Certification by Specialty:
A Panel Discussion
Honorable Alan M. Wilner, Judge of the Maryland Court of Appeals 1997-2007 David E. Rapoport, President of the National Board of Trial Advocacy
Gary W. McNeil, Executive Director of the Texas Board of Legal Specialization
Topic Overview
❖
History and current status of certification by
specialty for attorneys in the United States.
❖
First Amendment cases involving certification by
specialty.
❖
Governing Maryland law.
❖
Discussion: Is change needed?
❖
Discussion: If so, what changes best serve the
History and current status of certification
by specialty for attorneys in the United
Aware of pioneering work on specialty certification in Texas and
California, at the 1973 Sonnett Memorial Lecture at Fordham Law
School Chief Justice Warren Burger made the case for certification for
trial advocacy…
system of
certificatio
n for trial
advocates
is an
imperative
and long
overdue
Burger, W.E., The Special Skills of Advocacy: Are Specialized Training and Certification of
Advocates Essential to Our System of Justice?, 42 Fordham L. Rev. 227 (1973)(copy in
1971-1990
• 5 of these boards were formed by states: California, Texas, Florida, Minnesota and North Carolina.
• 2 of these boards were formed by not for profit organizations with substantial ties to existing bar institutions
• These 7 boards have been in continuous operation since formation and their relationships with one another are collaborative.
• Announced in February of 1971 as the first attorney specialization certification program in the United States.
• Began operations in 1973 with three practice areas initially available: workers' compensation, criminal law, and tax law.
• Certifies attorneys in 12 select areas of law
• Approximately 3% of practicing attorneys in California are certified by CBLS
• Non-profit organized in 1972.
• ABA accredited in 1995 (ABA began
accreditations in 1993)
• Certifies attorneys in two specialties:
• Authorized by the Texas Supreme Court in 1974
• Certifies attorneys in 21 select areas of law
• Approximately 10% of practicing attorneys in
Texas are certified by TBLS
• Non-profit organized in 1977
• First ABA accredited certification board
• Largest national attorney specialty certification program and 4th largest certification program overall
• Certifies attorneys in five specialty areas: • criminal trial advocacy
• civil trial advocacy • family trial advocacy
• social security disability trial advocacy and • civil pretrial practice
• Program reviewed in Peel v. Attorney Registration and Disciplinary
Commission of Illinois, 496 U.S. 91 (1990)(discipline for attorney’s
letterhead advertisement stating he was a civil trial specialist
certified by the National Board of Trial Advocacy violated the First Amendment) and Hayes v. N.Y. Atty. Griev. Comm., 672 F.3d 158 (2d. Cir. 2012)(New York disclaimer requirements violated First
• Authorized by the Florida Supreme Court in 1982 • Certifies attorneys in 24 select areas of law
• Approximately 7% of practicing attorneys in Florida are certified by the Florida Bar
• The second largest attorney specialization program in the country with the second highest percentage of board
certified attorneys
• Program reviewed in Doe v. Fla Bar, 630 F3d 1336 (11th Cir.
• Authorized by the North Carolina Bar in 1983 and
began certifying legal specialists in 1987
• Certifies attorneys in 11 select areas of law
• Approximately 5% of registered attorneys in
North Carolina are certified specialists in their
field.
• Executive Director Alice N. Mine is also currently
serving as the Chair of the ABA Standing
• Authorized by the Minnesota Supreme Court to
certify attorney specialists in 4 select areas of the
law in 1987
In 1969
the State Bar of Texas
appointed a committee to study
specialization
In its 1972 Report the Committee
concluded:
• de facto specialization already existed
• the public would benefit from regulated
specialization
1974
The Texas State Bar presented a plan
to the Supreme Court of Texas,
which approved it
1975
The first group
is certified in the areas of
• A regulatory program designed to
enhance practice in a specialty area
• Recognition of legal specialties – think
medical profession
• Designed to provide information to
consumers
• THIS WAS BEFORE LAWYERS WERE
ALLOWED TO ADVERTISE.
BATES AND O’STEEN CASE
DECIDED BY U.S. SUPREME COURT.
THE DAY THE EARTH REALLY STOOD STILL:
MOST LAWYERS ESTABLISH A PRESENCE ON THE
WEB
• FIRM WEBSITES • PROFESSIONAL
• SUPER LAWYER, ASSOCIATIONS
ET AL
1990 to 2014
• ABA accreditation standards were developed
• ABA Standing Committee on Specialization developed and hosts
annual Specialization Roundtable
• More certification boards form for a new total of 11 state boards
and 7 non-profit national boards
State Bar of Arizona Legal Specialization and MCLE State Bar of California Office of Certification
Florida Board of Legal Specialization and Education Certification Program Louisiana Board of Legal Specialization
Minnesota State Bar Association
New Jersey Board of Attorney Certification New Mexico Board of Legal Specialization North Carolina Board of Legal Specialization
South Carolina Supreme Court Commission on CLE and Specialization Tennessee Supreme Court Commission on CLE & Specialization
Texas Board of Legal Specialization
American Board of Certification
American Board of Professional Liability Attorneys National Association of Counsel for Children
National Association of Estate Planners & Councils Estate Law Specialist Board, Inc.
National Board of Legal Specialty Certification (formerly the National Board of Trial Advocacy)
National College for DUI Defense, Inc. National Elder Law Foundation
Leading State Programs
Leading State Programs
Board Certified Physicians
Approx. 82% of Total
Board Certified Attorneys
Approx. 3% of Total
As Stated by the Texas Board of Legal Specialty Certification
"promote the availability, accessibility
and quality of the services of
attorneys to the public in particular
areas of the law... and advance the
standards of the legal profession."
Objectives of Attorney Specialty
As Stated by the National Board of Trial Advocacy
“Inform and educate the
public concerning legal
representation by board
certified specialists.”
“Recognize and promote
excellence in legal
advocacy through a
national program
certifying specialists
predicated on high
standards of
demonstrated
competence and
integrity.”
Objectives of Attorney Specialty
As Stated by North Carolina’s Board of Legal Specialty Certification
“First, the program assists in the delivery of legal services to the public by identifying to the public
those lawyers who have demonstrated special knowledge,
skill, and proficiency in a specific field. By identifying these lawyers,
members of the public can more closely match their needs with
available services.”
program seeks
to improve the
competency of
members of
the bar by
establishing an
additional
incentive for
lawyers to
participate in
continuing
legal education
and to meet
other
Objectives of Attorney Specialty
• Licensed five years
• Concentration in specialty area
• Specific tasks
• Continuing legal education
• Peer review
• Written exam
• Every five years
• CLE
• Continued practice in the area
• Peer review
First Amendment cases involving
certification by specialty:
Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990).
Ibanez v. Fla. Dep’t of Bus. & Prof. Reg., Bd. of Accountancy, 512
U.S. 136 (1994).
Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990)
“In Peel, the Supreme Court considered a prohibition against an attorney’s advertisement that stated that he was a civil trial specialist certified by the NBTA. The Court held, 5 to 4, that absolute prohibition of the certification statement violated the First Amendment.”
• Per plurality state “could require a disclaimer stating that the NBTA is a private organization not affiliated with, or
sanctioned by, the State or Federal Government.”
• 6/3 split on
whether
Ibanez v. Fla. Dep’t of Bus. & Prof. Reg., Bd. of Accountancy,
512 U.S. 136 (1994).
not false,
deceptive, or
misleading can
be restricted,
but only if the
State shows
that the
restriction
directly and
materially
advances a
substantial
state interest in
burden is not
slight, and
“[m]ere
speculation or
conjecture” will
not suffice;
rather the
State “must
demonstrate
that the harms
it recites are
real and that its
restriction will
Hayes v. N.Y. Atty. Griev. Comm., 672 F.3d 158 (2d. Cir.
2012)
the certifying
organization is
not affiliated
with any
governmental
authority
certification is
not a
requirement
for the practice
of law
Certification
does not
necessarily
indicate greater
competence
than other
attorneys
experienced in
this field of law
Hayes v. N.Y. Atty. Griev. Comm., 672 F.3d 158 (2d. Cir.
2012)
the certifying
organization is
not affiliated
with any
governmental
authority
certification is
not a
requirement
for the practice
of law
Certification
does not
necessarily
indicate greater
competence
than other
attorneys
experienced in
this field of law
The rulings
RULE 7.4 COMMUNICATION OF FIELDS OF PRACTICE
(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law, subject to the
requirements of Rule 7.1. A lawyer shall not hold himself or herself out publicly as a specialist.
(b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the
designation "Patent Attorney" or a substantially similar designation.
Rule 7.4 Communication of Fields of Practice and Specialization
(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.
(b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation.
(c) A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation.
(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.
48 states have rules that permit lawyers to identify themselves as
specialists. The rules of 32 of these states are similar to the ABA’s model rule, although some of these require state board or state court approval of the certifying body. Many of the states that have not adopted the Model Rule require any claim of specialization to be accompanied by various forms of disclaimers, such as a statement that the state does not certify lawyers as specialists. Two of the 48 states, Minnesota and Missouri, permit identification of a lawyer as a specialist even in the absence of
certification, but require disclosure that there has been no certification by an organization accredited by a state board or court. One state, West
Virginia, prohibits lawyers from identifying themselves as specialists except for patent attorneys and proctors in admiralty. One state, Maryland,
prohibits identification as a specialist with no exceptions. Michigan and Mississippi have no rulesconcerning communications about lawyer
specialization.
