How-to Guide, an Implementation Checklist
The terms Subject Matter Panel and/or Experience Panel are used interchangeably and refer to a lawyer referral service area of practice panel requiring certain objectively determinable experience in a particular area of law as a prerequisite to panel membership.
A system that simply has lawyers indicate an area of preference in which they would like to receive referrals does not constitute a legitimate Subject Matter panel. Having panel members self-certify that they are competent to receive referrals in a given area also does not constitute a legitimate Subject Matter panel.
A legitimate Subject Matter/Experience Panel requires that each panel member meet certain objectively determinable criteria. An example would be a requirement that membership on a divorce panel be restricted to attorneys who have handled, to completion, three divorce cases involving child custody disputes within the preceding four years. Another example would be a requirement that panel membership be restricted to attorneys who have completed fifteen units of continuing education in the area of divorce within the past twenty-four months.
The idea is not the establishment of a legal specialization program; in fact this should be carefully avoided. Instead, the goal is to make sure that each panel member has the basic knowledge necessary to competently handle the referrals they are receiving. The further goal is to be able to give the legal consumer a legitimate reason for choosing to utilize a lawyer referral service when looking for legal counsel.The procedures for establishing such panels are surprisingly simple. First, get the LRIS Committee on board through a program of education. The Committee has to understand the direct and long-term benefits to the Service from Subject Matter panels.
Second, get LRIS panel members on board by educating them to the benefits of such a system. The ability to advertise Subject Matter panels will improve the quality of referrals, especially the quality of referrals from local lawyers.
Third, have LRIS Committee members and respected members from the legal community recommend experience criteria appropriate to local practice. Sit down with local lawyers who are recognized as able lawyers in a particular field and ask them what is the basic background someone must have to handle a case. Again, you want the basic experience necessary not what it might take to qualify someone as an expert.
Fourth, require that panel members prove they meet criteria through documentation instead of putting the onus on the LRIS staff to check out unsupported assertions and do not grandfather anyone onto a panel for which they do not qualify.
GET YOUR COMMlTTEE ON BOARD
The first step is to prepare your committee for the change. Unless the Committee feels that there is a problem with current practice it is unlikely they will opt to establish change and that includes the establishment of Subject Matter panels. Suggestions on how this might be accomplished include:
- Make sure the Committee is aware of each and every complaint or problem that you think would not have arisen in a LRIS which has establish experience and performance requirements as a condition of panel membership. If the LRS staff skips over attorneys when making referrals because they know the attorney is an alcoholic or routinely refuses to accept cases in that area the Committee needs to be informed. The Committee must understand how and why Subject Matter panels will work.
- Ask Committee members whether they would recommend the Service to a family member with a legal problem and have them referred to the next lawyer on the rotational panel. If the answer is no, find out why not. In most cases, they will cite a lack of confidence in the lawyer. Use this as an opportunity to explain how experience panels will help alleviate this problem.
- Ask Committee members if they would hire any lawyer who walked in the front door at their own law firms asking for a job. If the answer is no, point out that without experience panels that the Bar Association is doing exactly that. You should also ask whether they feel all of the current panel members are competent to handle the cases that they are referred. Insist that they be honest in their answers.
- Make sure that Committee Members understand there is any implied representation of competence from the Bar Association that flows from the fact the bar association is making the referral.
- Poll Committee Members as to whether a lawyer who has never handled a criminal case should handle a capital murder case or whether a lawyer one week out of law school should handle a complex medical malpractice action. Once you get your Committee to admit that yes, you should screen lawyers in certain circumstances have passed a major hurdle.
- If you have Committee Members who specializes in just one area ask them if they could competently handle a case in the farthest area of the law from their specialty that you can think of. The goal is to get the Committee to accept that screening is OK.
- Discuss the potential for negligent referral liability for a service that fails to determine whether panel members are even marginally competent.
- Provide the Committee with the American Bar Association Model Rules for Operation of a Lawyer Referral Service.
- Make panel members aware that Services without experience panels will soon be in the minority.
- Make your Committee understand that Subject Matter panels will allow you to compete in the marketplace by giving the consumer a solid reason for choosing to find a lawyer through the Bar Association.
- Call a LRIS that has a successful Subject Matter program and get the names of their Committee members. Have your Committee members call one of their Committee members and find out, lawyer to lawyer, why such panels are a good idea.
ESTABLISH APPROPRIATE EXPERIENCE CRITERIA
Once the decision to establish appropriate experience criteria has been made, the next step is to actually establish criteria.
- Obtain copies of panel requirements from other services, especially from services of similar size and demographics. Copies are available from the ABA.
- Establish a small working group of local lawyers who practice in the field and determine what experience a lawyer should have in order to make sure he or she is qualified to handle cases in a particular area of practice. Make sure at least one committee member and at least one existing panel member who receives referrals in the area serve on this working group. Make sure that the group understands their task. The goal is not legal specialization but minimum competence.
- Start small and build. Begin with an area of the law in which there will be a general consensus that experience is both necessary and desirable. Remember that the rules can be modified as conditions change.
- Have the group recommend appropriate experience requirements. Caution them again that the goal is a floor of competence not a bar of admission.
- Insist that panel members be required to verify the claims of experience. It should not be a staff responsibility to disprove those potential panel members have the requisite experience. Make the application include case name and numbers as well as the name and number of opposing counsel, where applicable.
- Be willing to accept a drop off in panel membership and take heart in the fact that people do not reapply. Many of those who choose not to apply will be people you have been secretly hoping to get rid of anyway.
COMMUNICATE WITH PANEL MEMBERS
- Concurrently with the establishment of the small working groups, advise existing panel members that experience requirements will be established. Remind panel members that anyone who has been handling cases in the area will likely meet the new requirements.
- You must explain why this is being done and make a case for why it is essential that it be done.
- Do not grandfather anyone onto a subject matter panel.
- Advise panel members that beginning on a specific date they will no longer be able to receive certain types of cases unless they have applied for and been admitted to the appropriate subject matter panel. Provide each member with a copy of the experience requirements for each area of practice where an experience panel is being established. Inform them that panel application documents will be provided to them shortly.
- Send an application for panel admission, listing the experience requirements; to each panel member you believe will qualify under the rules you have adopted.
COMMUNICATE WITH THE PUBLIC
The establishment of subject matter panels is a major event. Make sure that the event is the subject of a press release. Contact the local media and see if they will do a story on the change. Make sure your Bar Association Newsletter heralds the event. Lawyers in the community are a major source of quality referrals and they need to know that sending someone they can't handle to the LRIS insures that the person will receive competent legal assistance.
There are a number of services that have established Subject Matter panels in the past ten years. Many have done so only grudgingly and with much trepidation. Not one of those has ever gone back on that decision. Almost all report that establishing Subject Matter panels is one of the best moves they ever made. They report benefits they never imagined from less complaints to fewer cases returned for more than one referral in a given case. Subject Matter panels are good for the LRIS, good for the legal consumer, good for the panel members and just smart business.