General Practice, Solo & Small Firm DivisionTechnology & Practice Guide

American Bar Association
General Practice, Solo, and Small Firm Division

The Compleat Lawyer, Fall 1996, Vol. 13, No. 4

Lawyer Certification Defining and marketing what lawyers do best

BY RICHARD HOWLAND

Richard Howland is a small firm practitioner in Amherst, Massachusetts.

If you were suffering a heart attack (or thought you were, which is about the same thing), you would go to a medical center immediately, but would you ask to see an obstetrician? Assuming you were able to make your wishes known, you would probably ask to see someone with expertise in cardiology. In a complicated professional arena, it is both reasonable and necessary for the profession to define practice areas and certify those who are qualified to practice within those areas.

When I first began serving as the GP Section liaison to the Standing Committee on Specialization, my intent was to resist the trend toward national lawyer certification and specialization. At the first meeting I attended, it became evident that those of us who believed that certification and specialization represented a threat to general practice or the practice of law as we know it were not going to win the battle. I decided to rethink the entire matter to see where our special and unique type of solo and small firm practice--often called general practice--could survive and even thrive in the face of national specialization and certification.

I believe that serious resistance to lawyer certification is short-sighted, professionally suicidal, and noncompetitive. Certification will come, and it will be national and even international in its application and effect. It is time for us to define what we do best and learn how to market ourselves to our clients and the public effectively.

Specialization and Certification
The primary function of the Standing Committee on Specialization is to approve certifying organizations. These may be private or public entities, state or local bar associations, professional associations, or ABA sections. Considerable time is spent in defining and refining the mission and position of the proposed specialty in the legal industry. Discerning the collection of skills and expertise discreet from all others--in other words, a speciality--requires sophisticated analysis.

There are now approximately 58 certifying organizations in the nation (the number often increases), including several state bars primarily in the west and south. A survey of lawyers who applied for and received certification as specialists in various fields, which was commissioned by the ABA Standing Committee on Specialization, revealed that many of them could be described as solo and small firm lawyers, most of whom would describe themselves as general practitioners. The survey found:

  • Most solo and small firm practitioners with more than five years of practice have confined their practice to not more and usually less than four recognized legal specialties. These areas may have fuzzy boundaries, as all law practices must ultimately be in harmony with local needs and demands. For instance, mortgage financing is vastly different in an urban setting than in a Midwestern farm environment. Lawyers in both practices would tend to see themselves as conveyancers, although they do not necessarily do the same thing.
  • Most areas of the United States have some large law firms where each lawyer or group of lawyers practices in fairly well-defined (by the firm) practice areas. Most of the lawyers in these firms receive the bulk of their training and practice habits and derive their expertise from the law firm itself. Lawyers who have achieved partnership in these firms by and large choose not to expose themselves to certification exams for specialization. It is probably true that in a large firm, certification of individual lawyers would not enhance their competitive position in the legal or business community because their position is derived from the law firm's reputation and not from some external certifying agency.
  • The category of solo and small firm practitioners includes a disproportionate number of younger, inexperienced, and minority lawyers. For some, getting into the game or breaking through the glass ceiling has been denied, perhaps for unfair reasons such as race, gender, background, college choice, or a disability. For them, certification and specialization provides the missing competitive edge, the cannon to aim at the large firm, self-certified specialist in an effort to capture or retain a share of the market.
What Kind of Certification Is Needed?
The current interpretation of the ethics of lawyer advertising appears to grant lawyers a license to claim practically anything in most markets. A great many lawyers who advertise are not reluctant to award themselves superhero abilities of "metalegal" proportions.

The legal profession has allowed itself to self-certify its own experts, a concept that boggles the skeptical mind. The only comprehensive exam and subsequent certification for all of the nation's lawyers is a state (or district) bar exam, resulting in unrestricted certification as general practitioners. Then, released to prey upon the public (and fellow lawyers, I must say), most new lawyers experience a degree of on-the-job training, getting their first taste of certain specialties. After five years of practice, their areas of expertise are no longer quite as transcendental and transferrable as when they really knew practically nothing of value.

Most states have adopted continuing legal education requirements of some sort. The law is simply too vital and metamorphic, and the profession is by nature too dynamic, to allow us the luxury of basing a full career on a preliminary legal degree or education. Rather, lawyers need constant nourishment, refreshment, and development.

General Practice Certification
What does "general practice" mean, and how should it be developed, defined, certified, and examined so that our clients can be confident of our credentials? The reasons for general practice certification seem very clear:

  1. To enhance our professional image for competitive and economic purposes.
  2. To level the playing field between solo and small firm practitioners and the rest of the profession.
  3. To provide lawyers, especially young ones, with the opportunity to achieve credible professional standing with the public.
  4. To enhance the public's opinion of the practicing bar.
  5. To elevate the standards of practice for the profession.

A New Name
The concept of "general practice" incorporates a sense of broad, even nonspecific, competence across the legal spectrum. Unfortunately, the name also conjures up a stereotype of the practitioner who knows nothing about everything or a little bit but not enough about anything.

To dispatch this potential for confusion, a new moniker may be the right first step. The name must capture the image of a person who can appreciate the complexities of an infinite number of legal problems at the first interview, knows how to listen, has a strong ethical understanding, carries out a well-organized office practice, has superior analytical and diagnostic skills, and is an expert in some subspecialty.

In large firms, this lawyer is often called a "rainmaker," and may be the overall administrator who harmonizes the various issues and strategies, makes decisions, and keeps the client well informed and educated about the case. In the largest firms, these lawyers may spend comparatively little time in "practice" but a substantial amount of time holding clients' hands and reviewing documents and materials generated through the efforts of associated counsel (of whatever level). Ultimately, the lawyer may be responsible for determining the fees and billing method.

The Ultimate Goal: The Best Legal Services
In the future, the general practitioner may (1) take on cases that fall within his or her areas of expertise; (2) be a "rainmaker" for the larger community of solo and small firm lawyers; and (3) offer low cost services to the public, such as simple divorces in cases that don't involve children or assets, small estate wills, trusts, tax filings, small business daily issues, permits, zoning, and contracts. Complex issues outside of the lawyer's areas of expertise would be referred to other lawyers, with subsequent light management. Clearly, the type of case and situation would govern the nature and extent of the referral and the extent to which a continuing relationship is maintained with the referring lawyer.

Cases would be identified and channeled in the appropriate direction, so general practitioners would avoid the cases that require an enormous amount of a specialist's attention, and that are either total losers or at least unprofitable for most general practitioners. In this system, the specialist would have the benefit of receiving the referral and preliminary analysis from at least one other lawyer--the referring, general practitioner.

The truly general practice of law is the most important legal service to the public, many of whom have little access to our most important product--sound advice. Our profession must develop new strategies to meet the genuine public need for competent legal services.

Copyright (c) 1996 American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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