Board certification: the view from the bench ... and beyond.

All rise, this circuit court in and for ... is now in session." You've just settled down to begin a trial in a hotly contested domestic case. Although you've had several early morning "emergency" hearings, your spirits are good; it was a beautiful drive to work, and thus far, everything and everyone has been pleasant.

In short, it has been a good day. When, suddenly, counsel A begins with "Counsel B hasn't done anything she was supposed to do under the rules, no discovery, no disclosure, no cooperation or coordination with any office, and she instructed her client not to answer any of the attorney's `stupid' questions in the deposition, Judge!" To which Counsel B responds, "You know that's not true, you bigot, you're just saying that because I destroyed you in our last case? A sinking feeling hits your judicial stomach as the nails scratch across the chalkboard and you feel your legendary patience begin to slip. Didn't these "professionals" remember that in law school we were taught never to argue with each other, but instead to address legal argument to the court? Before the gentle admonishment can leave your lips, Counsel A's client glares at his former spouse and mutters, "Why did you hire that jerk? My lawyer says she rips everyone off, especially her clients!"

While this scenario may seem exaggerated to some, judges deal with similar encounters more often than one would think. A lack of professionalism can obstruct the administration of justice and erode the confidence of participants and observers. And it doesn't happen just in the domestic arena. Assistant state attorneys, private counsel, public defenders, corporate counsel, plaintiff's and defendant's counsel of all stripes, even title researchers, have been guilty of lapses in professional conduct from time to time.

How does the bench view these behaviors? It varies from judge to judge; however, the consensus is that a better trained attorney is more professional. Minimum standards of mandatory CLE have been de rigueur for many years now, yet the anecdotal conventional wisdom is that civil behavior in the courtroom is on the decline.

Despite this view, there appears to be a bright spot. And that, colleagues agree, is the exemplary behavior exhibited throughout the profession by those who have made the effort to become board certified. Board certification leads to a higher level of professionalism.

The ideal of professionalism is composed of many elements. Among these are knowledge of the law, thorough preparation, civility without subservience, passion without rancor, commitment or dedication, and perhaps just as fundamental are the correlative attributes of humor, balance, and grace under fire. Florida Supreme Court Chief Justice Harry Lee Anstead has said that character, competence, and commitment is the essential formula for professionals. No matter how one defines professionalism, judges agree that increased professionalism promotes and assists the administration of justice. Because achieving competence in a specialty area and attaining a reputation for good character are vital to becoming board certified, an increase of board certified attorneys would have positive effects upon our profession.

When this writer first sought board certification as a civil trial attorney more than 10 years ago, it had become quite clear that the information age was transforming the legal landscape. The growing complexity and diverse nature of the law practice convinced me of the need to specialize. I also recognized that board certification would enhance my personal and professional development. After 14 years of practice, I was ready to demonstrate that I o embraced the higher standards required of a board certified attorney. In short, I was ready to raise the bar. The attainment of board certification was a commitment I made to myself and my clients, and it was well worth the effort.

Do certification examinations, peer review, and a higher level of continuing legal education make for a better attorney? Most judges would agree that it does. As stated by Florida Supreme Court Justice Charles T. Wells, "I am extremely proud that I received the distinction of certified trial lawyer at the time that certification was first authorized by The Florida Bar. When I was in active trial practice, it was my belief that being certified was important to the Bar and to the public, and that belief has been reinforced since I have served on the Supreme Court. The Bar and the public can have confidence that certified lawyers have met strict standards of peer recognition of their competence and objective testing of their legal knowledge. When I see that a lawyer is certified, I know that he or she earned that upper level or respect. I urge each lawyer to do what is necessary to be certified in the lawyer's area of practice."

According to Fifth District Court of Appeal Judge Richard B. Orfinger, board certification is a key element of professional growth. Says Judge Orfinger: "Board certification demonstrates an attorney's interest in enhancing his or her knowledge and skills and recognizes the importance of professionalism, all of which enhance the administration of justice and the public's confidence in the courts. Although there are many great lawyers in Florida, some board certified and some not, I, along with most other judges, enjoy working with board certified lawyers because of their demonstrated commitment to competence and professionalism."

Orange County Judge Jeffrey M. Fleming considers his board certification as a civil trial attorney to be among his greatest professional achievements. "Now that I am a trial judge," he explains, "it is my pleasure to have many fine lawyers appear before me. Those maintaining the highest standard are often board certified and I am committed to adding to their ranks." He actively encourages highly ethical and competent lawyers to seek board certification, even if they have been practicing for many years.

The consensus that trial board certification is good for our community is shared beyond the bench. Former Florida Bar Board of Governors member and highly respected trial lawyer Sammy Cacciatore shares the view that he finds a higher level of both professionalism and knowledge in certified lawyers. Mr. Cacciatore believes that the experience that is required for certification and the study required for the examination gives these individuals a definite edge. Mr. Cacciatore has found certification to be extremely valuable in his professional career, and urges all lawyers strive to become board certified in their area of expertise.

Peer review is an integral component of certification. Many judges mistakenly presume that participating in the review process is an abuse of office. This simply is not true. In fact, judges play an important role in the certification process--a role endorsed by the Florida Supreme Court. Canon 4 of the Florida Code of Judicial Conduct encourages judges to participate in activities designed to advance the legal system. By meeting and maintaining a more rigorous set of standards, board certified attorneys are contributing to a new culture of legal excellence and professional integrity. As judges, we have a duty to both the Bar and the public to support these efforts. We can do this by participating in the peer review process and being completely candid in our comments.

Circuit Judge Ralph Artigliere of the 10th Judicial Circuit argues that peer review is the most important aspect of the certification process. He writes: "Peer evaluation is the best litmus test for candidates, because peer review shows whether an applicant continuously meets ethical and competency standards. Judges are important, essential peer evaluators because judges do not compete with applicants and have a unique perspective from the bench involving conduct during some of the most challenging events in law practice." (1)

Some judges hesitate to complete peer evaluation forms for fear their comments might alienate or offend the applicant. However, this fear is groundless, as peer review is totally confidential. Judge Artigliere affirms this. "The applicant specifically waives access to the peer review information, and The Florida Bar has confirmed that peer evaluations are not subject to disclosure by any means, including the Sunshine laws." (2)

Looking at certification from the bench, judges have an objective measure of the qualifications, competency, and professionalism of those who appear before them. This knowledge can assist in the awarding of fees, appointing lawyers to cases, and assessing the credibility of those who appear in court. Judges should look upon certification as an ally and aid in the administration of justice. Raising the level of competency and professionalism in the courtroom makes the adversary process a more comfortable and secure environment, yet still a fully competitive one.

In conclusion, board certification is not offered as a panacea. Rather, it is posed that a significant increase in board certified attorneys would serve to obtain a more orderly and civil administration of the law and concomitantly an increase in justice both quantitatively and qualitatively. Moreover, the push toward certification by the judiciary is a no-lose proposition. Even the attorneys unable to qualify initially will receive a substantial benefit engendered by the commitment, and those who pass the mark will discover the benefits of board certification are worth the effort.

(1) 7 The Specialist (No. 1/June 2002). (The Specialist is a publication of the Board of Legal Specialization and Education of The Florida Bar.).

(2) Id.

Judge George W. Maxwell III has been a judge for the 18th Judicial Circuit since 1999. He received his B.S. from Stetson University and his J.D. from the University of Florida College of Law. He became board certified in civil trial in 1992.