Listed below is what I, Matthew A. Linde, will be speaking about. The more I get involved in this research, the more obvious it becomes in my opinion that the peer review component of the Florida Bar's board certification program is seriously flawed and based on many concepts other than the science of human behavior.
Section §1.01 of the ABA Standards for Specialty Certification Programs for Lawyers “establishes standards by which the American Bar Association will accredit specialty certification programs for lawyers in particular fields of law.” Section 4.06(B) of the ABA Standards for Specialty Certification Programs for Lawyers lists the following requirement for programs applying to the ABA:
(B) Peer Review -- A minimum of five references, a majority of which are from attorneys or judges who are knowledgeable regarding the practice area and are familiar with the competence of the lawyer, and none of which are from persons related to or engaged in legal practice with the lawyer.
(1) Type of References -- The certification requirements shall allow lawyers seeking certification to list persons to whom reference forms could be sent, but shall also provide that the Applicant organization send out all reference forms. In addition, the organization may seek and consider reference forms from persons of the organization's own choosing.
(2) Content of Reference Forms -- The reference forms shall inquire into the respondent's areas of practice, the respondent's familiarity with both the specialty area and with the lawyer seeking certification, and the length of time that the respondent has been practicing law and has known the applicant. The form shall inquire about the qualifications of the lawyer seeking certification in various aspects of the practice and, as appropriate, the lawyer's dealings with judges and opposing counsel.
The history of lawyer specialization in the United States has been reasonably well documented. 1 Several states directly certify licensed attorneys in various specialties.2 While peer review is present in each of the state programs, there is significant variation in what the peer review component is supposed to accomplish within the certification plan. 3
Recently, Zisser v. The Florida Bar 630 F.3d 1336, (11th Cir. 2011) and Petersen v. The Florida Bar, 720 F.Supp.2d 1351 (M.D. Fla. 2010) has been portrayed as a positive development. 4 However, there is much less discussion about whether the various peer review procedures implement good policy. Do a search on Westlaw or Lexis under “legal specialization” and “peer review.” What is interesting about the search results is the fact that there are no results from any state other than Florida.5
Could the amount of litigation in Florida be related to how Florida processes the peer review data? For example, California specifically requires that the committee chair “designate one member of the Commission to investigate significant negative responses to assure that they are related to proficiency and not to personality conflicts or other factors irrelevant to proficiency.” Florida has gone the opposite direction and requires peer review for professionalism, ethics and reputation for professionalism.6 Arizona requires than any negative information in peer review must be corroborated or substantiated or it will not be used.7 Florida has no such requirement.
The presentation critically examines the beliefs that form the foundation of Section 4.06(B) of the ABA Standards for Specialty Certification Programs and compares the state programs. What is supposed to be accomplished by peer review? Are the various state procedures accomplishing the goal? Are some states more effective than other states because of how the peer review data is processed? If a state administrator is seeking to improve the peer review program, what is the best model to follow?
1See generally: Specialist Certification for Lawyers: What is going on? 51 U. Miami L. Rev. 273 (1997); Specialty Certification as an Incentive for Increased Professionalism: Lessons from Other Disciplines and Countries, 54 S.C. L. Rev. 987 (2003); History of Attorney Specialization in Indiana, 40 Val. U.L. Rev. 451 (2006).
2A list of the states is available at: http://www.americanbar.org/groups/professional_responsibility/committees_commissions/specialization/resources/resources_for_lawyers/sources_of_certification.html
3Compare §9.0 of the Rules Governing the State Bar of California Program for Certifying Legal Specialists with §2.08 of the Florida Standing Policies of the Board of Legal Specialization and Education.
4See U.S. 11th Circuit upholds constitutionality of certification peer review, The Florida Bar News March 1, 2011; available at http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/cb53c80c8fabd49d85256b5900678f6c/dd393ccbb0f8b74d8525783e004a4419!OpenDocument&Highlight=0,zisser*
5See Zisser v. Florida Bar, 630 F.3d 1336 (11th Cir. 2011); Petersen v. Fla. Bar, 720 F. Supp. 2d 1351, (M.D. Fla. 2010); John Doe v. the Florida Bar, Case No. SC10-1328, (Fla. 2010); Jane Doe v. The Florida Bar, Case No. SC08-904, (Fla. 2008); Fla. Bar. V. Coleman, 936 So.2d 566, (Fla. 2006); The Florida Bar Re: Raymond A. Haas, Case No. SC00-1382, (Fla. March 19, 2001); Fla. Bar. V. Ash, 701 So.2d 552, (Fla. 1997).
6 See Fla. Bar. Reg.§ 6.3-5(c)(5).
7 See Section VI, I, 4. of Rules and Regulations of the Arizona Board of Legal Specialization.