1975, July, Pg. 1313. Specialization in the Legal Profession.

• Author: by Lawrence B. Swartz

4 Colo.Law. 1313

Colorado Lawyer

1975.

1975, July, Pg. 1313.

Specialization in the Legal Profession

1313Vol. 4, No. 7, Pg. 1313Specialization in the Legal Professionby Lawrence B. SwartzThe question of specialization is assuming increasing importance in the legal profession. Several states have already adopted plans for designating certain attorneys as specialists, while other states, including Colorado, are closely scrutinizing the issue. The debate concerning the merits and liabilities of specialization is continuing and a growing number of practitioners are being drawn into the debate on both sides of the issue.

The Colorado Bar Association, through its committee on specialization, has proposed a plan for specialization in Colorado which is now under consideration by the state supreme court. This article examines the major issues concerning specialization in the legal profession, and hopefully the issues raised will provide a framework for discussion among members of the legal profession.

Specialization in the legal profession is not a revolutionary concept;(fn1) it began in the United States in an informal manner in the 1800s when a distinction was often made between "court" lawyers and "office" lawyers.(fn2) The trend was encouraged and perpetuated by the growth of the large law firm. Today, an increasing number of lawyers consider themselves specialists in some area of the law, and an increasing number of practitioners, by choice or by chance, find their practice confined primarily to one or a few special areas of the law.(fn3)

The issue of recognition of legal specialists was recently revived in a lecture given by Chief Justice Warren Burger at the Fordham University Law School.(fn4) In his lecture, the Chief Justice advocated a four-point program to provide specialists in the area of trial advocacy. First: Face up to and reject the notion that every law graduate and every lawyer is qualified, simply by virtue of admission to the bar, to be an advocate in trial courts in matters of serious consequence.

Second: Lay aside the proposals for broad and comprehensive specialty certification (except where pilot programs are already under way) until we have positive progress in the certification of the one crucial specialty of trial advocacy that is so basic to a fair system of justice, and that has had historic recognition in the common law systems.

Third: Develop means to evaluate qualifications of lawyers competent to render the effective assistance of counsel in the trial of cases.

Fourth: Call on the American Bar Association, the Federal Bar Association, the American College of Trial Lawyers, the Association of American Law Schools, the Federal Judicial Center, the National Center for State Courts, and others to collaborate in prompt and concrete steps to accomplish this first step in a workable and enforceable certification of trial advocates.

1314The issue in the legal profession today is not really that of specialization as opposed to nonspecialization, even though many writers on the subject would like to characterize the debate in this manner. Specialization, whether officially sanctioned or not, is a reality in the legal profession. The debate concerns the explicit recognition by the legal profession and whether or not standards of specialization are to be promulgated.(fn5) Should the American Bar Association, and/or the associated state and local bar associations, recognize specialization and provide any framework for regulation? As stated by a recent writer on the subject of specialization:The real problem comes in obtaining acceptance of the idea that the public is entitled to be advised by the bar association of those attorneys who possess above average skills and abilities and who have trained themselves or have been trained and are disciplined to accept employment in an adequate number of cases about which they can fully inform themselves as to the legal authorities and evidence.(fn6)

The remainder of this paper is devoted to an examination of the issue of specialization. First, a summary of the arguments both for and against specialization is presented. Such a summary can be extremely useful in evaluating presently existing or proposed plans and in aiding in the preparation of better specialization plans. Second, the Code of Professional Responsibility(fn7) is discussed as it relates to the subject of specialization. Third, several of the existing and proposed state plans for specialization are presented.

SPECIALIZATION vs. NONSPECIALIZATION

If the sheer number of arguments were to decide the issue, the antispecialist, or anticertification of specialists, lobby would prevail. More, and more varied, arguments can be found against specialization than in favor of specialization. However, absolute numbers alone are not sufficient to carry the argument. The weight of arguments which favor specialization counteracts the number of arguments on the other side.(fn8)

Arguments for SpecializationThe basic assumption underlying arguments for specialization is that the public is entitled to the highest quality of legal services provided in the most efficient manner. This assumption is expressed through three primary arguments espoused by those lawyers advocating specialization. The three, interrelated, are difficult to isolate completely for the basis of discussion.

One argument in favor of specialization maintains that specialization will produce a more competent bar. As one advocate states: "I am convinced specialty designation will promote greater competence in the bar."(fn9) Chief Justice Burger cites competency as one of the primary reasons for his belief in a trial advocacy specialty, for he finds that many attorneys are not qualified to be competent trial advocates.(fn10) The belief that specialization, either informal or certified, leads to increased competency is not new. In 1903 Wellman recognized that many lawyers were not competent to be trial advocates because of their lack of experience:The conduct of a case in court is a peculiar art for which many men, however learned in the law, are not fitted; and where a lawyer has but one or even a dozen experiences in court each year, he can never become a competent trial lawyer.(fn11)

It is argued that specialization improves competency by allowing a lawyer to become more familiar with a particular area of the law.(fn12) Today, the law has become extremely diverse and encompasses many areas. The volume of cases and statutes in any given area is constantly increasing. It is no longer possible for an attorney to keep current in all of the areas. Not only is it difficult to keep abreast of current developments, but it is also more difficult to assimilate the rapid changes into an individual attorney's practice.

1315Closely related to the issue of competency is the question of the quality of legal services provided in the United States today, and a great deal of discussion has been concerned with the issue. It is suggested that, by improving the competency of lawyers through a plan of specialization, the overall quality of the legal services provided will improve.

The final reason, and to some writers the most cogent reason,(fn13) is efficiency in the provision of legal services. Obviously, efficiency is in part a function of the competency of the lawyer and affects the quality of legal services provided. Even if a lawyer is proficient in several areas, it is unlikely that he will be efficient in all of them.(fn14) The reason for the inefficiency is that the lawyer must spend more time becoming knowledgeable in an area if he works only occasionally in that area. Therefore, either the cost to the client is higher because of the extra time spent in basic research or the attorney is not billing completely for his time: Only when a lawyer concentrates his practice in particular areas can he charge a fair fee for doing an expert job. A lawyer simply cannot charge most clients for the time spent learning what has to be done.

Only when a lawyer concentrates his practice in particular areas does he make an effective and efficient use of his skills and knowledge.(fn15)

Another writer has noted the potential for smaller costs and increased efficiency to the public resulting from specialization: Theoretically, if a person specializes in a particular area of the law, he should be able to do a better job for the client with a smaller expenditure of his time. Since the lawyer sells only his time and knowledge, specialization would mean both improved service to the public and at a smaller cost to the public.(fn16)

Arguments Against SpecializationLawyers opposed to specialization in general do not believe that specialization will improve the efficiency of providing legal services. Their argument is based upon the belief that specialists will charge more for their services than nonspecialists. Because they charge more, the cost to the public will be greater and there will be no efficiencies realized through specialization.(fn17)

In addition to the general refutation of the claims of efficiency, lawyers not in favor of specialization have raised several other issues. First, they have questioned whether specialization will lead to increased competency. How can a person be sure, they ask, that simply because a lawyer is a specialist he is more competent

1316in his area of specialty than another lawyer? Their criticism is thus really two-fold: what criteria, if any, does...