Lawyer Certification, Specialization and the Standard of Care
The popularity of certification among lawyers specializing in a certain practice area has surged in the last 10 years. A solid base of certified lawyers was established by state-sponsored boards in the late 1970s and 1980s, and in the 1990s and early 2000s, several newly formed private certification organizations have reinforced this growth. For example, the American Board of Certification, sponsored by the American Bankruptcy Institute and the Commercial Law League of America, has enjoyed a steady increase in certified attorneys since its inception in 1992, and now boasts a roster of nearly 1,000 certified attorneys in all 50 states and Puerto Rico.
Due to this heightened visibility, many non-certified lawyers are considering the possibility of becoming certified themselves. Some, however, may be reluctant to take this step due to a perception that certified lawyers are held to a higher standard of care in legal malpractice cases than non-certified lawyers. A review of applicable case law reveals that this is not so.
It is true that the standard of care applied in legal malpractice cases, as traditionally has been the case in medical malpractice cases, is higher for specialists than nonĚ specialists. Such cases are founded on common law principles of negligence, which require a finding that the defendant violated a duty owed to the plaintiff. In legal malpractice cases, this duty will vary depending on defendant attorney's level of experience and skill.
In FDIC v. O'Melveny and Myers,' the Ninth Circuit Court of Appeals found that attorneys generally fulfill their duty to clients by "performing the legal services for which they have been engaged with such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess..." However, if an attorney "specializes within the profession, he must meet the standards of knowledge and skill of such specialists." Other jurisdictions have used a similar standard, finding that an attorney who holds himself out as a specialist in a field is held to the standard of the "reasonably prudent expert attorney in that field.'"
Upon recognizing a difference in treatment of specialists vs. non-specialists in malpractice cases, the question arises: Where is the line? At what point does a general practitioner concentrate so much in a particular area of law that he becomes a specialist? In the courtroom, the answer can be supplied by objective evidence of the defendant's years of experience, education, the number and types of cases accepted and litigated, etc. If the defendant is board certified, that fact likely will be offered as further evidence of a legal specialty. This is simply because the typical qualifications for certification as a legal specialist are the same as those reviewed by courts in establishing whether a malpractice defendant is a specialist.
Generally speaking, to qualify for certification, state and private certifying boards require attorneys to prove they spend at least a minimum percentage of their practice time in their chosen specialty, a minimum number of hours practicing in that specialty, participate in a minimum number of continuing legal education hours, and perform certain tasks common to the specialty a minimum number of times. An applicant for certification in business bankruptcy law by the American Board of Certification, for instance, must show that he or she spends at least 30 percent of his or her practice time and at least 400 hours in the specialty in each of the last three years, has participated in at least 30 business bankruptcy-related adversary proceedings or contested mainly over the prior three years, and has participated in at least 60 hours of continuing legal education in bankruptcy law within the same time period.
These standards for board certification can make a convenient bundle of facts for the plaintiff in a malpractice case. But these requirements in and of themselves do nOl create a specialty, they merely set standards for recognizing one. The ABC, like other certification boards, confers its certification as a recognition of that which the attorney has already achieved-i.e., special competence in his or her field. A certified lawyer is by definition a specialist prior to becoming certified, and will be so held by a court if subject to a malpractice action.
Admittedly, it would be difficult for a certified attorney to deny his or her special skills in the area in which he was certified. But the mere fact of his or her certification is not the issue; it is the standard of competence he or she was required to show in order to become certified in which the court is most interested. Could an attorney credibly deny that he is a specialist when, in fact, he is? Could the fact that he is not certified as a specialist persuade a judge or jury in a malpractice case to apply a lower standard of care, whereas the same lawyer bearing a certification would be subjected to a higher standard? No, it is submitted that this is not the case. A specialist in bankruptcy law or any other practice area will be held to a higher standard of care, whether certified or not.
This author's review of case law in this area revealed scattered cases in which board certification was cited as a factor in determining a specialty in a legal malpractice action, and only one in which certification was actually used to establish a standard of care.' Those legal malpractice cases that mention certification at all are generally similar to medical malpractice cases in that board certification is often discussed, among other points, as a factor in determining whether the defendant physician is a specialist.6 In legal malpractice cases, the mention of board certification in establishing a specialty is still quite rare. This is not to say that certification will not be a factor in future cases. As legal certification becomes more common, it will likely become more prominent in legal malpractice cases - not to determine a standard of care, but as a factor in determining whether a practitioner is a specialist subject to a higher standard of care.
Specialization by lawyers has become the rule rather than the exception because it is demanded by our clients and the courts in which we practice.? And we in the profession are not shy about proclaiming our specialties and expertise. 'We comĚ only refer to ourselves as "experts" or "specialists," whether certil1ed or not. We do this because we know that the benefits of advertising a legal specialty are greater than the risk of being held to a higher standard of care.
There is little doubt that the benefits of board certification outweigh the risk that an attorney's certification may be cited as evidence of a legal specialty in a malpractice case. For instance, certified attorneys may enjoy higher hourly rates of compensation for their services. The 12 factors enumerated by the Fifth Circuit in the Johnson v. Georgia Highway Express Inc.' case, commonly employed by bankruptcy courts nationwide in judging fee applications, place great emphasis on the skill and expertise of the attorney applicant, and certification is an objective indicator of such skill. Soon to come may be new legislation expressly recognizing the value of board certification as a tool in determining the value of a bankruptcy attorney's services.' Prospective clients may be attracted by an attorney's certification, and anecdotal evidence indicates that malpractice insurance companies are beginning to offer discounts on premium rates for certified lawyers. Not to be forgotten is the intangible but undeniable benefit of professional pride enjoyed by certified lawyers who have achieved a skill level worthy of recognition by their peers.
The conclusion to be drawn is that certified attorneys will be held to a higher standard of care for their clients, but not because of their certification. There is no "super-standard" of care for certified specialists. Board certification does not make a specialist, it merely recognizes one. Certification is an acknowledgment of specialization that already exists, and it is that specialization thaI will cause courts to impose a greater duty.