Certification from a national perspective.

• Author: Brumbaugh, John M.

Information about certification and specialization facilitates the consumer's access to legal services and thus better serves the administration of justice."

So proclaimed Justice Stevens in neatly summing up the mission of lawyer specialty certification in his opinion in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990). From the full-service country lawyer of Abraham Lincoln's day to the 21st century boutique firm lawyer, certification and specialization have become part of the legal landscape.

Where We've Been

The early American "country lawyer" needed to know about all areas of the law, because he never knew what problem would present itself next. In those days, economics and transportation made referrals difficult. With the growth of large cities and the economic boom of the early 20th century came large law firms and the emergence of the "business lawyer," who represented companies rather than individuals and did more office work than courtroom work. De facto specialization has continued to expand, as even the generalist will gravitate toward a particular type of work. Just looking at the number of sections in any bar association confirms that lawyers self-select areas of interest to them.

The ABAs earliest formal recognition of legal specialization was the adoption of Canon 45 of the Canons of Professional Ethics in 1928. It declared that "specialists" were not exempt from the principles of the canons. In 1933, the ABA acknowledged the professional and economic value of specialization by adopting Canon 46. Canon 46 allowed lawyers who undertook specialized legal work exclusively for other lawyers, to advertise such specialized legal work in a "dignified" manner in legal periodicals.

Ethics rules and lawyer specialty certification have advanced together because of the ethical issues involved in lawyer advertising. So as the ABA evaluated changes to the canons from 1964 through 1969, the association was also studying specialization. In 1967, an ABA Special Committee on Availability of Legal Services concluded that recognition and regulation of specialization would improve the availability of legal services. After two years of study, the ABA decided not to pursue a national plan of specialization, but rather to continue studying the experimental specialization programs conducted at the state level.

In 1969, following five years of study and drafting, the House of Delegates enacted Model Code of Professional Responsibility. DR 2-105(A) prohibited a lawyer from holding himself or herself out as a specialist, as practicing in certain areas, or as limiting his or her practice, except for the traditional areas of patent, trademark, and admiralty, or where a state authority had issued the certification. During the time the model code was in effect, lawyer specialty certification programs were starting in several states. California began a pilot program certifying lawyers in the areas of criminal law, taxation, and workers' compensation in 1972. Under the California certification program the applicants were required to meet certain standards, such as a minimum number of years of practice, substantial involvement, continuing education in the field, and passing a written exam.

The Supreme Court of New Mexico adopted a different approach in 1973 by encouraging lawyers to limit their practices to just a few fields of...