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Executive Director's View on Specialization

In Defense of Specialization
By L. Thomas Lunsford II

In the words of Gotham City's most fiendish purveyor of posers, "Riddle me this, Boy Wonder:"

What State Bar program

1) involves more volunteers and more volunteer labor than any other,
2) encourages professionalism, particularly competency,
3) is self-sufficient financially,
4) assists the public in selecting legal counsel,
5) provides the only dependably meaningful information in lawyer advertisements,
6) is universally appreciated and supported by those few members of the public who know about it, and
7) is, it would appear, unloved by most lawyers?

If you said, "the bar examination," you were close, but no cigar. The bar examination is not a State Bar program. It is administered by the good folks on the Board of Law Examiners. We washed our hands of it years ago.

The correct answer is "Legal Specialization." The more interesting question is, of course, why? Why, after eleven years, have only 400 lawyers chosen to become certified? Why is the formation of new areas of specialty consistently opposed by correlative sections of the Bar Association? Why has the State Bar Council refused to sanction recently proposed specialties in personal injury law and civil trial advocacy?

The answers to these questions involve the rankest sort of speculation which, happily enough, is a "specialty" of mine. Indeed, in this respect, I am probably certifiable (although I promised myself years ago that I would never sit for another written examination.) That notwithstanding, speculation is, on this subject at least, quite timely and rather appropriate. Elsewhere in this issue of the Journal, there are published for comment proposed standards for a new specialty in workers' compensation law. Those proposed standards, and the more fundamental question of whether there ought to be a specialty in workers' compensation law at all, will be considered by the Council when it next meets in January, 1999. More than this, however, would appear to be at issue. For one thing, the Council's decision is likely to be viewed by many as an expression of its confidence, or lack of confidence, in the judgment of the Board of Legal Specialization. While the Board has proven to be quite resilient over the years, one wonders how much longer it will be willing to persevere in the face of persistent rebuff. Moreover, having disapproved two proposed trial specialties already, a third strike would probably end the inning, at least as far as most civil trial lawyers are concerned. Given that a huge percentage of North Carolina's lawyers "specialize" in some sort of trial practice, another failure to extend the program in this direction may permanently arrest what little momentum it has had; either hastening its demise or consigning it to continuing obscurity.

Should we be concerned? Does the specialization program serve any good purpose? Who cares? Perhaps a look backward is in order.

The specialization program had its genesis in the report of an ad hoc committee of the State Bar in January of 1982. That committee was charged with the responsibility of reviewing various proposals to improve the proficiency of attorneys and the delivery of legal services to the public. In particular, the committee studied mandatory continuing legal education, specialization and advertising. After 18 months of study, the committee concluded that the State Bar's goals could best be attained by adopting a plan for the certification of specialists in various fields of law. Attached to its report was a draft of a Plan of Legal Specialization which, after some modification, was ultimately adopted in the fall of 1982. The purpose of the program, which has never been altered, was stated in the Plan's first section. It reads as follows:

The purpose of this plan of certified legal specialization is to assist in the delivery of legal services to the public by identifying to the public those lawyers who have demonstrated special knowledge, skill, and proficiency in a specific field, allowing the public to more closely match their needs with available services;
and to improve the competency of the bar by establishing an additional incentive for lawyers to participate in continuing legal education and meet the other requirements of specialization.

It is somewhat ironic that, at this moment in the profession's history when the ideal of professionalism has taken on an almost sacred quality, a program established to promote competency enjoys so little support. Regardless of whether satisfaction of the certification criteria ensures or even evidences "special" competence, it seems likely on an intuitive basis that there is real professional value in the striving. By taking extraordinary amounts of continuing legal education, by pursuing a single area of practice to the exclusion of others, by daring to submit to a searching review by one's peers and by preparing for a rigorous examination, a lawyer can scarcely avoid being improved. Indeed, most lawyers who have been through the process, with or without success, claim to have profited greatly from the experience. That being the case, the question arises, how can a program which fosters a more competent bar and, to that extent, a more professional bar, be undeserving of support?

That question ought not be considered entirely apart from a discussion of the program's second purpose: assisting in the delivery of legal services by helping members of the public identify attorneys qualified to serve their needs. The specialization program ostensibly performs this function by generating legal conclusions about competency called "certifications" which when communicated are recognizable as information. Information, when accurate, relevant and understandable, can be very useful to consumers, such as prospective clients. Information which is misleading, irrelevant or incomprehensible can be quite harmful.

Are the certifications produced by the Board of Legal Specialization meaningful? Are consumers really helped? Although there is little authority on the subject, there is good reason to suppose that consumers are helped. After all, most people in North Carolina are still personally unfamiliar with lawyers. Even those who have had some contact with the profession, perhaps in connection with a real property conveyance or traffic ticket, generally have no real understanding of who is qualified to do what. While many people, particularly those in small towns, can still rely upon references and reputation to select a lawyer, a growing number, perhaps a majority of our fellow citizens, haven't a clue. So they turn to advertising, hoping to find some direction. Unfortunately, lawyer advertising is, for the most part, an informational wasteland, an increasingly cacophonous riot of pap, signifying little other than willingness and availability. As was noted above, certification is about the only thing which might be advertised under the present rules which is invested with the credibility of the state. A consumer with a tricky immigration problem can, for instance, identify a lawyer with a demonstrated level of relevant expertise quite readily by referring to a claim of certification in that area of practice in the yellow pages. The lawyer selected on that basis may not be the best lawyer for that client. Indeed, there may be many other practitioners at hand who are just as competent. But, it is undeniable that the consumer has been enabled to make an informed decision, rather than a random selection. While it is certainly possible that the choice may, for any number of reasons, prove to be unfortunate, the consumer's odds of getting an appropriate lawyer have been improved, I would submit, by the specialization program.

But is the Board of Legal Specialization really able to discriminate between those with "special" competence and "ordinary" lawyers? Even if such distinctions can be reliably made with respect to some areas of practice, is there any reason to suppose that a consumer is better off with a certified lawyer? And what about those areas of specialty? They sound like neat little packages, but does anyone really understand what it means to be a specialist in civil trial advocacy?

I am inclined to believe that some lawyers are more capable than others in regard to virtually any area of practice you can name. This is obvious to the members of the State Bar's Grievance Committee, to all of the malpractice carriers in the market and to any lawyer who has ever been called upon to make a referral for a friend. Is it possible to separate the sheep from the goats on the basis of the certification criteria? Well, it is not an exact science, but yes, it is possible. The requirements are demanding. The satisfaction of any one of them is some indication of competency. The satisfaction of more than one is substantial evidence. The satisfaction of them all warrants the legal conclusion that is certification. Adding credibility to the process are the decision makers themselves. Each certification decision is made upon the recommendation of a specialty committee composed of acknowledged experts in the field who are committed to insuring that the credential has meaning and is not demeaned by the certification of unqualified applicants. The integrity of the process can be verified by a casual scan of the roster of certified specialists which includes over 400 of North Carolina's best lawyers.

Of course, every critic of the program knows of at least one specialist who is patently incompetent or unprofessional and should never have been certified. These "mistakes" are regarded as proof of the folly of the entire enterprise. Nothing could be further from the truth. As with any human endeavor, errors and anomalous results are inevitable. The bar admissions process is a good example. Each year the Board of Law Examiners admits several dozen people who are ultimately suspended or disbarred from the practice. For good reason we have never found in this sobering realization any cause to stop licensing lawyers. Quite the contrary, we justifiably celebrate our high standards of character and integrity and regularly invite the public to rely upon them. The fact of the matter is that the overwhelming majority of certified specialists are very well qualified. That a few undeserving persons may have somehow successfully negotiated the requirements for certification is regrettable, but quite beside the point. Every time an ordinary consumer factors certification into his or her choice of a lawyer, the likelihood of making a good decision increases.

It is perfectly legitimate to question whether the creation of a new area of specialty is in the public interest. For instance, if consumers, particularly unsophisticated consumers, are generally able to identify suitable counsel in workers' compensation cases, there may be no need to invest the time, energy and money necessary to expand the program in that area. My guess is, however, that there are a great many victims of industrial accidents who could use a little meaningful information bearing upon the relative merits of those contending for their legal business. That need may not be so great in regard to some of the other areas of specialty which have been or may be proposed. Corporate law is a good example. Although it is relatively easy to define and a lot of attorneys specialize in it, most prospective corporate clients are sophisticated consumers of legal services. They are probably not in need of advice from the State Bar as to the qualifications of corporate lawyers. The same might be said of hospital law or environmental law.

It is also fair to question whether a proposed specialty, as defined, is really meaningful. If an area of practice is so broad that a consumer is likely to have difficulty finding among those certified someone with relevant expertise, then the purpose of certification is defeated. Those who objected to the creation of a specialty in civil trial advocacy had a very valid point in this regard. The variety of civil litigation is so great and the substantive predicate so vast that one may fairly ask whether such a certification of expertise would have had any meaning for most prospective clients. After all, information which is descriptive of everyone identifies no one. Civil trial advocacy was for this reason probably not a very good idea for a specialty. The personal injury law specialty would have made more sense. Workers' compensation law is also a good candidate. Most people who suffer work-related injuries understand that they may have workers' compensation claims. They just don't know who to call for representation.

What about the complaint that specialization is unfair or unwise because a great many competent practitioners in rural areas cannot satisfy the criteria relating to substantial involvement? This criticism seems to have at least two aspects. In the first place, it embodies a fundamental objection to elitism within the profession and, indeed, the culture as a whole. Many lawyers do not like the fact that the State Bar appears to prefer some lawyers to others. They see the game as having been rigged to make it impossible for every competent lawyer to be certified. In their minds, the specialty committees want to certify only those few lawyers who are like themselves, creating in the process an exclusive club for the elite. Personally, I suspect no one of impure motives, but I do think it is true that so long as substantial involvement in the area of specialty is a criterion of certification, it will be necessary to discriminate to some extent against the generalist. The key to developing a credible program which will benefit the public and enjoy the support of the bar is to set a standard for involvement which is reasonable. Throughout the program's existence there has been tension between the specialty committees, which naturally desire the highest of standards, and the Board, which seeks to broaden participation in the program. In most cases, this tension has resulted in negotiation and compromise, frequently along lines suggested by members of the bar in response to published proposals. This process is healthy and ought to be encouraged. Elitism, though toxic, can be a beneficial aspect of the program if managed properly.

It is also argued that certification disadvantages rural lawyers who, though competent to handle cases in specialty areas, lose local business to specialists located in larger cities. To credit this argument you have accept two premises: first, that specialists do in fact siphon off significant legal business and second, that it is more important that local general practitioners be protected economically than it is that consumers receive credible information concerning the qualifications of lawyers.

What about the first premise? Does local legal business flee to specialists in the big cities? Before addressing this difficult question, it is worth noting that there quite a few certified specialists in small-town North Carolina. Although specialists are concentrated in the metropolitan areas, there are certified specialists in Aberdeen, Smithfield, Oxford, Hendersonville, Banner Elk, Windsor, Kenansville and Yadkinville, to mention a few charming but out of the way places. This should not surprise sophisticated observers of the profession. The fact is you can find de facto specialists virtually anywhere these days. And where there is specialization in fact, there can almost certainly be certification. To my knowledge there exist no studies as to how certification has affected the distribution of legal work in North Carolina or elsewhere. Undoubtedly, some cases have been lost locally, but I am unaware of any significant migration or any economic casualties attributable purely to certification. Indeed, given the close-knit character of many small towns and the relative prominence of most small town lawyers, it seems likely that people from out-lying areas might be more inclined to start their search for representation at church, or at work or on Main Street than in the yellow pages. If that is true, the "threat" to small-town lawyers who are by circumstance obliged to be generalists may be non-existent.

But suppose that rural lawyers are being hurt economically by certification. If that could be demonstrated, one might argue that the public interest would be well served by curtailing the specialization program. Most would agree that it is in the public interest that lawyers be amply distributed throughout the state and that any governmental activity which makes it inordinately difficult to make a living as a small town lawyer ought to be suspect. Even so, one wonders about the wisdom of limiting information to accomplish an economic objective. Given the myriad tools available to the government to influence commerce, it is almost unthinkable that the state of North Carolina should turn to censorship to advantage one group of competitors over another, all at the expense of the consumer. In a free market economy, is there ever a virtue in consumer ignorance?

It has also been suggested that support for certification is, in effect, support for lawyer advertising. For those who believe that advertising is unprofessional, there is no sufficient reason for the State Bar to foster a program designed to generate information for publication. For many people, the maintenance of the certification program is proof of our complicity with the advertisers. By certifying lawyers as specialists, we encourage them to advertise.

They are right of course. The specialization program does actively seek the publication of the information it produces. It is probably true as well that some lawyers, having been certified, are more likely to advertise than before. So what? Lawyer advertising is here to stay. Whether we like it or not, it enjoys First Amendment protection and it's not going away. It won't go away because it's effective. Consumers are paying attention and, unfortunately for them and most decent lawyers, they are selecting counsel on the basis of it. This is lamentable because there is very little information in most lawyer advertising upon which a consumer might reliably base his or her choice of counsel. The problem with most lawyer advertising is that it is empty, devoid of significant content. The State Bar's most constructive response to the problem of lawyer advertising during the past twenty years has been the specialization program. Thanks to the unstinting efforts of the Board of Legal Specialization and the various specialty committees, consumers have access to at least one kind of information they can count on. If the State Bar were to get out of the certification business, it wouldn't diminish lawyer advertising, it would just make it worse.

When the State Bar conducted a scientific survey of public opinion concerning lawyer advertising in 1996, hundreds of consumers were asked whether they would find it useful to have lawyers certified by the State if qualified by experience and training. An overwhelming majority, 75%., said they would find such information useful. Nearly 60% percent of those responding said that they would favor "expanding the program to cover additional specialty areas, such as personal injury law." That is not surprising. Every consumer knows he or she is better off with more information rather than less. Lawyers know this too. As a self-regulating profession, our primary obligation is to govern in the public's interest. The specialization program fills the bill admirably in that it facilitates the intelligent selection of counsel and it encourages competence. It is deserving of your support.

L. Thomas Lunsford II is the executive director of the North Carolina State Bar.