Vermont Bar Journal
Spring 2007 - #1.
The Case for Attorney Specialization
THE VERMONT BAR JOURNAL SPRING 2007
The Case for Attorney Specializationby Andrew Mikell, Esq.
Specialization: A career option pursued by some attorneys that entails the acquisition of detailed knowledge of, and proficiency in, a particular area of law.As the law in the United States becomes increasingly complex and covers a greater number of subjects, more and more attorneys are narrowing their practice to a limited field or fields. Even small-town general practitioners limit the range of matters they handle to some degree, if only out of practical necessity. Although specialization has become commonplace, the formal recognition and regulation of specialties are still controversial issues in the legal profession.
In the 1950s the Special Committee on Specialization and Specialized Legal Education of the American Bar Association considered whether it should identify, recognize, and regulate legal specialists. In 1969, the ABA decided not to promulgate a national plan to regulate legal specialization until some initial specialization plans could be studied at the state level. In 1971, California became the first state to adopt a pilot specialization program. Florida adopted a designation plan in 1976, and Texas adopted a full certification plan in 1980. Several other states followed suit in the 1980s.
In the late 1970s, the ABA adopted several ethical and disciplinary rules that addressed some of the issues presented by attorney specialization. Disciplinary Rule 2-102(5) restricted the headings that attorneys could list themselves under in telephone books or other directories. Disciplinary Rule 2-102(6) allowed lawyers to list the areas of law in which they practiced but did not allow them to state that they specialized in those fields. Disciplinary Rule 2-105 prohibited lawyers from holding themselves out as specialists in certain areas of law, except for patent and trademark lawyers in states that authorized and approved of those fields of specialization. Ethical Consideration 2-14 also suggested that with the exception of admiralty, trademark, and patent lawyers, lawyers should not represent to the public that they are specialists with special training or ability.
Also in the late 1970s, the ABA House of Delegates adopted a resolution that recommended that several elements be included in any state specialization program. The ABA Standing Committee on Specialization began assisting states in defining and identifying specialty fields and in establishing basic regulatory guidelines.
In 1979 the ABA adopted the Model Plan of Specialization, which incorporated the earlier principles and guidelines developed by the Standing Committee on Specialization. The ABA reached a compromise between two popular types of specialization plans that had developed in the states: designation and certification plans. Designation plans established basic requisites for specialist recognition, such as a minimum number of years in practice and a minimum number of continuing legal education classes, but did not review the expertise of the applicants through an examination. Under the designation plans, lawyers had to apply to designate themselves as specialists in a certain field, and that application had to be approved by the state. However, the standards were not very stringent. In contrast, certification plans required a prior review of the applicant's credentials, such as through a written examination, and also required certain minimum standards. Most certifying mechanisms required that applicants be licensed to practice law, be substantially involved in a particular area of law (such as devoting 25 percent of their practice to their specialty), and be involved in continuing legal education and peer review.
By 1990 thirteen states had formal plans for the recognition and regulation of legal specialties. That number continues to grow, as states adopt designation or certification plans or some variation of the two. The growth of state specialization plans was boosted considerably after the U.S. Supreme Court's decision in Bates v. State Bar of Arizona,(fn2) in which the Court held that states cannot prevent lawyers from advertising. Court decisions since Bates have held that states may regulate attorney advertising to protect the public from false...