 46.

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