DATE: May 23, 2001
TO: Commission on Multijurisdictional Practice, Wayne J. Positan, Chair
FROM: ABA Standing Committee on Specialization, John M. Brumbaugh, Chair
RE: Commission Request for Comment
The Standing Committee on Specialization would like to offer some additional comments on certain aspects of multi-jurisdictional practice that can be affected by board certification of lawyer specialists. These comments are an extension of the ideas we offered in our memo to you of February 5, 2001.
We approach the general topic of multi-jurisdictional practice from the perspective of the lawyers who have been recognized through the process of board certification as having enhanced knowledge, education and experience in a specialty. Our activities have centered on maintaining expertise on the practices of state and private certifying entities, being familiar with the fine points of administering certification programs for lawyers, and monitoring the wide variety of approaches states employ to regulate lawyers’ use of certification credentials. We have studied attitudes of the general public and lawyers towards board certification and collected anecdotal information about the value of certification as a credential within the legal profession.
One of our Committee's primary functions is to administer a process of accrediting national, privately-sponsored lawyer specialist certification programs which meet ABA standards. So far we have accredited 13 of such programs. Seventeen states now recognize ABA accreditation in their rules governing public disclosure of certification.
Over the last ten years, board certification has grown to the point that over 26,000 lawyers have successfully achieved one or more credentials in over 35 specialty areas. The areas of certification range from civil trial advocacy to immigration and nationality law and tax law to workers’ compensation. In addition to the ABA-accredited programs, ten states have boards which certify specialists under the auspices of a state bar or supreme court and nine others approve programs sponsored by others. More information about the nature and extent of board certification can be found at our website.
The Standing Committee has monitored the public hearings and the written submissions to the Commission via the Commission’s web site. Multijurisdictional practice was a major topic at the our Annual Certification Roundtable in March where representatives of the major certification boards discussed the MJP issues in terms of the realities faced by lawyers in various specialties.
After reviewing, the Commission's "Inventory of Selected Issues on Multijurisdictional Practice," we would like to focus our comments primarily on the area of lawyer competence, and touch on the discussion dealing with safe harbor provisions and counsel of choice.
The Commission has set forth the issue of competence as follows:
Competence. The host state has an interest in insuring that lawyers who counsel its residents are competent. States have several vehicles for testing and maintaining the competence of lawyers admitted to their bars, including bar examinations, requirements that bar applicants graduate from an accredited law school, and CLE obligations. A state may also rely on Model Rule 1.1 and similar rules, which require competence.
With respect to this issue, we believe that specialist certification provides host states with an additional way of knowing whether a lawyer licensed in another state has been recognized as competent in her field of practice. A lawyer certified by either a state sponsored or an ABA-accredited national program has demonstrated substantial involvement in the practice area, passed a written examination, and has documented participation in continuing legal education in their field. Board certified specialists are required to apply for recertification on a regular basis, maintain their level of involvement in the specialty and continue to keep abreast of new developments via CLE credits in their specialty area.
With respect to the "safe harbor" provisions, one of the proposals for addressing multijurisdictional practice safe harbor issues is the so-called "Green Card." A lawyer would register with, and probably pay a fee to, the host state and then would be able to practice to some extent in the host state. The Standing Committee would support such a proposal that included specialty certification as a qualification track for a "Green Card". For example, the host states could set up a two-track system to qualify for a "Green Card", one track would be for certified specialists proposing to practice in their area of expertise in the host state. Obviously, there are many details and scenarios to work through and the Standing Committee welcomes the opportunity to provide input as the Commission moves forward though the process.
As regards the discussion concerning "counsel of choice," we believe that recognition of specialty certification of a lawyer licensed in a "foreign jurisdiction" by a host state furthers the interest of the bar in protecting the interest of its residents in having access to counsel of choice, when that counsel is qualified to handle a client’s problem although a member of the bar of another jurisdiction.
In conclusion, the Standing Committee on Specialization respectfully requests that lawyer specialty certification be considered as part of the Commission’s deliberations on multijurisdictional practice. We welcome the opportunity to assist the Commission by offering comments with respect to any proposal the Commission might develop as it affects lawyers in specialty practice.