Thirty years have passed since Chief Justice Warren Burger called for the legal profession to begin certifying specialists in various areas of law. While today it’s more common to hear people question whether more lawyers are needed, there’s a clear need for more certified lawyers.
In the 1973 Sonnett Memorial Lecture at Fordham Law School, Chief Justice Warren E. Burger declared that the legal profession needed to certify attorneys practicing in specialty areas because law school and passing a bar exam alone did not sufficiently prepare lawyers to represent clients in civil and criminal court.1 He recommended that lawyers, law schools, bar associations, and courts collaborate to begin certifying trial lawyers because the quality of trial advocacy is critical to the administration of justice.2 In response, members of the profession established the National Board of Trial Advocacy in 1977.3 It was the first nonprofit organization dedicated to certifying lawyer competence.4 In November of 1973, California became the first state to certify legal specialists in criminal law, workers’ compensation, and taxation.5 Today, there are several national and state organizations dedicated to attorney certification, including Minnesota’s Board of Legal Certification. Certification improves the legal profession, serves the public interest, and benefits individual certified specialists. While we may not need more lawyers, we do need more certified lawyers.
Certification at the National Level
There are 36,560 lawyers that are certified specialists, or 3.03 percent6 of American attorneys. There are 49 specialty certification fields encompassing a broad range of practice areas including maritime, adoption, civil appellate, civil pretrial litigation, criminal trial advocacy, DUI defense, education law, elder law, estate planning, health law, labor, personal injury trial, residential real estate, and social security disability.7 Civil trial practice is the most popular certification, with over 8,000 certified specialists in 2010,8 but health law and elder law have grown the most quickly during the past ten years.9 Private organizations accredited by the American Bar Association, private programs accredited by state supreme court commissions, and state bar associations certify legal specialists or monitor separate third-party certification organizations.
Certification requirements vary from program to program, but typically a lawyer needs to be admitted to practice in at least one jurisdiction; document ongoing law practice in the specialty area for a certain length of time; obtain positive peer references; pass a written examination on the substantive, procedural, and ethical aspects of the practice area; and meet continuing legal education requirements.10 Most programs require lawyers to be recertified every three to five years.
Certification in Minnesota
In Minnesota, the Minnesota Board of Legal Certification has the authority to accredit private agencies that certify Minnesota lawyers as specialists in different practice areas.11 The board accredits and monitors agencies that certify lawyers and monitors public statements by lawyers to make sure they are consistent with Rule 7.4 of the Rules of Professional Conduct.12 Minnesota lawyers can be certified in civil trial practice, criminal law, real property, business bankruptcy, consumer bankruptcy, creditors’ rights, elder law, family law, and labor and employment law.13 At the end of 2010, there were 854 certified Minnesota lawyers in all nine areas combined, or 3.78 percent of the attorneys active and resident in the state.14 The most popular certification is civil trial practice, with 446 lawyers certified as of December 31, 2010.15 The second most popular specialty is real property with 355 specialists.16
Minnesota lawyers who are certified in a specialty area must practice law and be in active status in Minnesota, have substantial involvement in the specialty during the three-year period preceding certification, have at least three verified peer recommendations and additional references from lawyers and judges unrelated to the lawyer, have completed a written examination, provide evidence that they have completed CLE activity in the specialty field, and comply with general CLE requirements in all states wherein they maintain active licensure.17 Minnesota closely tracks the national norms for requirements for certification, popularity of civil trial practice as a specialty, and percentage of specialists as a proportion of the attorney population.
Public & Professional Benefits
It may not be practical or even desirable for every lawyer to aspire to be a certified specialist, but legal certification improves the legal profession and serves the public interest. The Minnesota Board of Legal Certification’s mission and goals include improving the quality and competence of legal services, increasing the public’s access to legal services, and providing information about lawyer certification for the benefit of the profession.18 Legal certification helps improve the quality of legal service and attorney competence, which benefits both the profession and the public. Certification could promote increased public access to legal services, and both the public and legal profession benefit from knowing more about legal certification.
Legal specialization has a direct, positive impact on attorney competence. In most jurisdictions, including Minnesota, attorneys are required to take continuing legal education courses in order to stay licensed. However, attorneys are not required to follow a set CLE curriculum that matches the type of law they practice. Furthermore, attorney performance and knowledge is never formally evaluated after attorneys pass the bar exam. Certified specialists must demonstrate that they are knowledgeable about the type of law they practice, take a set curriculum that covers key aspects of their practice area, and continuously demonstrate over the course of their career that they are still competent in their practice area. The result is that lawyers learn about their specialty in great depth, stay on the cutting edge of their profession, and improve their competence. The general competence level in the legal profession improves as more attorneys become certified and set a higher standard of competence for all members of the profession. The public benefits because they can hire attorneys who are more knowledgeable about their practice area and who can therefore provide higher quality legal services.
Legal certification can help address concerns about public access to legal services. According to an ABA study, members of the general public consider legal services very difficult to purchase.19 “The prospect of [purchasing legal services] is rife with uncertainty and potential risk. When hiring a lawyer, consumers feel uncertain about how to tell a good lawyer from a bad one.”20 The ABA asserts that certification addresses the need for information on attorneys’ qualifications. Not surprisingly, the ABA survey indicated that the general public finds information on specialty expertise to be useful. Many consumers find out about attorney qualifications primarily through advertising. While there remain critics of lawyer advertising, lawyers are allowed to advertise in large part because consumers need information about individual attorneys in order to find legal services. Surely the profession can commit to offer the public good information about lawyer expertise in addition to catchy phrases. “Persons of moderate means who have not made extensive use of legal services” are particularly likely to use attorney advertisements to purchase legal services.21
When Justice Burger made his case for legal certification, professional responsibility rules in most states prohibited lawyers from claiming that they were specialists in a particular type of law. It was not until 1991, almost 20 years after states began certifying lawyers as specialists, that the United States Supreme Court ruled that states could not ban statements that were not “actually or inherently misleading, such as certification as a specialist by bona fide organizations.”22 The court found that “disclosure of information such as [attorney was certified by the National Board of Trial Advocacy] serves the public interest.” The Minnesota Rules of Professional Conduct prohibit lawyers from making “false or misleading communication[s] about the lawyer or the lawyer’s services.”23 The Rules permit a lawyer to communicate the fact that “the lawyer does or does not practice in a particular field of law.”24 A lawyer who is a specialist can communicate that fact, but only if they are certified and clearly identify the name of the certifying organization.25 The state of Minnesota’s ethical rules allow attorneys to advertise, and specifically to advertise that they are specialists. To people of modest means who infrequently use legal services or people who are in need of a lawyer right now (such as a suspect or a defendant in a criminal case), the certified specialist distinction may be the most important information about a lawyer available.
The day has long since passed when lawyers thought that advertising might be a passing fad. Lawyer advertising or “client promotion” is part of the fabric of the legal profession.
The public and the legal profession benefit from information about legal certification because certification, particularly in the context of general information about different types of qualifications, is a tool the public can use to determine which attorney to hire. Information about certification in and of itself is already helping attorneys find competent specialists when they need them, which improves the quality of legal services that clients receive.
Individual Specialist Benefits
Certification can be a pain. Most lawyers thought the last test they would study for and pass was the bar exam. Certification is rigorous, time-consuming, and can be an expensive process. However, becoming a certified specialist is worth the effort because it can attract business, increase an attorney’s hourly rate, improve an attorney’s reputation, help an attorney influence the development of his or her practice area, and provide a sense of accomplishment.
Certification helps lawyers refer work to other attorneys, particularly in jurisdictions where they do not have professional contacts. National certifications, such as certificates issued by the National Elder Law Foundation’s Board of Certification, signal that an attorney meets a set of criteria that are uniform across all jurisdictions. An attorney in California can refer a matter to a Minnesota attorney who is certified by the National Elder Law Foundation knowing that the Minnesota attorney had to meet the same rigorous standards that a NELF-certified attorney in California must meet. In addition to increasing a specialist’s referral business, certification can also be used as a marketing tool to attract new clients, especially since individual attorneys are permitted by practice rules in most jurisdictions to advertise that they are experts or specialists only if they are certified. Martindale-Hubbel has decided to add a certified specialist listing to its directory and explain the significance of certification.26 As previously stated, conveying the relative value of certification to clients may sometimes be difficult, but an individual certified lawyer could emphasize that certification in advertising and explain its value to prospective clients. In an increasingly competitive and niche-oriented legal market, certification can be a way for individual lawyers to brand themselves.
Specialization can be a good argument for increasing one’s hourly rates. Certified specialists should be able to persuade clients that their services are very valuable because they have demonstrated to an objective third party that they meet high standards of knowledge, experience, and competence. Furthermore, courts generally take skill and expertise into account when awarding fees pursuant to fee statutes. Johnson v. Georgia Highway Express, Inc. indicates that courts evaluating fee applications consider the attorney’s skill and expertise and certification is an objective way that an attorney can demonstrate these qualities to a court.27
Individual lawyers can benefit from creating, designing, and sponsoring certification programs. Creating a strong certification program helps brand, define the scope, and enhance the credibility of services offered by attorneys practicing in a specialist or niche area in the legal market. Sponsoring attorneys can shape the continuing legal education and other criteria that are essential to expert practice in their field. Sponsoring a certification program, or certification alone, can boost an attorney’s confidence and help make them a leader in their practice area.28
Arguably, certified specialist should be held to a higher standard of care. Certified specialists benefit from increased referrals, special advertising rules, leadership opportunities, reduced malpractice rates, and prestige. With these powers should come the corresponding responsibility. Attorneys personally benefit from improving their performance in order to become certified specialists. Perhaps more importantly, certification, through increasing competence, serves the public good. Justice Burger’s arguments made almost 30 years ago remain true today: “[B]eyond any particular system … is the fundamental fact that how lawyers are trained—during and after law school—will determine their skills as advocates and ultimately the quality of our justice.”29
But only some courts have held that an attorney who holds him or herself out as a specialist or expert in a particular specialty is to be held to the standard of care for a reasonably prudent expert attorney practicing in the specialty field.30 If certification poses a potential risk for attorneys that courts may hold certified specialists to a higher standard of care when determining whether an attorney has committed malpractice, it is not a significant risk nor one that ought to deter anyone. Heightened standards are applied to attorneys who hold themselves out as experts even if they are not certified, and an attorney does not per se have to be a certified specialist to be held to a higher standard of care. Certified lawyers are less likely to be sued for malpractice because they typically make fewer basic mistakes than uncertified lawyers practicing in the specialty area.31 Certified lawyers have negotiated discounted malpractice insurance rates.32
Practicing law is not easy today. If you are in private practice, business is competitive. If you are in the public sector, there is oftentimes too much business. Making time to excel in the profession is not easy if you want to live a balanced life. Perhaps lawyers need simply to reflect on the words of Mahatma Gandhi. “Infinite striving to be the best is man’s duty; it is its own reward.”