Certification: let's make it better, fairer, and more valued.

After 20 years The Florida Bar Certification program evokes significant praise, lingering skepticism, and a little disdain. These reactions derive from complimentary economic issues and emotional concerns.

What may be a great benefit to some lawyers others perceive as a detriment. This article explores why such a dichotomy exists. It suggests eight ways in which our certification program can be improved, enhanced, and reinforced to make it better and fairer and much more highly valued.

Why Certify?

There are four reasons for a certification program.

The first reason is that licensure, by itself, is not sufficient. After years of practice, the legal shingle provides scant assurance to potential clients that their attorney's current level of professional development, judgment, and skill as an advocate and a counselor is of highest caliber. Most potential clients (even sophisticated corporate clients) really don't know how to best assess whether a lawyer is most suited to handle their matters. Certification provides better guidance, which is laudable. It confers peer and public recognition of superior credentials and confirms qualifications in a specialty area.

If certification did not exist, the truly better-talented attorneys still would rely on time-tested promotional methods: word-of-mouth and more formal marketing efforts (including personal networking, limited public advertising that the Florida Supreme Court permits, and targeted public relations). Consequently, if peer recognition and lay public recognition were the only justifications, our certification program still would be of value. It just would not be of as much value unless the other reasons for having certification exist.

The second reason for certification is the competitive advantage it can bestow in the marketplace, both for lay and professional referrals. An analogy can be made to medical services, because consumers of legal services also are consumers of medical services. They know that doctors who are board certified are "vetted" by their peers through rigorous testing (and presumably heightened education or re-education). The cachet of certification for health care providers elevates perceptions about the level of knowledge, judgment, and dexterity a medical practitioner is likely to possess. By analogy, a board certified lawyer should benefit from the same reasoning process. Legal certification has not yet reached this level of marketplace effectiveness, but it should, eventually, if the right steps are taken in promoting and developing the certification program.

All of us know that when an angioplasty or laparoscopy procedure is needed, the "certified" specialist will get the referral, not the generalist. The health care specialists who provide these services typically require the facilities and backup available only in a hospital. To be granted the requisite "privileges" to practice in or to admit participants to a hospital, a doctor must apply to and be approved by committees of doctors. For a hospital to be perceived as having "better trained" doctors, and to restrict the number of medical practitioners eligible for "privileges," specialists typically are required to hold "certification" in their field. Consequently, possessing relevant, field-specific certification(s) transforms such credentials into the ticket for admission past the gatekeepers--who happen to be the hospital's medical committees and the administrators. Potentially, this is a huge economic benefit for a doctor. No comparable process exists in the law. That's the challenge for us lawyers.

Less sophisticated clients (and potential clients) of legal services typically don't know how to form an accurate opinion about a lawyer's capability. In law school we learn the gift of gab; our professional milieu encourages it. As a consequence, lawyers tend to be comfortable professing their accomplishments, which through politeness or ignorance, potential clients generally do not openly challenge. The existence of certification--which would-be clients could presume to be similar to the comparable credential possessed by their health care provider--may provide a helpful, external validation of competency. If so, perhaps they tell their family, friends, colleagues, and others.

A lawyer's professional colleagues and acquaintances who are appraised of a fellow practitioner's certification credentials are more likely to recognize some level of potentially superior skill. Without a third-party professional practice gatekeeper, however-such as what exists for medical specialists in the form of hospital committees and administrators--the legal credential simply carries less weight. That's a fact. Whatever sustainable economic advantage Florida Bar certification confers, it still is dependent upon the time-tested methods of word-of-mouth recommendations and targeted marketing efforts.

When a lawyer specializes in one or more areas of law, he or she is likely to become more dependent on referrals from other lawyers, typically generalists or corporate lawyers who serve as the "gatekeepers" for their clients. Certification offers a specialist the competitive advantage of an easier cue that will remind potential referring sources about whom to contact for a potential referral in a specialized area of law. Certification also tends to provide a measure of comfort to the referring attorney with respect both to the limited role of the referred attorney (and the lessened likelihood of loss of the client for other legal services), as well as to the referred client, who may appreciate the external validation of superior qualifications (conferred by heightened standards for the certified lawyer). Moreover, from a marketing standpoint, it may be easier and less expensive for practitioners in some areas of the law to obtain new clients through professional referrals than it would be to advertise directly to potential clients, especially given the significant restraints on advertising imposed by the Florida Supreme Court.

Consequently, if the inadequacies of licensure and the perceived (or actual) competitive advantages were the only justification, certification still would be of some value. Nevertheless, it would be of limited value were it not for two other important reasons to certify lawyers.

The third reason to certify lawyers is that it leads to potentially better quality legal work product and less likelihood of errors or omissions (at least, in the practitioner's area of specialty). Certification requires an assessment of superior competency based on continuing legal education in a defined area of the law; specialized training; focused professional experiences; greater exposure to acts, practices, and events in a field of concentrated legal practice; and resultant peer recognition of competency (or superior) judgment and legal skills in representing clients and advocating their matters.

This superior competency assessment is made by a committee of board certified specialists in the same area of certification, who establish and enforce qualifying "standards" of competency that have the approval of our Board of Governors and the Florida Supreme Court. The competency assessment entails extensive background checks, some interviews, and an examination of issue perception and problem solving in the area of the applicant's skills. To become and remain "certified" is not easy. It is intended to entail a rigorous and demanding process to assure a special ability as a consequence of broad, varied, tested experience.

All of the official requirements are likely to deter less qualified practitioners from applying for certification, or to be "weeded out" from consideration for certification. The process will cause truly qualified practitioners to "bone up" by studying, and focusing their efforts to qualify for and submit themselves to peer scrutiny.

The fourth reason to certify lawyers arguably is the most important. Certification may lead to greater competency, efficiency, ethical awareness, civility, and professionalism. Everyone benefits from these attributes.

Anyone who has practiced long enough to appreciate the benefits of facing a truly knowledgeable opposing counsel knows that highly competent opposing counsel can make a case proceed more expediently and in a less unnecessarily contentious manner. Sometimes this makes the lawyer's job easier, sometimes not. Justice is more efficiently reached when a lawyer trusts the opposing counsel; has a reasonable expectation about issues, fact development, and tasks progression; can better predict why a course of conduct may be pursued; and can appreciate how potential outcomes might affect settlement or trial prospects. The heightened professionalism and predictability can lessen stress and reduce the cost of providing legal services. Lawyers and clients benefit; judges and those who pay for the administration of justice (the taxpayers) benefit. These advantages to society provide important reasons to have and to promote certification.

Peer recognition, public recognition, competitive advantages for marketing, potentially better quality legal work product, and the societal advantages should justify the time, effort, and expense involved in administering The Florida Bar's certification program.

One might consider: If these benefits really exist, why would any practitioners not support the certification process? For that matter, why aren't more practitioners attracted to the perceived benefits that approximately six percent of the Bar embraces? Alas, there is another, less savory side to certification. Four factors define it.

Finders, Minders, and Grinders

The first factor is that there has been an absence of sustained leadership by the Board of Governors and especially by recent Bar presidents. Certification is among the best of all programs The Florida Bar offers. It is a gem. The Board of Governors could and should do more to promote it, and the certification program should be carefully expanded into more subspecialty areas of practice. This has not been done out of fear that noncertified attorneys might be offended. However, enormous benefits flow from certification. These benefits completely outweigh any such concerns. To enhance and reinforce the four areas of benefits discussed above, Bar presidents should embrace the certification program and make it a keystone of their administrations. Further, the Board of Governors simply needs to transcend concerns that noncertified lawyers may object, and resolve to more proactively promote the certification program.

Only six percent of our membership is certified, contrasted with well over half of all physicians! The prevalence of certification in medicine can be attributed to its longer history in that occupation, as well as the fact that certification simply is more highly valued in medicine than in law.

The second factor is that the practice of law generally has evolved (especially for specialists) into an occupation characterized by finders, minders, and grinders. The "finders" procure revenue sources, the "minders" supervise workflow and assure consistency in quality and output, and the "grinders" (generally younger lawyers) produce the basic work product, be it research, writing, interviewing, etc., and they handle routine court appearances, etc. Certification can upset that paradigm.

If a "minder" becomes certified in an area of specialization, the potential for direct referrals to the "minder" may increase, bypassing the "finder," who serves as a de facto gatekeeper for a law firm. Given the potential adverse effect on the "finder's" personal compensation, he or she may have little or no incentive to encourage colleagues (even those who are fellow "finders") to become certified. Gatekeeper status in any occupation is a source of empowerment, prestige, remuneration, networking opportunities, favoritism, and perquisites. Once achieved such status seldom is relinquished without a fight.

Further, gatekeeper status in some fields of law may be based on an externality that could be diminished or devalued if certification were to provide alternative access to the emoluments of status. Take, for just two examples, trial law and patent law.

Expanding civil trial certification to embrace subspecialty certification--such as professional liability litigation, products liability litigation, personal injury and wrongful death litigation, mass tort and multidistrict litigation, etc.--would better mirror the reality of trial law for many practitioners today, and would bring our certification process closer to the subspecialty certification process that physicians enjoy. The finder, minder, and grinder paradigm does not apply in the medical occupation, perhaps in part because of the availability of subspecialty certification for doctors.

Having subspecialty certification in intellectual property law would benefit the public and all specialized practitioners. However, some patent lawyers oppose it. To prepare a patent application and to "prosecute" that application before the U.S. Patent and Trademark Office (PTO) requires a practitioner to be "registered" with the PTO. Registration is analogous to licensure; it is a much different credential than that of certification.

Federal registration for patent lawyers is conferred in one of three ways. The would-be patent lawyer can take a rigorous examination--one that reportedly is much more difficult than any state bar examination. Accolades are due to those who take and pass this very difficult patent registration examination. However, another way to become registered as a patent attorney is for a lawyer to work for four years as a PTO patent examiner and automatically become "registered" without taking any test (which many have done). Finally, a foreign patent lawyer can obtain registration in the U.S. as a matter of comity.

Once registered with the PTO (either as a registered patent attorney or as a registered patent agent, which is what nonlawyers are called, a patent specialist need not join any state's bar in order to set up shop, put out a shingle, and start representing clients at the PTO. Because many patent lawyers (and patent agents) practicing in Florida do not belong to The Florida Bar, they would not qualify for certification by The Florida Bar, if subspecialty certification were to be offered. Hopefully they will support having federal certification by the PTO, as an alternative to state-based certification programs for which they would not qualify.

Another factor with respect to patent lawyers is that there are significant flaws in the federal registration process at the PTO, which a potential Florida intellectual property law subspecialty certification would remedy. First, the PTO registration does not require periodic showings of professional development, judgment, or skill. It is a static, not a dynamic, credential--just like licensure of law at the state level. Second, once "registered" with a scientific background in any area of science, the practitioner can prepare and "prosecute" patent applications in any area of science: mechanical, electrical, chemical, biological, etc. Consequently, the fact of PTO registration does not attest to any superior competency or judgment. Third, PTO registration does not test many significant facets of patent (or trademark, or copyright) practice, such as skill in licensing transactions or litigation in federal courts, much less knowledge of "patent misuse" or other important legal doctrines.

Perhaps in recognition of the failings of its own registration program, the PTO has announced a "strategic plan" to implement federal certification. See www.uspto.gov. It may take years--if ever--for that to occur, but it is a recognition that certification would benefit the public as well as better skilled practitioners.

Perceived Loss of Gatekeeper Status

Those federally registered patent attorneys who oppose certification in Florida are not the first interest group to oppose certification. In the 1990s, when business litigation certification was proposed (and vigorously opposed by the certified trial lawyers) in Florida, "gatekeeper" concerns predominated. Today, resistance to subspecialty certification in other logical practice areas of health law, labor law, and other specialty areas, for example, is just another species of "gatekeeperitis." There is a genuine consumer protection issue, but it just gets lost in the hubbub and stiff-neck bickering over turf and over temporal Bar considerations of an administrative or bureaucratic nature.

Although it is quite correct to characterize the law as a "profession," it also is true that the law is an honorable "occupation." Our occupation fairly can be characterized as having excess capacity with great areas of underfunded demand. The legal "gatekeepers" logically will seek to preserve and protect their competitive advantage, especially for legal services that are in demand and that are well funded.

The concept of "professionalism" should exist as a state of mind in virtually all mercantile pursuits. That is, as television diva Martha Stewart might say, "A good thing!" Professionalism is the overlay that separates lower standards of acceptable occupational behavior from higher, more rigorous conduct, which can produce better and more predictable outcomes.

Viewed in the reality of our crowded occupation, with constant economic pressures and regulatory restraints on unfettered marketing, the potential for economic protectionism, and possible economic discrimination, anticompetitive exclusion, or simply petty petulance laced with the scent of predatory intent, should not be surprising. Professionalism aside, "business is business!"

It would be illogical and irrational to expect the law's "gatekeepers" to readily relinquish or cede their perceived competitive advantages to the vicissitudes of certification.

The Fear of Higher Standards

The third factor is a misplaced fear by some practitioners that higher malpractice insurance premiums could result from holding themselves out to a higher standard of care that might be applied in litigation to a "certified" lawyer (in the event of an error or omission). The reality, however, is that there is no statistical evidence certified lawyers incur increased premiums as a consequence of heightened credentials. In fact, if your errors and omission insurance application does not even inquire about certification, perhaps it should. Florida Lawyers Mutual Insurance Company, for example, offers a 10 percent premium discount for board certification. Thus, the concern about potentially higher insurance costs simply may not exist.

Logically, a lawyer who concentrates his or her practice in one or two fields of law will possess heightened issue perception, demonstrate greater appreciation for the factors that can affect a successful outcome for a client whose needs are specialized, and be capable of appreciating more effective strategies. Assuming true knowledge, training, skill, and ability, concentration in a areas of practice coupled with board certification should reduce the likelihood of committing errors or making omissions. This would create an incentive for insurance companies to reduce policy premiums for certified lawyers, not increase them.

Aggravation Without Assured Compensation

The fourth factor is that it takes time and effort to research and prepare the detailed certification application, and it requires more time and effort to study for and pass a certification examination. Once certified, a practitioner needs to maintain a certified level of superior skill both through increased continuing legal education as well as proven concentration in the certified area(s) of practice. Of course, not every practitioner who applies to become a certified lawyer can do so. Adverse peer recognition could preclude approval. Flunking a certification examination could be an ignominious experience. These are risks some lawyers--quite understandably--just won't take!

Once certified, does not mean always certified. Every five years Florida Bar certification must be renewed by an updated application attesting to minimum adherence to a set of standards imposed by The Florida Bar for each area of recertification.

To justify initial and then periodic recertification, there must be sufficient remuneration and/or public recognition given the time commitment. Without assurance that the effort will be worth the aggravation and heightened CLE requirements, some busy, successful practitioners may choose to skip the process altogether. To expect them to support the Bar's certification program would be illogical. Their ability to excel may not be dependent upon enhanced credentials, in any event. Nevertheless, for the vast majority of better-qualified specialists, certification can and should be a substantial benefit to the public and to them.

Eight Ways to Improve the Certification Program

The first improvement would be to create incentives for sustainable economic advantages for board certified lawyers. Each Florida Bar president should make it a top priority to raise awareness about and to proactively promote the certification program by encouraging more and better incentives to become and to remain certified. Further, the board should treat the certification program the way a well run consumer products company would treat its valued trademarks and service marks--Certification should be proudly featured on just about every flat surface whenever and wherever the name "The Florida Bar" is printed. Promotion of the certification program should become ubiquitous in all Bar marketing and consumer awareness promotions, and it should be given greater prominence on the Bar's Web site.

The Board of Governors can and should authorize and fund a study of all known incidences of errors or omissions by certified lawyers (in their area of certification during the period of time in which they were certified). That study--and a comparison to errors and omissions by noncertified lawyers--should be made available to all certified lawyers and all malpractice carriers so that the Bar president would have objective criteria to present to insurance underwriters, and could encourage them to reduce the cost of insurance for certified lawyers generally (and in some areas of certification, considerably).

Second, the Bar should encourage larger law firms, government agencies, and law schools to formally take certification into account when considering compensation, especially for partnership or other applicable professional advancement. The fact of certification ultimately should be a consideration in accessing the potential for greater remuneration.

Third, The Florida Bar should coordinate advertising about certification with all other state bars that offer a certification program. A properly positioned statewide or nationwide advertising campaign would not stigmatize noncertified lawyers and it might encourage many more lawyers to aspire to become certified. The balance between current complacency by the Board of Governors and the heightened value to the public of having more certified lawyers needs to be reexamined. We are missing the boat, here!

Fourth, the Bar should analyze the way that CLE programs and credits are handled. Currently, there is a uniform charge to attend Bar CLE programs. The Board of Governors should authorize and fund an economic analysis to determine whether it would be beneficial to welcome everyone to attend for free. If a luncheon or CLE materials are offered, the actual cost for those should be defrayed. However, it would appear to make better economic sense for the actual Bar CLE programs to be offered for free, for everyone. Noncertified lawyers should be required to pay for each hour of required credit (whether for programs offered by the Bar or offered by private CLE providers). As an incentive to certified lawyers, their registered credits should be free (up to the number of credits required for recertification, and thereafter, the cost should be half that charged to noncertified lawyers). This proposal, by itself, would reduce the overall cost of CLE for everyone, and be much fairer to the vast majority of lawyers who do not practice in large law firms.

As matters now stand with respect to CLE, large law firms currently get a "free ride" by ordering a CLE tape that all lawyers in an office can view with each given the opportunity to receive CLE credits at no additional revenue to the Bar. This forces the cost of CLE payments to be higher than would be the case if the only charge were to register credit for a CLE course. An economic study authorized and sponsored by the Bar will substantiate this fact and provide objective data that would help establish the appropriate price to charge for receiving actual CLE credit. The current modality (of charging to attend CLE programs)is fundamentally flawed irrespective of certification and should be reexamined. Let improving the certification program be the rationale to reexamine it.

Fifth, subspecialty certification should be implemented for every area of the law in which it can be shown that there is sufficient demand to justify the effort and expense. Any specialist in medical malpractice, ERISA, products liability, class action litigation, and many defined and recognized areas of concentration should be able and encouraged to seek and obtain subspecialty certification without necessarily having to demonstrate broad competence in more general fields of law, if they are qualified and so desire. It is a disservice to the public not to provide more targeted information. Public and professional choice should establish the parameters, not administrative convenience for the Bar, and not fealty to those of us who already may be certified in broader areas of law.

Sixth, for board certified civil trial lawyers and board certified business litigation lawyers, The Florida Bar board should encourage federal district courts automatically to confer "trial bar" status without examination. That would be a no-brainer for the federal court system.

Seventh, board certified lawyers who join an applicable Bar section in their specialty area of the law should be offered each such section membership at reduced annual dues. The accolade of certification should be accompanied by this simple and poignant economic benefit. Again, the intent should be to cause more lawyers to aspire to and to become certified.

Eighth, all certified lawyers should be required--at least once during their career--to speak at a law school on the topic of board certification. More law students may seek certification if they are exposed to certified lawyers and become aware of the true value of certification to their own career. The Board of Governors also should require that the Young Lawyers' Division-sponsored "Practicing With Professionalism" program include a segment on the value of certification. Not to include it is a genuinely lost opportunity and should be corrected.

Conclusion

Our certification program has come a long way in 20 years, but much is left to accomplish. While our program is considered a model that many other states have followed, and truly is one of the best in the nation, it can and should evolve. The four benefits that flow from certification are a major asset of The Florida Bar, and promoting certification is in everyone's interest. The Florida Bar should create, and propose for approval by the Supreme Court, durable economic incentives to encourage more lawyers to aspire to become and to remain certified. Everyone will benefit. Subspecialty certification should be made available wherever there is demonstrated need and sufficient demand to justify the effort and expense. Greater nationwide institutional recognition of the public benefits of certification coupled with a resolve to expand this valuable program should be a top Bar priority over a sustained period of time. The eight recommendations above present reasonable ways to make certification better, fairer, and more valued. Improving and expanding the certification program is in everyone's interest, and would provide the incentive for more lawyers to become and to remain certified.

Stephen Nagin is a trial lawyer board certified in antitrust and trade regulation law and is a member of Nagin, Gallop & Figueredo, P.A., Miami. He currently chairs both the Intellectual Property Law Committee of the Business Law Section, and the Antitrust and Trade Regulation Certification Committee. He has chaired The Florida Bar Journal Editorial Board and the Antitrust Committee of the Business Law Section.