Certification Masks Competency, Could be Guise for Higher Fees

Not all lawyers are created equal was the warning 20 years ago of then-Chief Justice Warren Burger.

With the number of lawyers multiplying in the last two decades, and the expanding scope and complexity of legal problems, the disparity among practitioners in the profession is more apparent. But certification of lawyers is not the answer to close this gap.

Certification is a far-reaching proposition with too many unanswered questions: Who will certify what specialty? Who will formulate the criteria?  Who will pay for this additional level of bureaucracy? If the task is privatized, the decision to limit it to a single accrediting agency runs the risk of creating a powerful monopoly or elitist group.

Yet, if a plethora of unregulated certifying agencies springs up, the entire notion of certification is diluted, with attorneys being pressured to join multiple agencies. A lack of uniform certification procedures would materialize from specialty to specialty and state to state.

The prospect also arises of spurious paper-mill organizations certifying almost everyone. This result will only serve to confuse, if not deceive, the consumer, not to mention the threat of undermining the very concept of certification and any potential advantage it carries.

But too often certification means nothing more than the lawyer meeting a particular organization’s criteria and paying a hefty fee to join, certainly a financial incentive for the organization to accept that attorney into its ranks regardless of competency.

Going beyond mere logistics, one must examine the very purpose or need for such a process. Certification does not make a lawyer better or eliminate incompetent ones or unethical activities.

 There is no proof the public is better served by certified lawyers.

At worst, certification is merely an internal organizational system. At best, it acknowledges a lawyer’s experience and familiarity with an area of law, but it does not guarantee that practitioner will provide the most competent or expert representation.

Furthermore, under minimum practice requirements, young lawyers may not be eligible for certification even if they possess a high level of competency in a particular field.

Certification presumably is intended to attract more clients, and, by adding value to the certified lawyer, the process appears to be justification for higher fees.

Furthermore, given the increasingly complex structure of law itself, many nebulous, overlapping or entirely new issues could arise blurring the delineation of specialties and leaving consumers even more baffled in trying to find a competent legal representative for a particular problem.

In general, it does not behoove a lawyer to handle a case in a field in which he is not familiar-results will be disappointing, reputations will be harmed and professional malpractice possibilities will be enhanced.

Rather, lawyers already are regularly referring certain cases to a “specialist,” be they “certified” or not.  The reward of mutual representation and its accompanying referral fees function as a filter to get cases to the most qualified practitioners with the most beneficial outcome for the client.

If one of the goals is to educate the public, then the next logical step is to allow attorneys to advertise that specialty, a practice which is very limited under Illinois disciplinary rules and in the wake of Peel v. Attorney Registration and Disciplinary Commission, 496 U.S.91 (1990).

Even if the limitations were lifted, then how much more would the average consumer know about an attorney if he were accredited by one agency versus another? Who would help the consumer make that qualitative decision?

It is apparent, then, to talk of certification is really to talk of specialization. Legal specialization, though, is not a function of the uniqueness of the legal principles in the area of law being practiced.

Rather, it is determined by the time and effort needed to master those principles.

Therefore, the more reasoned approach is to require continuing legal education.  Such programs can fulfill a wide range of professional responsibilities: duties to the public, the courts, the profession, the administration of justice, the lawmaking process and to law reform.

In the mid-1940s, as attorneys in the armed services returned to their law practices after World War II, the American Bar Association and the American Law Institute developed a voluntary national program of continuing legal education.  These institutes consisted of lectures, panel discussions and simulations conducted on various topics by practicing lawyers and judges.

In 1975, Minnesota became the first state to make legal education a prerequisite to bar re-licensing. The Minnesota Supreme Court approved a program requiring all state-licensed attorneys and judges to complete 45 hours of post-graduate legal education every three years.

Approximately 27 other states followed suit, generally requiring 10 to 15 hours of accredited continuing legal education each year or face revocation of one’s license.  About a dozen other states, including Illinois , are considering similar proposals in a range of forms and forums. It is not hard to imagine educational programs on a particular subject of law distributed through a cable television station for a wider geographic audience, thereby making them more economically feasible.

If the ultimate goal is to raise the standards of the bar while protecting the public, mandatory continuing legal education is the most assured way to do so. At the very least, such professional self-renewal provides the experience to broaden one’s knowledge, to sharpen one’s skill of intellectual inquiry and to provide an opportunity to interact with other lawyers on this level. These benefits certainly outweigh the costs.

If the profession must ensure competency in the delivery of legal services, high-quality post-admission legal education makes sense. It is anomalous to imagine a child entering formal education at 5 years old, continuing to 25 years old through professional school and never re-entering a formal education program for the remainder of his or her life. Yet, testing an attorney’s competency and ability to reason persists only at the onset of one’s career despite the increasingly difficult and technical nature of legal theory in every area of law.

The traditional yardstick for measuring competency embraces multifaceted qualities such as knowledge, skill, practice management, awareness of client needs coupled with a self-awareness of the lawyer’s limitations in meeting those needs, capability, preparation and follow-through. Generally, the end result is to improve the state of the public’s health, education and welfare.

The only way to achieve this higher degree of professionalism is hard work. Continuing one’s legal education is a step in that direction.  Certification should never be a mask for competency.

As James Russell Lowell, 19^th century poet, political essayist and diplomat once said, “It was in making education not only common to all, but in some sense compulsory on all, that the destiny of the free republics of America was practically settled.”

More than a hundred years later those words still ring true.  May the profession find such truths ring even louder a hundred years hence.