Certification from a national perspective.

Information about certification and specialization facilitates the consumer's access to legal services and thus better serves the administration of justice."

So proclaimed Justice Stevens in neatly summing up the mission of lawyer specialty certification in his opinion in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990). From the full-service country lawyer of Abraham Lincoln's day to the 21st century boutique firm lawyer, certification and specialization have become part of the legal landscape.

Where We've Been

The early American "country lawyer" needed to know about all areas of the law, because he never knew what problem would present itself next. In those days, economics and transportation made referrals difficult. With the growth of large cities and the economic boom of the early 20th century came large law firms and the emergence of the "business lawyer," who represented companies rather than individuals and did more office work than courtroom work. De facto specialization has continued to expand, as even the generalist will gravitate toward a particular type of work. Just looking at the number of sections in any bar association confirms that lawyers self-select areas of interest to them.

The ABAs earliest formal recognition of legal specialization was the adoption of Canon 45 of the Canons of Professional Ethics in 1928. It declared that "specialists" were not exempt from the principles of the canons. In 1933, the ABA acknowledged the professional and economic value of specialization by adopting Canon 46. Canon 46 allowed lawyers who undertook specialized legal work exclusively for other lawyers, to advertise such specialized legal work in a "dignified" manner in legal periodicals.

Ethics rules and lawyer specialty certification have advanced together because of the ethical issues involved in lawyer advertising. So as the ABA evaluated changes to the canons from 1964 through 1969, the association was also studying specialization. In 1967, an ABA Special Committee on Availability of Legal Services concluded that recognition and regulation of specialization would improve the availability of legal services. After two years of study, the ABA decided not to pursue a national plan of specialization, but rather to continue studying the experimental specialization programs conducted at the state level.

In 1969, following five years of study and drafting, the House of Delegates enacted Model Code of Professional Responsibility. DR 2-105(A) prohibited a lawyer from holding himself or herself out as a specialist, as practicing in certain areas, or as limiting his or her practice, except for the traditional areas of patent, trademark, and admiralty, or where a state authority had issued the certification. During the time the model code was in effect, lawyer specialty certification programs were starting in several states. California began a pilot program certifying lawyers in the areas of criminal law, taxation, and workers' compensation in 1972. Under the California certification program the applicants were required to meet certain standards, such as a minimum number of years of practice, substantial involvement, continuing education in the field, and passing a written exam.

The Supreme Court of New Mexico adopted a different approach in 1973 by encouraging lawyers to limit their practices to just a few fields of practice, based on the belief that voluntary specialization would ultimately improve competence. The New Mexico program allowed the attorneys to self designate and advertise one specialty area, if they concentrated at least 60 percent of their practice in that field and they would return the clients to the referring attorneys after the matter was completed. The other alternative allowed attorneys to designate and advertise that their practice was limited to a maximum of three specialty areas.

The third approach was a hybrid of the California and New Mexico programs and came from Florida in 1974. Texas established a program similar to California's in 1975. In 1979, after observing the success of the California, New Mexico, Florida, and Texas programs, the ABA created, adopted and promoted the Model Plan of Specialization. (3) The ABA model plan included the most successful features of the existing state programs and provided guidance to other states contemplating development of specialty certification programs.

During this time of state expansion of specialty certification programs, the ABA was again reevaluating the ethics rules governing the legal profession, in 1977, the ABA created the Commission on Evaluation of Professional Standards to reconsider the ethical underpinnings and issues of the legal profession. The final result was the Model Rules of Professional Conduct, which were adopted by the House of Delegates in 1983. Model Rule 7.4 continues the historical specialty designations in patent, trademark, and admiralty law. Additionally, the circumstances under which a lawyer is able to state that he or she has been recognized or certified as a specialist in a particular field, are subject to state regulation.

The various state bar associations and supreme courts were not the only ones interested in lawyer specialty certification. Private organizations started certification programs in the 1970's. The Association of Trial Lawyers in America (ATLA), founded the National Board of Trial Advocacy (NBTA), which has been certifying litigators since 1977. In fact, it was attorney Gary Peel's letterhead indicating his certification by the NBTA in civil trial advocacy that brought him and specialty certification to the attention of the U. S. Supreme Court. NBTA now has programs in civil trial advocacy, criminal trial advocacy, and family law trial advocacy.

Other early programs included the certification programs of the American Board of Certification (ABC), which is sponsored by the American Bankruptcy Institute and the Commercial Law League of America. ABC offers specialty certification programs in business bankruptcy, consumer bankruptcy, and creditors' rights.

Other national programs include those of the American Board of Professional Liability Attorneys in accounting professional liability, legal professional liability, and medical professional liability. The Estate Law Specialist Board, which was established by the National Association of Estate Planners offers specialty certification in estate planning law, and the National Elder Law Foundation certifies attorneys in the field of elder law.

The ABA revisited specialty certification as part of the Ethics 20004 revision of the model rules, and the ABA recognized that specialization is a reality in the modern practice of law. Model Rule 7.4 is now titled Communication of Fields of Practice and Specialization. The rule continues the traditional delineation of patent and admiralty designations. Rule 7.4 also provides a basis for lawyers to state that they are certified as a specialist if they have been certified by an organization that has been approved by an appropriate state authority or an organization that has been accredited by the ABA. (5)

In 1990 the ABA published Model Standards for Specialty Areas, offering proposed standards for 24 areas of the law. The ABA's Standing Committee on Specialization believed that uniform standards would enhance public understanding of specialization plans. In 1992, the ABA delegated to the Standing Committee on Specialization, the task of creating standards for the accreditation of private, attorney certification organizations, and a mechanism for such accreditation.

Where We Are Now

In the aftermath of the Peel decision, several states revised their disciplinary rules to allow truthful communication about specialty certification. Currently there are 18 states that recognize ABA accreditation of certifying organizations in some form. In addition, there are 10 other states with specialty certification programs sponsored either by the bar association or a supreme court commission. There are seven states that require certified attorneys to include disclaimer language with an attorney's listing of a specialty certification. Finally, another seven states and the District of Columbia do not restrict communication of specialty certification, nor do they have state sponsored programs. In all, 43 states either sponsor their own specialty certification programs, recognize ABA accreditation of certification programs, or do not prohibit communication by lawyers about specialty certification.

Looking at all the programs across the country, there are 34 areas of specialty certification, ranging from general national programs such as civil trial advocacy to specific state programs such as Ohio workers' compensation. Some of the older programs such as Florida's have many options, while other states limit the number of specialty areas that will be offered. In Arizona, the substantial involvement requirement of at least 50 percent of a lawyer's time necessarily limits the number of specialty certifications a lawyer can hold.

From a national perspective, there are three state programs that are leaders in the field of specialty certification: Florida, Texas, and California. These three states combined have over 14,000 certified specialists in 22 areas of the law. Florida has the most areas for certification with 19, covering everything from civil trial practice to aviation law.

One function of the ABA Standing Committee on Specialization has been to collect statistics on lawyer specialty certification programs nationwide which it has done for the past eight years. Below is a chart showing the growth on a national basis covering all the areas for state and private certifying organizations.

A look at the 2001 data as a whole reveals that the number of lawyers to whom specialty certificates have been issued continues to grow steadily. There are now 27,702 holders of specialty certificates in the legal profession, which represents a 4.3 percent increase over 2000. Overall the number of certified specialists has increased by 53.7 percent since the standing committee began keeping national statistics in 1994.

With respect to specific fields of practice, the mix of specialties in which certification is available has changed little. Civil trial advocacy continues to be the largest area in which specialty certification is sought, accounting for 26 percent of the total number of certificates that have been issued to date. The combined category of criminal law and criminal trial advocacy is the second most common area with 10 percent of the total, followed by family law with nine percent, and real estate, wills, trusts and estates and personal injury trial with eight percent each.

Growth rates for different specialties vary widely, but for the most recent data available, the rates mirror the patterns reported over the past five years. Areas growing faster than average, include workers' compensation, elder law, labor law, and health law. With the exception of bankruptcy, the programs developed for these high-growth fields are relatively new. Balancing these high growth areas are more "traditional" practice areas in which certification is available. Programs in these areas, including criminal practice, family law, real estate and tax law, are older and more established.

The Standing Committee on Specialization sponsors an annual national roundtable that brings together program administrators and board members from state and private pro grams to discuss legal developments and emerging issues in the field. Participants are able to focus on developing approaches to the elimination of ethical, administrative and technical barriers to the growth of lawyer specialty certification. Recent issues confronting the legal system in general and lawyer specialty certification in specific include:

* Interruptions in full-time practice, such as being called to National Guard duty or maternity/paternity leave. How does such an interruption affect recertification in terms of full-time practice in the prior five years?

* Litigation requirements in fields where ADR is becoming more prevalent;

* Appeals following denial of certification or recertification;

* Judges as certified specialists. In Texas and Florida, in most practice areas, judges can retain their certification;

* Ethics issues as they relate to certification and recertification.

The roundtable touches on issues of national relevance and allows participants to give their program's perspective on a variety of issues and learn from other programs' successes and failures.

The standing committee also serves as a clearinghouse for information, via electronic newsletters, and its Web site, and works with state bar associations and supreme courts to increase recognition of lawyer specialty certification in general and recognition of ABA accredited specialty certification programs in specific. This national perspective gives each state's program directors an opportunity to learn, pool knowledge, and expand their programs without recreating the wheel.

Where We Are Going

Lawyer specialization is here to stay. In an increasingly complex legal world, no lawyer can be competent in every field. For consumers, referring sources, and employers, specialty certification provides additional information about lawyers. For those attorneys who have made the effort to document their involvement in the field, there is personal satisfaction and professional cachet from the recognition by their peers.

Marketing will be the key to in. creased growth in the number of lawyers seeking specialty certification. By increasing public awareness of the value of stringent standards, continuing education requirements and positive peer review, the public will come to demand board certified lawyers for their legal work. By increasing lawyers' awareness of the value of specialty certification, the profession will be able to fulfill the ABA model plan's goals of providing greater access by the public to appropriate legal services; identifying and improving the quality and competence of legal setvices; and providing appropriate legal services at reasonable cost.

To that end, the standing committee is joining with other members of the specialty certification community to create a Strategic Communication Plan, which will help bring lawyer specialty certification into the 21st century. The Florida BLSE is currently expanding and customizing the Strategic Communications Plan for use in elevating awareness of certification in Florida. It is the vision of the standing committee that consumers of legal services better understand that certified legal specialists possess advanced training and expertise, that consumers rely on the certification to help them make informed decisions in finding and hiring a lawyer; and that lawyers understand the value of certification to their professional growth and practice development and seek certification in the areas of law in which they specialize.

Number of Certified Specialists

1994   18,018

1995   19,547

1996   21,016

1997   22,660

1998   24,033

1999   25,357

2000   26,502

2001 27,702

Note: Table made from bar graph

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

(2) See Standing Comm. on Specialization, American Bar Ass'n, Model Plan of Specialization (adopted by the House of Delegates August 15, 1979).

(3) The Ethics 2000 Commission was formed in 1997 to review the Model Rules of Professional Conduct. It submitted a report to the House of Delegates at the August 2001 Annual Meeting. The report was debated at the August 2001 annual and February 2002 midyear meetings. The changes to the model rules as amended during the debate were final at the end of the February 2002 Midyear Meeting.

(4) Model Rule 7.4(d).

John M. Brumbaugh is chair of the ABA Committee on Specialization and former chair of The Florida Bar's Board of Legal Specialization and Education. Tori Jo Wible is ABA staff counsel to the committee.