Florida bar board certification: taking the high road.

• Author: Artigliere, Ralph

It is a rough road that leads to the heights of greatness." Lucius Annaeus Seneca, Epistles, 84, 13

Certification in Florida is 20 years old, and we have come a long way. In many respects, the story of the journey is quite remarkable, involving the participation and, in some cases, the blood, sweat, and tears of many fine lawyers and the Bar staff. Most things worth having or achieving in life do not drop into our laps. More often, it takes skill, effort, diplomacy, and stamina to achieve important goals. By understanding the road that brought board certification to its current status in Florida's legal landscape and the road that lies ahead for the Bar's leadership and the Florida Supreme Court in maintaining and improving the program, all Florida lawyers should take pride in the achievement of board certification and encourage others to support this program. Lawyers who are or who may become eligible as specialists should be inspired to make the commitment to themselves, their families, their colleagues, and their clients to become board certified in one or more areas of law. Like the development of the board certification program, the road will not be easy. However, as the Bar leadership, justices of the Supreme Court, and many volunteers who have worked on this important program thus far have confirmed, it is worth the journey!

Vocal Advocates for Specialization

In a speech to the National Conference of Bar Presidents in August 1966, on Increased Availability of Legal Services Through Specialization, former Florida Bar President Chesterfield H. Smith wisely envisioned specialization as both "desirable and inevitable" and that its acceleration would "at least mitigate the existing deficiency in available legal services." (1) "A man ahead of his time, he recommended a relaxation of then existing prohibitions against advertising in the Canons of Ethics to permit a "restrained and dignified announcement of specialization" suggesting it "might well give a potential client some assistance in intelligently selecting a proper lawyer." (2)

Smith found that the profession's resistence to specialization created a "quandary of the public in choosing an individual lawyer without knowing the branch of law to which he restricts his practice" and, therefore, to have theeffect of "lowering the public's view of the legal profession as a whole." (3) Smith advocated "bringing more intelligence into the initial attorney-client contact" as a "a small step forward ... in solving the most monumental problem facing the bar--that is--to demonstrate to the average citizen the tremendous area of unavailed legal service which could be beneficial to him if utilized, and to so structure the legal profession that effective legal services at reasonable cost are available to every citizen who has a legal problem." (4)

When Burton Young became president of The Florida Bar in 1970, he was absolutely convinced that specialization was an "idea whose time had come." It soon became apparent that Mr. Young's enthusiasm for the concept was not shared by the majority of the Bar's leadership. (5) The Florida Bar was invited by the American Bar Association to become one of the pilot states in certifying attorneys, but Young was not able to convince the Board of Governors to accept the ABA's offer. Most board members thought the concept of specialization was unpopular with "grassroots lawyers" and believed there would be great resistence to competency testing and CLE requirements.

The Board of Governors did agree, however, to the appointment of a blue ribbon five-year planning committee with a mandate to review the subject for further consideration. In the April 1971 issue of The Florida Bar Journal, the committee's report indicated that "specialization is an extremely important possible future development in the field of law" but the committee "did not feel that there was any present desire on the part of the leadership of The Florida Bar to pioneer in the field of specialization." (6)

Chief Justice Warren Burger generated further impetus for certification, particularly in civil trial, in a lecture delivered at Fordham University Law School in 1973. Expressing his deep concern over the quality of some trial lawyers practicing in U.S. courts, the Chief Justice spoke about the English system of advocacy training, involving a period of apprenticeship with an established barrister, and asked what can we learn? First, he observed that "lawyers ... cannot be equally competent for all tasks in our increasingly complex society." Secondly, "legal educators can and should develop some system whereby students or new graduates who have selected, even tentatively, specialization in trial work can learn its essence under the tutelage of experts, not by trial and error at clients' expense;" and third, "ethics, manners and civility in the courtroom are essential ingredients and the lubricants of the inherently contentious adversary system of justice." (7)

Dean Robert B. McKay of New York University Law School observed that the legal profession has "marched up the hill of specialist certification only to march down again in the face of opposition from practitioners not discontent with the absence of regulation." (8) In response, Burger stated, "our commitment to the public and to the system of justice must not let us be marched down that hill any longer." (9)

Eventually, within The Florida Bar, the road began to turn. Specialization plan options were presented to the membership in 1974 and in a letter to Bar President Earl Hadlow dated February 8, 1974, Chesterfield Smith again spoke to the value of certification as then President of the ABA. "From every corner of both the legal community and the public, I hear questions as to whether or not the organized bar is doing all that it should to provide the kind and quality of legal services needed by the public. Your effort to regulate specialization in Florida is a substantial and positive response to these questions. It is a direct attempt to ensure to the public that the quality of legal services, at least in specialty areas, will be continually maintained and enhanced." (10)

Miami trial lawyer Barry R. Davidson envisioned specialization in Florida to be akin to an existing program in California which he distinguished by a single word--"standards." He saw such a plan, in contrast to what was then being discussed in Florida, to be the only way to accomplish the goals of specialization, which he described as a "maximization of excellence in areas of practice of law and a resulting increase of the quality of services rendered to clients." (11) According to Davidson, the California plan incorporated continuing regulation and control and included compulsory continuing legal education and maintenance of standards within a specialty area, which appeared to be an appropriate model for Florida. Davidson's vision was not without support, but it was an idea whose time had not yet come.

Designation Plan

On October 7, 1975, the Supreme Court of Florida approved a designation Plan. (12) In the Bar's petition to the Supreme Court for establishment of the Designation Plan, four goals were cited: 1) To improve the qualities of the services rendered by the legal profession; 2) to disclose the areas of a lawyer's specialization so as to enable the public to make a more knowledgeable and informed choice of attorney; 3) to permit a general practitioner to specialize more efficiently and to better compete with larger firms; and 4) to avoid unduly restrictive administrative machinery which might interfere with increased specialization. The plan was to be administered by a designation coordinating committee appointed by the president of The Florida Bar.

Designation was initially available in 21 approved areas of practice from which a member could select three, providing the member had practiced law at least three years and if, during the three years preceding application, the member had substantial experience in each area selected. Within three years of implementation, the Bar returned to the court for changes to the plan designed to strengthen and improve the criteria for participation. Pre-application CLE was initiated, and certificates of reference were also added as an element for renewal. (13)

In its time, the designation plan provided an answer to advertising opportunities: Lawyers could include their designated areas on letterhead, business cards, in the Yellow Pages, and other law listings. Designation Coordinating Committee Chair Earl B. Hadlow summarized designation as a means to "permit members of The Florida Bar to inform the public concerning areas of law practice in which such members have substantial experience or education. (14)

In less than three years from the implementation of designation, 31 percent of the total membership of The Florida Bar had elected to participate in the program. Approximately 40 percent of the in-state membership had designated, and over 60 percent of the eligible, potentially interested attorneys were participating in the plan. At that time, there were 22,588 members in good standing. (15)

The expansion of continuing legal education opportunities was a natural outgrowth of the Bar's early steps toward specialization. The number of seminars offered by The Florida Bar rose from six in 1974-75 to 51 in 1977-78. (16) While Florida Bar membership increased 23.5 percent in that time frame, Florida Bar CLE registration increased 298 percent. (17) Approval of CLE was the...