The American Bar Association (ABA) policy on specialist certification is embodied in its Standards for Specialty Certification Programs for Lawyers described in the ABA website and in the Model Rule of Professional Conduct 7.4 as amended in 1993 and 1996 as appears below. A few states have adopted this language verbatim, but many have used portions of it to craft ethics rules reflecting local preferences.
Rule 7.4 Communication of Fields of Practice and Certification
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer has been recognized or certified as a specialist in a particular field of law except as follows:
(a) a lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation;
(b) a lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation; and
(c) [for jurisdictions where there is a regulatory authority granting certification or approving organizations that grant certification] a lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization or authority but only if:
(1) such certification is granted by the appropriate regulatory authority or by an organization which has been approved by the appropriate regulatory authority to grant such certification; or
(2) such certification is granted by an organization that has not yet been approved by, or has been denied the approval available from, the appropriate regulatory authority, and the absence or denial of approval is clearly stated in the communication, and in any advertising subject to Rule 7.2, such statement appears in the same sentence that communicates the certification.
(c) [for jurisdictions where there is no procedure either for certification of specialties or for approval of organizations granting certification] a lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization, provided that the communication clearly states that there is no procedure in this jurisdiction for approving certifying organizations. If, however, the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law, the communication need not contain such a statement. (See: www.abanet.org).
A quick glance through the "attorneys" section of the US yellow page directories of any major American metropolitan area will make it clear that many US lawyers specialize in one or more kinds of legal matters.
Like other professionals, many US lawyers concentrate their practices to certain fields. In fact, most specialize to some degree by limiting the range of matters they handle.
An increasing number of US lawyers are choosing to be recognized as having special knowledge and experience by becoming certified specialists in certain fields of law.
A US lawyer who is a certified specialists has been recognized by an independent professional certifying organization as having an enhanced level of skill and expertise, as well as substantial involvement in an established legal specialty. These organizations require a lawyer to demonstrate special training, experience and knowledge to insure that the lawyer's recognition as a certified specialist is meaningful and reliable.
In order to be certified as a specialist under most certification programs, lawyers must:
1. provide evidence of substantial involvement in the specialty area and appropriate references from lawyers and judges
2. take a written examination in the substantive and procedural law in the specialty area
3. demonstrate that they have completed at least 36 hours of continuing legal education courses in the specialty area in the three-year period preceding the lawyer's application for certification
4. be admitted to practice and be a member in good standing in one or more states
5. be re-certified at least every five years and be subject to revocation of certification if they fail to continue to meet the program's requirement
Specialists certification programs available to lawyers are growing both in number and variety. In 1993 the American Bar Association (ABA) adopted a set of voluntary national standards, along with a process to accredit specialists certification programs.
The standards were designed to establish reasonable and valid criteria for granting specialist certification and to provide state authorities with a basis for approving programs which would be recognized in their jurisdictions.
It means that the certifying organization's program has been reviewed by the ABA and has been found to meet its standards.
An accreditation system was developed to provide both lawyers and clients with a way to identify those certification programs that employ adequate methods and criteria to reliably recognize experienced legal specialists and meet ABA standards.
To obtain accreditation for its program, an organization needs to show, among other things, that:
1. It is dedicated to the identification of lawyers who exhibit an advanced level of skill and expertise and to the development and improvement of the professional competence of lawyers.
2. It possesses the organizational and financial resources to carry out its certification program on a continuing basis, and that key personnel have by experience, education and professional background the ability to direct and carry out such programs.
3. The requirements and process for certifying lawyers are not arbitrary, can be clearly understood and easily applied and do not discriminate against any lawyers seeking certification on the basis of race, religion, gender, sexual orientation, disability, or age
4. Each specialty area in which certification is offered is an area of the law in which significant numbers of lawyers regularly practice and is described in terms which are understandable to both lawyers and potential clients.
In 1999 more than 25,000 lawyers hold specialty certificates. Overall, the number of certified specialists has increased by 41 percent since the ABA committee began keeping national statistics in 1994. (Alec M. Schwartz, "Board Certification Rises 41% in Half-Decade", at Lexicon website, http://www.lexisone.com/professionaldevelopment/pdlibrary/certification.html).
Civil trial advocacy boasts the largest number of certifications, with 26 percent of the total certificates issued to date. A combination of the categories of criminal law and criminal-trial advocacy is the second most common area with 10 percent of the total, followed by family law with 9 percent. Personal injury, real estate, wills, and trusts and estates each comprise 8 percent of the total board certifications granted. (Id.).
Professional satisfaction, peer recognition and referrals are most often cited as the primary benefits of specialty certification. Other benefits, shown in a 1996 survey of members of ABA specialty sections, include the availability of an acceptable marketing tool, the creation of national roster of specialists and the establishment of uniform national standards. (Id.).
Fueling the growth of board-certification programs is the participation of bona fide organizations that carry the necessary capacity, expertise and objectivity. For example, many state courts and bar associations have sponsored programs that have set standards for specialty areas and program operation in their jurisdictions. (Id.).
In 1993 the American Bar Association adopted a set of voluntary standards and offered to accredit private national certification programs which met them. To become accredited, a program must establish reasonable and valid criteria for granting specialist certification and prescribe organizational and procedural features needed for successful program operation. (Id.).
One of the ABA's key objectives is to provide state authorities with a basis for allowing lawyers to ethically publicize their certification without having to set up a separate expensive and time-consuming approval process of their own. (Id.).
In 1999 eleven (11) certification programs have been accredited in the fields of civil, criminal and family law trial advocacy; business and consumer bankruptcy; creditors' rights; legal, medical and accounting professional liability; elder law and estate planning law. (Id.).
Program offerings vary, depending on geographical locale and specialty area. To find a suitable program, lawyers usually contact the ABA committee on specialty certification, which maintains a list of state-sponsored certification plans and private organizations currently administering ABA-accredited certification programs. .
Mandatory Continuing Legal Education
The model Mandatory Continuing Legal Education (MCLE) Program in USA appears to be that of the State Bar of California. (See: http://www.calbar.org/2cer/mclerev.htm.).
The MCLE Rules and Regulations of the State Bar of California were adopted in 1990 and revised in 2000.
Continuing legal education is required of all members of the State Bar of California on active status not specifically exempted from the Rules to assure that, throughout their careers, California attorneys remain current regarding the law, the obligations and standards of the profession, and the management of their practices.
All members of the State Bar of California on active status shall demonstrate their compliance with the continuing legal education requirement at the end of each compliance period and, except as otherwise provided, shall complete at least 25 hours of approved continuing legal education activities every 36 months. Of the 25 hours:
1. At least four shall be in the area of legal ethics ;
2. At least one shall relate to prevention, detection, and treatment of substance abuse and emotional distress, but no more than six shall relate to emotional distress; and
3. At least one shall relate to elimination of bias in the legal profession based on any of, but not limited to the following characteristics: sex, color, race, religion, ancestry, national origin, blindness or other physical disability, age, and sexual orientation.
Instruction in legal ethics, prevention, detection, and treatment of substance abuse and emotional distress, and elimination of bias may be a portion of a substantive law education activity. (Rule 2.1)
Up to but not more than 12.5 hours credit may be claimed for self-study activities during any compliance period (Rule 2.3).
Participatory credit refers to participation in an education activity that can be verified by the education provider and may be claimed for:
1. Attending approved education activities, including lectures, panel discussions, question-and-answer periods, or in-house education;
2. Viewing videotapes or film instruction, listening to audiotapes, or viewing or participating in other audiovisual activities including interactive video instruction and
activities electronically transmitted from another location, such as online education.
The viewing, listening, or participating must be approved, and must be verified by the provider (for purposes of this section, sponsorship requires the approved provider to ensure compliance with sections 7.1 and 7.2);
3. Speaking in approved education activities;
4. Attending a law school class after the member's admission to practice in California, provided the member officially registers for the class and satisfactorily completes the class (by audit or grade), as required by the law school; or
5. Teaching a class at a law school. (Rule 4.1).
Self-study credit refers to self-verified participation in an education activity. Up to but not more than 12.5 hours of self-study credit, or in the case of a proportional requirement, up to but not more than one-half of the required hours, may be claimed per compliance period for:
1. Viewing approved videotapes or videotapes of approved activities or viewing or participating in other approved audiovisual activities, including interactive video instruction and activities electronically transmitted from another location, such as online education;
2. Listening to approved audiotapes or audiotapes of approved activities;
3. Preparing, as an author or co-author, written materials published or accepted for publication, e.g., in the form of an article, chapter, or book, which contribute to the legal education of the author member (which were not prepared in the ordinary course of the member's practice or employment or to accompany speaking in an approved education activity); or
3. Participating in self-assessment testing (open-book tests that are completed by the member, submitted to the provider, graded, and returned to the member with the correct answers and an explanation of why the answer chosen by the provider is the correct answer). (Rule 4.2).
Credit hours are computed based on actual time spent in an activity (actual instruction or speaking time, actual time spent viewing videotapes or listening to audiotapes, actual time spent preparing materials for publication, actual time spent attending a law school class) in hours to the nearest one-quarter hour reported in decimals. Providers are expected to compute credit hours for approved activities based on this formula and to announce the approved number of hours. For self-assessment tests, providers must specify the maximum credit allowable. Credit may be offered only for the time actually spent answering the self-assessment test questions and reviewing the results from the provider. (Rule 5.1).
Credit hours for speaking in an approved education activity are computed by multiplying actual speaking time by four. For repeat presentations, speakers may claim only actual speaking time. Each presentation of a workshop or skills training activity (an education activity that includes the active participation of attendees in the form of interactive exercises, simulations, and demonstrations and therefore must be modified for the attendees at each presentation) will count as a separate education activity. (Rule 5.3.1).
Credit hours for panelists at an approved education activity are computed by multiplying the length of time the panelist is assigned to speak by four. If specific speaking times are not assigned to the panelists, "the length of time the panelist is assigned to speak" means the actual length of the education activity divided by the number of panelists. For the remainder of the panel and for repeat presentations, panelists may claim only actual attendance time. (Rule 5.32.).
Credit hours for teaching a law school class are computed by multiplying the number of credit hours/units granted by the law school by 12. If a portion of a law school class is devoted to a subject set forth in section 2.1, credit hours for teaching that subject are computed by multiplying actual speaking time by one. In no case may the credit hours claimed for teaching a law school class exceed credit hours/units multiplied by 12. Credit hours for a guest lecturer or substitute teacher in a law school class are computed by multiplying actual speaking time by four. For repeat presentations, credit may be claimed only for actual speaking time. (Rule 5.4).
In accordance with California Business and Professions Code section 6070 and California Rule of Court 958, the following are exempt from the continuing legal education requirement:
1. Officers and elected officials of the State of California;
2. Full-time professors at law schools accredited by the State Bar, the ABA, or both;
3. Full-time employees of the State of California acting within the scope of their employment. For purposes of this section, "full-time employees of the State of California acting within the scope of their employment" shall refer to members employed by the State of California as attorneys or Administrative Law Judges on a permanent or probationary basis, regardless of their working hours, who do not practice law in California except as employees of the State of California; and
4. Full-time employees of the United States Government, its departments, agencies, and public corporations, acting within the scope of their employment. For purposes of this subparagraph, "full-time employees of the United States Government, its departments, agencies, and public corporations, acting within the scope of their employment" shall refer to members employed by the United States Government, its departments, agencies, and public corporations, as attorneys or Administrative Law Judges on a permanent or probationary basis, regardless of their working hours, who do not practice law except as employees of the United States Government, its departments, agencies, and public corporations.
5. Effective February 1, 1997, members otherwise exempt from the continuing legal education requirement pursuant to sections 6.1.3 and 6.1.4 may provide pro bono legal services through a qualified legal services project or support center receiving funds pursuant to Business and Professions Code section 6210, et seq., provided that the sponsor of the pro bono project or support center ensures that members volunteering pursuant to this section have received the necessary training or otherwise possess the necessary skills to provide quality service and maintain professional standards. (Rule 6.1).
A member may submit an application setting forth good cause for an exemption from compliance with or modification of any of the requirements, including an extension of time for compliance, in accordance with a procedure established by the State Bar. Should the decision be adverse to the member, the member may appeal such decision to the California State Supreme Court, pursuant to the provisions of California Rule of Court 952(d). (Rule 6.2).
Continuing legal education activities may be granted approval in three ways; 1) the provider of the activity is an approved provider and certifies that the activity meets the criteria of section 7.1.2) the provider of an individual activity receives approval of that activity, or 3) a member receives approval of an activity which is not otherwise approved. (Rule 7).
Under Rule 7.1, all continuing legal education activities must meet the following standards:
1. The activity shall have significant current intellectual or practical content for members;
2. The activity shall be an organized program of learning related to legal subjects and the legal profession , except that education activities relating to the prevention, detection and treatment of substance abuse and emotional distress may address generic issues of substance abuse and emotional distress in society in general and need not focus solely on problems which attorneys encounter in the legal profession. Cross profession activities must be directly relevant to the practice of law ;
3. The activity shall be conducted by an individual or group qualified by practical or academic experience;
4. Where the activity is more than one hour in length, substantive written materials must be distributed to all participants. Such materials must be distributed at or before the time the activity is offered. When a self-study activity is more than one hour in length, the participants must have the use of the substantive written materials while viewing or listening to the videotape or audiotape and reasonable access to the written materials thereafter, but participants are not required to retain a personal copy of the materials; and
5. In addition to the foregoing, in-house education activities must be scheduled at a time and location so as to be free of interruptions from telephone calls and other office matters.
All approved providers and providers of approved continuing legal education activities shall agree to the following:
1. An official record verifying all members' attendance at the activity shall be maintained by the provider for at least four years after the completion date. The provider shall include the member on the official record of attendance only if the member's signature or other verifiable proof of attendance was obtained at the time of attendance at the activity. The official record of attendance shall be provided to the State Bar upon request at no cost to the State Bar. It is not the intent of the State Bar that a provider's failure to comply with this record keeping requirement give rise to a lawsuit by a member against the provider;
2. The official record of attendance shall state the name and bar number of the members, the time, date, location, title, and the amount of California approved education credit offered for the education activity, including a breakdown of credit offered for the mandatory subjects. 3. Providers shall provide a certificate of attendance to all members attending continuing legal education activities sponsored by the provider. The certificate of attendance shall state the time, date, location, title, and the amount of California approved education credit offered for the education activity or activities, including a breakdown of credit offered for the subjects. 4. Providers approved under section 9.0 shall include a statement in any materials promoting their approved provider status or one or more individual activities, certifying that the provider is a State Bar of California approved MCLE provider. If an application for approved provider status pursuant to section 9.0 is pending before the State Bar and the promotional materials refer to California MCLE credit, the statement shall indicate that an application is pending.
5. Providers sponsoring individual activities shall include a statement in any promotional materials for one or more individual activities, certifying that the activity or activities have been approved for MCLE credit by the State Bar of California. If an application for approval of an individual activity pursuant to section 8.0 is pending before the State Bar, and the promotional materials refer to California MCLE credit, the statement shall indicate that an application is pending.
6. Providers shall provide to all participants in an activity being offered for California MCLE credit, in advance of the activity, accurate information as to the amount of approved education credit being offered based on the formulas set forth in section 5.0, including a breakdown of credit offered, if any, for the subjects.
7. Providers shall agree to the monitoring of their compliance at no cost to the State Bar including, but not limited to, allowing in-person observation of all approved continuing legal education activities by members of the State Bar Board of Governors, the Committee on Minimum Continuing Legal Education, or designees of the Committee, and the State Bar staff; and
8. Providers shall make available to each participant a copy of the State Bar approved Education Activity Evaluation Form or other evaluation form, provided that such other form solicits at least the same information solicited in the State Bar approved form. Providers shall maintain the completed Education Activity Evaluation Forms for a period of not less than one year after the activity and shall provide the completed evaluation forms to the State Bar upon request at no cost to the State Bar.
9. Providers shall notify the State Bar in writing of any change in the name, address or telephone number of the provider or of the individual designated by the provider as its contact person.
Education activities approved for certification and/or recertification credit by the California Board of Legal Specialization shall be counted towards the education requirement to the same extent as approved for legal specialization credit so long as the provider agrees to comply with the requirements of section 7.2. (Rule7.3).
A member who participates in an education activity outside of California may count that activity toward his or her compliance with the California education requirements without seeking California approval for the activity, provided that the activity is approved for continuing legal education credit by another state, the District of Columbia, any territory of the United States or any foreign jurisdiction which has MCLE requirements meeting standards adopted by the State Bar. The member may claim credit for the activity to the same extent as in the approving jurisdiction. (Rule 7.4).
Where an education activity is co-sponsored and has not been approved pursuant to section 8.0, the activity may be claimed for credit only if at least one of the sponsors is a State Bar approved provider. Where only one of the co-sponsors is a State Bar approved provider, the State Bar approved provider shall ensure compliance with the requirements. Such co-sponsorship shall not prevent an unapproved provider from applying for individual approval of the activity in accordance with section 8.
Where more than one of the co-sponsors is a State Bar approved provider, the certificate of attendance required by section 7.2.3 and any promotional materials shall state the name of the responsible provider. (Rule 7.5).
Education activities provided by the California District Attorneys Association and the California Public Defenders Association are deemed to be approved education activities. (Rule 8.2).
Each member shall be sent a Compliance Card before the end of the member's compliance period. Each member shall complete the card by attesting under penalty of perjury that the member has complied with the education requirement or is exempt and the nature of the exemption. Such Compliance Cards must be returned to the address listed on the Compliance Card and must be postmarked no later than the day after the end of the member's compliance period. (Rule 11.1).
Members shall maintain sufficient proof of their compliance with the education requirement or their exempt status for at least one year from the date on which the member complies with the MCLE requirement and shall provide such proof of compliance or exempt status to the State Bar as the State Bar may require.
However, members shall not submit certificates of attendance, hours of credit, etc., to the State Bar unless specifically requested to do so. The certificate of attendance that the provider must provide to the member pursuant to section 7.2.3 shall be a sufficient record of attendance at a participatory activity. A member's own record of self-study activities that includes, as appropriate, the title, provider, the amount of credit claimed for the education activity, including a breakdown of credit claimed for the mandatory subjects based on the formulas set forth in section 5.0, and the date on which the member engaged in the activity shall be a sufficient record of compliance for self-study. (Rule 11.2).
Non-compliance shall include any of the following:
1. Failure to complete the education requirement within the compliance period or any granted extension thereof;
2. Failure to provide attestation of compliance (including attestation of exempt status);
3. Failure to provide satisfactory evidence of compliance (including evidence of exempt status) within the prescribed time after a request by the State Bar;
4. Failure to satisfy the education requirement and furnish evidence of such compliance within 60 days after receipt of a Non-Compliance Notice; or
5. Failure to pay all non-compliance fees within the time prescribed after a request by the State Bar. (Rule 12.1).
Members failing to comply will receive a Non-Compliance Notice stating what the member must do to comply and will be given at least 60 days from the date of notification to comply with the requirements. Such notice shall contain the following language near the beginning of the notice: “If you fail to provide adequate proof of compliance with the minimum continuing legal education requirement by (insert date at least 60 days from date notice is sent), you shall be enrolled as an inactive member of the State Bar and will not be permitted to practice law until such time as adequate proof of compliance is received by the State Bar.” (Rule 12.2).
Members given at least 60 days to respond to a Non-Compliance Notice may use this period to attain the adequate number of credit hours for compliance. Credit hours earned during this period may only be counted toward compliance with the prior compliance period's requirement unless hours in excess of the requirement are earned, in which case the excess hours may be counted toward meeting the current compliance period's requirement.
A member who, for whatever reason, is in non-compliance at the end of the compliance period shall pay all non-compliance fees upon request. Failure to pay all non-compliance fees within the prescribed time after a request by the State Bar shall constitute non-compliance with the requirements. (Rule 12.3).
A member failing to comply with the requirements after the 60 day period for compliance has expired shall be enrolled as an inactive member by the Board of Governors or an officer of the State Bar or his or her designee. (Rule 13). The enrollment pursuant to these rules and regulations is administrative in nature and no hearing is required. (Id.). Membership fees shall continue to accrue at the active rate against a member during the period he or she is enrolled as an inactive member pursuant to section 13.1. (Id.).
The involuntary inactive enrollment of a member shall be terminated when the member provides proof of compliance with the minimum continuing legal education requirement (including payment of all non-compliance fees). A member may attain the necessary credit hours to meet the requirement for the period of non-compliance during the period the member is on inactive status. These credit hours may not be counted toward meeting the current compliance period's requirement. Credit hours attained during the period of non-compliance in excess of the number needed to satisfy the prior compliance period's requirement may be counted toward meeting the current compliance period's requirement. (Rule14.1). The termination of enrollment as an inactive member pursuant to these rules and regulations is administrative in nature and no hearing is required. (Rule 14.2).
A member's status relating to the minimum continuing legal education requirement, as it relates to the compliance, non-compliance, or exempt status of the member, is not confidential and shall be disclosed upon request of any interested person. Other information provided to the State Bar or its representatives pursuant to these regulations shall be available for public inspection during business hours, except to the extent that disclosure is prohibited by law. Requests for lists of members shall be subject to the State Bar's Membership Lists Policy. (Rule 15).
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