Vol. 34, No. 6

Lawyer specialty certification: Competency and marketing

by Timothy Bouch

Lawyers have been engaged in de facto specialization since before the invention of the Yellow Pages. When we graduate from law school, we are expected to be able to practice in any area. But step back a bit; the “general practice lawyer” of Lincoln’s era is gone. Even if we’re in general practice, most of us realize early on that limiting our practices to a few areas we really enjoy is much more satisfying.

But “practice limited to family law” doesn’t sound nearly as good as “certified specialist in family law by the XXX.” How do the bar and its members get from the Yellow Pages to specialty certification?

Patients expect their doctors to be board certified, and many people believe their lawyers are as well. By encouraging certification, the bar can help lawyers achieve high personal satisfaction through professional development and meet the needs of the consumers by providing a valid, objective credential.

What’s in it for lawyers? Well, professional pride in achieving certification—and, in some cases, being able to command higher fees. A lawyer who works in just a few areas of the law becomes more effective and efficient. In the case of bankruptcy lawyers, the bankruptcy code includes certification in the criteria for awarding attorney fees.

Certification has been important to Jill Raspet, a board certified specialist in estate planning and probate law in Wilmington, N.C. “Given my [young] age, it has been very helpful in assuring clients and potential clients that I do know this practice area,” she explains. “I can say that the North Carolina State Bar says that I am a specialist in this field of the law. I know that gives my clients a lot of confidence in my work.

“When I passed the specialization exam, my firm also sent out announcements to all of our referral sources and clients. My practice has really taken off since.”

And what’s in it for bars? First, of course, what’s good for lawyers is generally good for the bar. Also, although it takes time, leadership buy-in, and some upfront costs, a certification program can not only become self-supporting, but can generate revenue as well.

A program run by a bar association or other statewide body typically generates revenue in a couple of ways. The amount generated—and the program’s operating expenses—varies widely, but the average is about $150 per certified attorney for annual fees. The application fees, exam fees, and recertification fees range from $100 to $500 and occur either one time (application and exam fees) or every five years (recertification fees).

But there are so many other benefits that can far surpass the potential revenue. Many bars support certification—either with their own programs or by directing members to the ABA’s own program—because it gives an objective assurance of competency, which reflects well on the bar as a whole. In states where the lawyer advertising rules are more restrictive, a bar’s support for certification is a very real way to show that the bar wants its members to succeed while also adhering to those rules.

It should be noted that ethics rules play a role in whether lawyers can fully reap the benefits of specialty certification. If your state currently has a certification program, or if you’re interested in starting one, check your state’s ethics rules to ensure that lawyers who have earned certification are allowed to communicate that fact. How can the consumer choose a certified specialist if those lawyers who are certified can’t tell anyone?

Let’s take a closer look at certification, from the perspective of the ABA Standing Committee on Specialization.

A brief history

Beginning in the 1970s, some states, through their state bars and supreme courts, began to confer upon lawyers the title of “board certified specialist in xxx.” California adopted a plan to objectively measure competency in 1972. New Mexico followed with a different focus in 1973. In 1974, Florida created a third approach with a designation program that combined the features of the California and New Mexico programs. Texas established a pilot program similar to California’s in 1975. Also during this time, private organizations began certifying lawyers in various specialties, often unregulated.

In North Carolina, an ad hoc committee of the unified state bar reviewed various proposals to improve the proficiency of attorneys and the delivery of legal services to the public. In particular, the committee studied mandatory continuing legal education, specialization, and advertising. After 18 months of study, the committee concluded that the state bar’s goals could best be attained by adopting a plan for the certification of specialists in various fields of law. Attached to its report was a draft of a plan of legal specialization, which, after some modification, was adopted in 1982.

Specialization became much broader in 1990, when the U.S. Supreme Court ruled that the rules of professional conduct must permit lawyers to communicate their certifications, subject to state regulation. In 1992, 11 state bar associations sponsored a resolution, through the ABA House of Delegates, to provide a national means to accredit organizations that confer specialist certifications through a rigorous and objective process. In 1993, the House approved ABA standards to evaluate the programs. The Standing Committee on Specialization drafted the standards and operates the accreditation program.

How are state bars involved?

California, Florida, and Texas have the three largest state programs; these are run by the respective state bars. Of the 16 active state certification programs, nine are run through the state bar (Arizona, California, Connecticut, Florida, Idaho, Louisiana, Nevada, North Carolina, and Texas). Seven are operated under state supreme court programs (Indiana, Minnesota, New Jersey, New Mexico, Ohio, South Carolina, and Tennessee).

South Carolina has a state supreme court commission program. The program is strong, with four areas of certification. New applications from lawyers seeking certification come in each year. However, there is not a strong push from the court for new areas of certification, which other states have used to increase the numbers of certified lawyers—and revenues. In California, for example, the appellate courts asked the Board of Legal Specialization to establish a specialty in appellate advocacy.

Texas, which has a unified bar and mandatory continuing legal education, has one of the strongest programs. The Texas Board of Legal Specialization is the accrediting entity in the state, offering 20 areas of certification.

In another unified bar state, the Florida Supreme Court approves standards in 24 certification areas. The Florida Bar Board of Legal Specialization and Education is the state’s only accrediting body for specialization. The Florida Supreme Court recently approved two new areas: adoption law and education law. The application filing deadline for both is July 31; exams are scheduled for March 2011.

Each state is a little different, but in most states where a state bar or supreme court offers certification, a national certifying organization works with the state programs rather than competing with them. For example, in North Carolina, the American Board of Certification and the North Carolina Board of Legal Specialization have partnered so that North Carolina bankruptcy attorneys have the option to be certified by both the state board and ABC. The written exams are prepared by ABC, which is accredited by the ABA; because North Carolina doesn’t have to write the exams or accredit the program, they save time and expense. In some states, the private certifying programs apply for accreditation to the state and must undergo the same rigorous review by the state as they do in earning ABA accreditation.

What does the ABA do?

The ABA, through the Standing Committee on Specialization, accredits certifying programs. The committee reviews each specialty program for continued adherence to ABA standards every five years. The process involves reviewing the program’s purpose and organizational capabilities.

The program must show that a majority of the decision makers involved in reviewing a lawyer’s application to become certified are also involved in the specialty area. It must demonstrate that it uniformly applies the certification requirements and does not discriminate. The program’s standards for certifying lawyers must also meet ABA standards.

Each standard is evaluated, including the written exam, which is reviewed by a subject matter expert not affiliated with the program. Finally, each program must demonstrate a process for impartial review of denial of certification, recertification, and revocation of certification. The process is analogous to the law school accreditation process; the standing committee evaluates the program, not the lawyers, just as the ABA evaluates the law schools, not the students.

Florida: A case study

The Florida Bar certification evaluates attorneys’ special knowledge, skills, and proficiency in various areas of law, professionalism, and ethics in practice.The Florida Bar Board of Legal Specialization & Education funds an ongoing communication campaign to raise awareness among Florida Bar members and consumers about the merits of board certification. The campaign includes statewide media relations and speaking engagements, internal communication to bar members through targeted e-mail, Florida Bar News articles, electronic newsletters, and presence at various bar functions and CLE seminars.

The Florida Bar’s board certification program budget is completely separate from Florida Bar general revenues, and the program is self-sustaining. Statistics released in December by the Board of Legal Specialization & Education indicate that board certification for Florida lawyers is increasing. The voluntary certification program has grown steadily since its inception in 1982. Applications in 2009 were up significantly, nearly 10 percent, over 2008. This demonstrates the Board’s success in expanding and promoting the program to encourage more applicants.

Florida’s added specialization areas and increase in applications indicate that the Florida Bar’s board certification program is becoming more relevant to lawyers seeking to differentiate their practices.

“The Florida Bar’s board certification program sets high standards for lawyers who aspire to further their professionalism credentials,” says Jesse H. Diner, immediate past president of the Florida Bar. “Attorneys who earn Florida Bar board certification have demonstrated their expertise and commitment to excellence in the practice of law.”

Miami attorney Harry A. Payton holds dual Florida Bar certifications in business litigation and civil trial, and formerly chaired the Board of Legal Specialization & Education. “All other things being equal, informed purchasers of legal services will select the attorney who is certified over the attorney who is not certified,” he says, adding that he believes there will come a day when certification is as important to clients and lawyers as it currently is to patients and doctors.

Tallahassee personal injury attorney Halley B. “Hal” Lewis III, a board certified civil trial lawyer, thinks promoting that all four partners in his law firm are Florida Bar board certified in civil trial has led to increased business opportunities for the firm—which is especially important given that Florida is fairly strict when it comes to lawyer advertising.

“Current advertising restrictions make it difficult for consumers to compare the quality of lawyers’ legal services, so being board certified is really the only way that one attorney can quickly and easily distinguish himself or herself to the general public,” Lewis says. “Being recognized as an ‘expert’ in the field by the Florida Bar carries a tremendous amount of weight in the eyes of our prospective clients.”

Board certified elder lawyer and BLSE member April D. Hill concurs. “As the legal profession moves toward specialization and potential clients become more informed, they look for proof of the attorney’s skills and professionalism,” she notes. “Board certification provides that proof.

“Each year, more potential clients tell me they’ve researched my background and sought me because of my board certification.”

The CLE factor

CLE is an important component of lawyer specialty certification. After Texas instituted certification, TexasBarCLE began offering advanced courses in most specialty areas. According to Gary McNeil, executive director of the Texas Board of Legal Specialization, these courses provide revenue for the state bar and educational and networking assistance for all lawyers, regardless of certification. The TBLS works with the bar to maintain attorney profiles and online listings, as well as other cross-marketing ideas.

The Florida Bar Board of Legal Specialization & Education offers a two-hour CLE at no charge to voluntary bar associations. The board communicates with noncertified Florida Bar members about the professionalism aspects that can improve their legal practices, and encourages them to seek certification.

In general, certified specialists are required to take CLE courses in their specialty area, regardless of whether the state they are in has mandatory or minimum CLE requirements. These certified specialists, more than 32,000 nationwide, are all taking at least 12 hours of advanced CLE each year. For bars with CLE entities, the revenue potential is clear.

For more information

The ABA Standing Committee on Specialization is always willing to assist any organization interested in certification programs—whether there’s a program in place currently, or a bar or other entity is considering starting one. Standing committee members are a great resource for expert speakers. The committee’s specialization Listserv is active and includes program managers from all the state bar, court, and national certifying programs. The Annual Certification Roundtable, where all the program managers gather to share ideas, stories, and knowledge, is another excellent resource.

The standing committee invites you to learn more by visiting www.abanet.org/legalservices/specialization.

Put simply, the only time most lawyers receive any declaration on their competence is when they pass the bar exam. For certified specialists, it happens every five years.

One bar exec’s defense of specialization

Many people who oppose lawyer advertising find specialty certification to be a similarly distasteful marketing tool. One bar exec, L. Thomas Lunsford II, executive director of the North Carolina State Bar, tackles that objection head on:

“The problem with most lawyer advertising is that it is empty, devoid of significant content. The State Bar’s most constructive response to the problem of lawyer advertising during the past twenty years has been the specialization program. Thanks to the unstinting efforts of the Board of Legal Specialization and the various specialty committees, consumers have access to at least one kind of information they can count on. If the State Bar were to get out of the certification business, it wouldn’t diminish lawyer advertising, it would just make it worse.”

Lunsford has more to say about this and other common criticisms of specialty certification in “In Defense of Specialization.” To read the complete piece, click here.