Certification by Specialty: A Panel Discussion

Honorable Alan M. Wilner, Judge of the Maryland Court of Appeals 1997-2007

David E. Rapoport, President of the National Board of Trial Advocacy

Gary W. McNeil, Executive Director of the Texas Board of Legal Specialization

At Maryland Law 20/20: a vision symposium presented by the Maryland Professional Center, Inc. and the Maryland State Bar Association on October 31, 2014 at the Judiciary Education and Conference Center in Annapolis, Maryland

Topic Overview

❖History and current status of certification by specialty for attorneys in the United States.

❖First Amendment cases involving certification by specialty.

❖Governing Maryland law.

❖Discussion: Is change needed?

❖Discussion: If so, what changes best serve the public and private interests involved?

History and current status of certification by specialty for attorneys in the United States.

Aware of pioneering work on specialty certification in Texas and California, at the 1973 Sonnett Memorial Lecture at Fordham Law School Chief Justice Warren Burger made the case for certification for trial advocacy…

system of certification for trial advocates

is an imperative

and long overdue

Burger, W.E., The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice?, 42 Fordham L. Rev. 227 (1973)(copy in written materials distributed in CLE package).

1971-1990

• 5 of these boards were formed by states: California, Texas, Florida,

Minnesota and North Carolina.

• 2 of these boards were formed by not for profit organizations with

substantial ties to existing bar institutions

• These 7 boards have been in continuous operation since formation and

their relationships with one another are collaborative.

7 specialty boards formed

• Announced in February of 1971 as the first attorney specialization certification program in the United States.

• Began operations in 1973 with three practice areas initially available: workers' compensation, criminal law, and tax law.

• Certifies attorneys in 12 select areas of law

• Approximately 3% of practicing attorneys in California are certified by CBLS

• CBLS is currently the third largest attorney specialization program

• Non-profit organized in 1972. • ABA accredited in 1995 (ABA began

accreditations in 1993)

• Certifies attorneys in two specialties: medical malpractice and legal malpractice.

• Authorized by the Texas Supreme Court in 1974

• Certifies attorneys in 21 select areas of law

• Approximately 10% of practicing attorneys in Texas are certified by TBLS

• TBLS is the largest attorney specialization

program in the country with the greatest percentage of board certified specialists

• Non-profit organized in 1977 • First ABA accredited certification board • Largest national attorney specialty certification program and 4th

largest certification program overall • Certifies attorneys in five specialty areas:

• criminal trial advocacy • civil trial advocacy • family trial advocacy • social security disability trial advocacy and • civil pretrial practice

• Program reviewed in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990)(discipline for attorney’s letterhead advertisement stating he was a civil trial specialist certified by the National Board of Trial Advocacy violated the First Amendment) and Hayes v. N.Y. Atty. Griev. Comm., 672 F.3d 158 (2d. Cir. 2012)(New York disclaimer requirements violated First Amendment).

• Authorized by the Florida Supreme Court in 1982

• Certifies attorneys in 24 select areas of law

• Approximately 7% of practicing attorneys in Florida are certified by the Florida Bar

• The second largest attorney specialization program in the country with the second highest percentage of board certified attorneys

• Program reviewed in Doe v. Fla Bar, 630 F3d 1336 (11th Cir. 2011)(Constitutional arguments by attorney who failed peer review requirements of state certification by specialty organization rejected).

• Authorized by the North Carolina Bar in 1983 and began certifying legal specialists in 1987

• Certifies attorneys in 11 select areas of law

• Approximately 5% of registered attorneys in

North Carolina are certified specialists in their field.

• Executive Director Alice N. Mine is also currently

serving as the Chair of the ABA Standing Committee on Specialization

• Authorized by the Minnesota Supreme Court to certify attorney specialists in 4 select areas of the law in 1987

• Approximately 3% of all registered attorneys in

Minnesota are certified specialists in their field

The Texas Story and Development of Certification Requirements

In 1969

the State Bar of Texas

appointed a committee to study

specialization in the law…

In its 1972 Report the Committee concluded:

• de facto specialization already existed

• the public would benefit from regulated specialization

• the best way to do that was to establish a certification program

1974 The Texas State Bar presented a plan

to the Supreme Court of Texas, which approved it

1975 The first group

is certified in the areas of Criminal, Family, and Labor Law

• A regulatory program designed to enhance practice in a specialty area

• Recognition of legal specialties – think medical profession

• Designed to provide information to consumers

• THIS WAS BEFORE LAWYERS WERE ALLOWED TO ADVERTISE.

Significance

BATES AND O’STEEN CASE DECIDED BY U.S. SUPREME COURT.

ADVERTISING LEGAL SERVICES IS HERE TO STAY.

THE DAY THE EARTH REALLY STOOD STILL:

MOST LAWYERS ESTABLISH A PRESENCE ON THE WEB

• FIRM WEBSITES • PROFESSIONAL • SUPER LAWYER, ASSOCIATIONS ET AL

THE EXPLOSION OF THE INTERNET

1990 to 2014

• ABA accreditation standards were developed

• ABA Standing Committee on Specialization developed and hosts annual Specialization Roundtable

• More certification boards form for a new total of 11 state boards and 7 non-profit national boards collectively offering 49 specialization areas and certifying approximately 30,000 attorneys

State Bar of Arizona Legal Specialization and MCLE

State Bar of California Office of Certification

Florida Board of Legal Specialization and Education Certification Program

Louisiana Board of Legal Specialization

Minnesota State Bar Association

New Jersey Board of Attorney Certification

New Mexico Board of Legal Specialization

North Carolina Board of Legal Specialization

South Carolina Supreme Court Commission on CLE and Specialization

Tennessee Supreme Court Commission on CLE & Specialization

Texas Board of Legal Specialization

The 11 State Operated Attorney Specialization Programs

American Board of Certification

American Board of Professional Liability Attorneys

National Association of Counsel for Children

National Association of Estate Planners & Councils Estate Law Specialist Board, Inc.

National Board of Legal Specialty Certification (formerly the National Board of Trial Advocacy)

National College for DUI Defense, Inc.

National Elder Law Foundation

The 7 ABA Accredited Non-Profit Attorney Specialization Programs

Leading State Programs

Derived from data the ABA collected, assembled by Rapoport and Wren for 2012 Roundtable on Specialization Presentation

Leading State Programs

Derived from data the ABA collected, assembled by Rapoport and Wren for 2012 Roundtable on Specialization Presentation

Board Certified Physicians Approx. 82% of Total

Board Certified Attorneys Approx. 3% of Total

Specialty Certification Percentage Estimates in Medicine and Law

As Stated by the Texas Board of Legal Specialty Certification

"promote the availability, accessibility and quality of the services of

attorneys to the public in particular areas of the law... and advance the standards of the legal profession."

Objectives of Attorney Specialty Certification Organizations

As Stated by the National Board of Trial Advocacy

“Inform and educate the public concerning legal

representation by board certified specialists.”

“Recognize and promote excellence in legal

advocacy through a national program

certifying specialists predicated on high

standards of demonstrated

competence and integrity.”

Objectives of Attorney Specialty Certification Organizations

As Stated by North Carolina’s Board of Legal Specialty Certification

“First, the program assists in the delivery of legal services to the

public by identifying to the public those lawyers who have

demonstrated special knowledge, skill, and proficiency in a specific

field. By identifying these lawyers, members of the public can more closely match their needs with

available services.”

program seeks to improve the competency of

members of the bar by

establishing an additional

incentive for lawyers to

participate in continuing

legal education and to meet

other

Objectives of Attorney Specialty Certification Organizations

• Licensed five years

• Concentration in specialty area

• Specific tasks

• Continuing legal education

• Peer review

• Written exam

Basic Components of Certification

• Every five years

• CLE

• Continued practice in the area

• Peer review

Renewal of Certification

First Amendment cases involving certification by specialty:

Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990).

Ibanez v. Fla. Dep’t of Bus. & Prof. Reg., Bd. of Accountancy, 512 U.S. 136 (1994).

Hayes v. N.Y. Atty. Griev. Comm., 672 F.3d 158 (2d. Cir. 2012).

Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990)

“In Peel, the Supreme Court considered a prohibition against an attorney’s advertisement that stated that he was a civil trial specialist certified by the NBTA. The Court held, 5 to 4, that absolute prohibition of the certification statement violated the First Amendment.”

• Per plurality state “could require a disclaimer stating that the NBTA is a private organization not affiliated with, or

sanctioned by, the State or Federal Government.” • 6/3 split on

whether “potentially

Ibanez v. Fla. Dep’t of Bus. & Prof. Reg., Bd. of Accountancy, 512 U.S. 136 (1994).

not false, deceptive, or

misleading can be restricted, but only if the State shows

that the restriction

directly and materially advances a substantial

state interest in

burden is not slight, and

“[m]ere speculation or

conjecture” will not suffice; rather the

State “must demonstrate

that the harms it recites are

real and that its restriction will

7 Justices found a state’s censure of a lawyer for truthfully listing herself as a CPA (Certified Public Accountant) and a CFP (Certified Financial Planner) violated the First Amendment.

Hayes v. N.Y. Atty. Griev. Comm., 672 F.3d 158 (2d. Cir. 2012)

the certifying organization is not affiliated

with any governmental

authority

certification is not a

requirement for the practice

of law

Certification does not

necessarily indicate greater

competence than other attorneys

experienced in this field of law

Challenged NY disclaimer requirements--

Hayes v. N.Y. Atty. Griev. Comm., 672 F.3d 158 (2d. Cir. 2012)

the certifying organization is not affiliated

with any governmental

authority

certification is not a

requirement for the practice

of law

Certification does not

necessarily indicate greater

competence than other attorneys

experienced in this field of law

The rulings

The second and third disclaimers violated the First Amendment. While the first disclaimer did not, the requirement it be “prominently made” was too vague.

Governing Maryland law

RULE 7.4 COMMUNICATION OF FIELDS OF PRACTICE (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law, subject to the requirements of Rule 7.1. A lawyer shall not hold himself or herself out publicly as a specialist. (b) 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.

Excerpt from MARYLAND LAWYER'S RULES OF PROFESSIONAL CONDUCT

Rule 7.4 Communication of Fields of Practice and Specialization (a) A lawyer may communicate the fact that the lawyer does or does not practice in

particular fields of law.

(b) 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. (c) A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been

approved by an appropriate state authority or that has been accredited by the American Bar Association; and

(2) the name of the certifying organization is clearly identified in the communication.

Excerpt from ABA MODEL RULES OF PROFESSIONAL CONDUCT

48 states have rules that permit lawyers to identify themselves as specialists. The rules of 32 of these states are similar to the ABA’s model rule, although some of these require state board or state court approval of the certifying body. Many of the states that have not adopted the Model Rule require any claim of specialization to be accompanied by various forms of disclaimers, such as a statement that the state does not certify lawyers as specialists. Two of the 48 states, Minnesota and Missouri, permit identification of a lawyer as a specialist even in the absence of certification, but require disclosure that there has been no certification by an organization accredited by a state board or court. One state, West Virginia, prohibits lawyers from identifying themselves as specialists except for patent attorneys and proctors in admiralty. One state, Maryland, prohibits identification as a specialist with no exceptions. Michigan and Mississippi have no rulesconcerning communications about lawyer specialization.

Excerpt from Hayes v. N.Y. Atty. Griev. Comm., 672 F.3d 158, 163-164 (2d. Cir. 2012)

Discussion: Is change needed?

Discussion: If so, what changes best serve the public and private interests involved?

Mine is boring enough without being certified.

Is your attorney board certified?

Do People Know About Board Certification for Lawyers ?

thank you for your time and attention