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A career option pursued by some attorneys that entails the acquisition of detailed knowledge of, and proficiency in, a particular area of law.
As the law in the United States becomes increasingly complex and covers a greater number of subjects, more and more attorneys are narrowing their practice to a limited field or fields. Even small-town general practitioners limit the range of matters they handle to some degree, if only out of practical necessity. Although specialization has become commonplace, the formal recognition and regulation of specialties are still controversial issues in the legal profession.
In the 1950s, the American Bar Association (ABA) considered whether it should identify, recognize, and regulate legal specialists. In 1969, the ABA decided not to promulgate a national plan to regulate legal specialization until some initial specialization plans could be studied at the state level. In 1971, California became the first state to adopt a pilot specialization program. Florida adopted a designation plan in 1976, and Texas adopted a full certification plan in 1980. Several other states followed suit in the 1980s.
In the late 1970s, the ABA adopted several ethical and disciplinary rules in the Moral Code of Professional Responsibility that addressed some of the issues presented by attorney specialization. Disciplinary rule 2-102(5) restricted the headings that attorneys could list themselves under in telephone books or other directories. Disciplinary rule 2-102(6) allowed lawyers to list the areas of law in which they practiced but did not allow them to state that they specialized in those fields. Disciplinary rule 2-105 prohibited lawyers from holding themselves out as specialists in certain areas of law, except for patent and trademark lawyers in states that authorized and approved of those fields of specialization. Ethical consideration 2-14 also suggested that with the exception of admiralty, trademark, and patent lawyers, lawyers should not represent to the public that they are specialists with special training or ability.
Also in the late 1970s, the ABA House of Delegates adopted a resolution that recommended that several elements be included in any state specialization program. The ABA Standing Committee on Specialization began assisting states in defining and identifying specialty fields and in establishing basic regulatory guidelines.
In 1979, the ABA adopted the Model Plan of Specialization, which incorporated the earlier principles and guidelines developed by the Standing Committee on Specialization. The ABA reached a compromise between two popular types of specialization plans that had developed in the states: designation and certification plans. Designation plans established basic requisites for specialist recognition, such as a minimum number of years in practice and a minimum number of Continuing Legal Education classes, but did not review the expertise of the applicants through an examination. Under the designation plans, lawyers had to apply to designate themselves as specialists in a certain field, and that application had to be approved by the state. However, the standards were not very stringent.
In contract, certification plans required a prior review of the applicant's credentials, such as through a written examination, and also required certain minimum standards. Most certifying mechanisms required that applicants be licensed to practice law, be substantially involved in a particular area of law (such as devoting 25 percent of their practice to their specialty), and be involved in continuing Legal Education and peer review.
The growth of state specialization plans was boosted considerably after the U.S. Supreme Court's decision in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), in which the Court held that states cannot prevent lawyers from advertising. Court decisions since Bates have held that states may regulate attorney advertising to protect the public from false, misleading, or deceptive advertising. Many state specialization plans, therefore, were developed to regulate how lawyers portrayed themselves and their practice areas to the public through advertising and other communications.
In 1983, the ABA adopted the Model Rules of Professional Conduct, some of which addressed the issues presented by attorney specialization. Model rule 7.4, for example, provided that a lawyer could not state or imply that he was a specialist in any area, except admiralty, patent, or trademark law, unless he was specially certified or recognized under a formal state specialization plan. By that time attorneys were being certified by several national organizations, such as the National Board of Trial Advocacy (NBTA), which certified trial specialists. Because the states were not overseeing the specialization process, the issue arose as to whether attorneys certified by such organizations could call themselves specialists. The courts addressed this issue by suggesting that states either screen the certifying organizations or require them to issue disclaimers indicating that they were not authorized by the state.In 1993, the ABA adopted a voluntary set of national standards for specialization, and established a process for accrediting private organizations that certify lawyers as specialists. National organizations authorized to certify specialists include the NBTA, the American Board of Certification, and the National Elder Law Foundation.
By the early 2000s, 18 states had formal plans for the recognition and regulation of legal specialties. That number continues to grow, as states adopt designation or certification plans, or some variation of the two. These plans recognize a number of specialty areas, including civil trial practice, criminal trial practice, Family Law, tax law, and real estate law. The ABA has drafted model standards for specialization in several other areas as well; these standards include the administrative procedures necessary to implement the plans.
Certification rules vary from state to state, but each lawyer must fulfill four major requirements to be deemed a certified specialist. He must provide evidence of substantial involvement in the specialty area and references from lawyers and judges. He must have completed 36 credit hours of specialty continuing legal education in the three years preceding the application. He must have been admitted to practice and be a member in good standing in one or more states. And, finally, he must be recertified at least every five years and be subject to revocation of the certification for failure to meet the program's requirements.
Despite the growing trend toward lawyer specialization, there is widespread opposition to formal specialization plans. Many lawyers feel that the state's interest in regulating claims of expertise is not as important as the individual's First Amendment right to advertise. Other lawyers, especially general practitioners, feel that the formal recognition of specialization detracts from the presumption that any lawyer licensed to practice law is competent to handle any legal problem. They also fear that formal specialization programs will lead to a class system, with general practitioners or nonspecialists relegated to a second-class status. Attorneys who practice in rural or isolated areas make the practical objection that due to their locations, they do not have access to enough continuing legal education opportunities to qualify as specialists.
Attorneys who support specialization plans argue that the plans lead to more competent lawyers by requiring specialists to attend many continuing legal education courses and to provide evidence of their expertise before being recognized as specialists. Some also argue that specialization plans lead to improved delivery of legal services to the public by providing more accurate information about lawyers and their specialties.
As lawyers advertise in increasing numbers, they are also finding more formats in which to advertise such as telephone books, radio, television, newspapers, journals, magazines, the Internet, direct mail, and billboards. Although advertising makes it easier for the public to find a lawyer and learn more about that lawyer, it can lead to Misrepresentation or misunderstanding. Thus, in dealing with the issue of legal specialization, the legal profession is striving to reach a compromise between the need to protect the public from false or misleading advertisement and the First Amendment right of lawyers to advertise with minimal state regulation.
American Bar Association. Standing Committee on Specialization. Available online at <www.abanet.org/legalservices/specialization/home.html> (accessed June 30, 2003.)
Denning, Brannon P. 2002. "The Yale Law School Divisional Studies Program, 1954–1964: An Experiment in Legal Education." Journal of Legal Education 52 (September).
Rosen, Nathan Aaron. 1990. Lawyer Specialization: A Comprehensive Annotated Bibliography of Articles, Books, Court Decisions, and Ethics Opinions. Chicago: American Bar Association.