PLEASE NOTE: Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Trustees of the materials published.
Rules of the State Bar, Title 3, Division 2, Chapter 2, Legal Specialization and Title 3, Division 5, Chapter 4, Legal Specialization Certification Entities
The rules for State Bar programs have been undergoing revision since 2005. As a result, they are now organized into a single structure called the Rules of the State Bar that follows shared basic principles and uses clear and simple language. The Rules governing the State Bar’s Program for Certifying Legal Specialists are among the last to be revised. The California Board of Legal Specialization has reviewed and provided input on these proposed revisions. On July 18, 2013, the Member Oversight Committee authorized a forty-five day period of public comment on these proposed revisions.
The principal proposed changes and their benefits are discussed below.
The proposed changes intend to improve the logical flow of the legal specialization rules. The current rules can be complicated. For example, applications for certification are first discussed in the current rule 3.0 before the discussion of eligibility to apply for certification. The proposed organization places related topics in an order that is easier to follow, grouping topics under two headings. The first heading addresses governing boards and commissions.
The second heading addresses certified specialists, providing a prefatory summary and then proceeding in loosely chronological order as to how an applicant would apply and be evaluated.
Duplication between the legal specialization rules and other State Bar rules has been eliminated in areas relating to responsibilities of educational providers, resolution of conflicts of interests, and appeals to the State Bar court.
California Board of Legal Specialization
The proposed rules reduce the size of the California Board of Legal Specialization (CBLS) to a total of 15 members: 12 attorney members, up to two of whom need not be certified legal specialists, and three public members (the total number of public members does not change). Membership would no longer include the chairs of each of the advisory commissions to the CBLS. Members of the CBLS and the Commissions would serve four-year terms instead of three-year terms, with the option to request an extension of one year or more to serve as an officer.
The current CBLS is composed of twenty-six members: 1) nine attorney members and three public members, all of whom serve three-years terms; 2) eleven chairs of advisory commissions to the CBLS who serve one-year terms; and 3) three non-voting past chairs, who serve one-year terms.
The proposed changes remove the advisory commission chairs from board membership. Having advisory commission chairs as voting members can result in conflicts of interest and their one-year terms requires constant training as the time between the beginning and end of their terms is fairly short. It takes several meetings to get up to speed with the issues before the Board and just about the time someone becomes knowledgeable, his or her term ends. It also ensures that as the program grows, the advisers with one-year terms will not outnumber at-large members. This change also frees advisory commission chairs to focus on the work of the advisory commissions, which require many hours of volunteer service.
Additional efforts will be exerted to ensure that the needed communication between the CBLS and the commissions continues at a high level. At a minimum, there will most likely be scheduled an annual meeting of the CBLS and commission chairs to discuss ongoing activities and matters of mutual interest.
The proposed longer terms ensure a continuity of knowledge in special skill areas, such as the development and grading of examinations, and conform to the policies used for appointments to the Committee of Bar Examiners.
The possibility of appointing to the CBLS up to two attorneys who are not certified legal specialists provides the opportunity for participation by individuals with special relevant skills, such as law professors, or those who practices in an area of law that may be a potential area of certification.
Advisory Commissions to the CBLS
Under the proposed rules, advisory commissions will still consist of up to eight attorneys plus one public member, but one of the attorney members can now be a non-specialist in order to allow academic advisers or other non-specialists the opportunity to provide valuable expertise, if needed.
The two principal changes in the proposed educational rules involve conforming the reporting cycle to the MCLE rules and encouraging mentorship of new certified specialists.
First, completion of legal specialist continuing education needed for certification or recertification would be reported when a member reports his/her compliance with general MCLE, rather than with the recertification application filed every five years. This creates a single reporting cycle for all required education as a convenience to certified specialists and would be much easier to manage and monitor. The overall level of specialist education required will not change.
Second, a certified specialist would be able to obtain MCLE and legal specialist education credit towards recertification through the mentoring of an applicant or prospective applicant for certification. The possibility of providing more mentoring opportunities for applicants by those considered experts in specialization areas was recently discussed and supported by the Board of Trustees. Interaction of this kind would also provide the opportunity for encouraging those who are recently admitted to the State Bar to become interested in applying for legal specialization certification in the future. MCLE and legal specialist educational credit for teaching or providing guidance to those just entering the practice of law also benefits the mentor, as it is often through mentoring that one enhances his or her own knowledge of a particular subject.
Fees and Deadlines
Current rule 20.0, Specialization fees, has eight subparts that use more than 500 words to describe a range of fees. In contrast, proposed rule 3.112 directs applicants and entities to the Schedule of Charges and Deadlines. This ensures that fees and deadlines can be found in a single location. There are no changes requested to the fees currently charged; therefore, public comment is not requested regarding the fees that will be transferred to the Schedule of Charges and Deadlines.
The timing of the examinations is removed from the rules to be set as a matter of administrative policy. The proposed rules also eliminate the Requirement of a Committee of Reappraisers in favor of more updated methods of grading that still allow for appropriate review. Finally, candidates who do not pass the examination will no longer be able to review their answers, in order to increase examination security, and permit the re-use of examination questions as may be appropriate.
Current rule 9.1 requires an applicant to submit the names of three attorneys or judges as references, and each of these references is asked “to submit the names of two additional references familiar with the applicant’s proficiency.” In addition, “[t]he Commission may seek additional references from other persons familiar with the tasks described in the individual standards.” Proposed rule 3.118 retains the three reference requirement, “unless the relevant standards require more,” and does not require the mandatory collection of secondary references, which can often be too distant to provide relevant facts for evaluation.
Although current rule 9.1 provides that “The references shall not include any attorney who is associated with the applicant, including clients, relatives, current partners, associates, employers or employees of the applicant,” the proposed rule removes this restriction so that those who are most familiar with an attorney’s work may provide comment. Relatively new attorneys or attorneys in transactional practices would thus not be precluded from naming the persons who might be best qualified to speak to the applicant’s qualifications. If such a relationship exists, the reference form can require that it be acknowledged so that the commission can consider it accordingly.
In addition, current rule 9.4 sets forth a process for a commission member’s investigation of a negative reference. The proposed rules detail no such process because such an investigation is an operational matter outside the scope of the rules.
Waiver and modification
As does current rule 12.7, proposed 3.119 exempts certified specialists from the annual fee and from recertification requirements during a period of judicial service. The current rule also allows the board to “toll a specialist’s certification for a period of up to three years when the specialist is unable to practice law for compelling medical or other reasons.” Proposed 3.119 allows the board to address exceptions flexibly by waiving or modifying a certification requirement in the rare instance when this is appropriate.
Commission action on application
The proposed rule on commission action on an application, 3.120, establishes a timeframe for timely notice of status to an applicant.
If two references are negative or the commission has a serious concern about proficiency, current 9.4 requires the commission chair to appoint a commission member to investigate. The proposed rules provide for no such investigation, since checking references and obtaining further information are routine staff work.
Board action on application
Like current provision 11.1.2, proposed 3.122, Board action on application, allows the option of a meeting with an applicant if there are concerns about the application. Like the proposed rule on commission processing of an application, the proposed rule on board action adds timeframes for action and notice. If the board grants certification, it notifies the applicant that certification begins on a specified date for a five-year period. There is no standard certification period in current 11.2, Duration of Certification. Adding a standard term offers specialists the benefit of being able to plan recertification compliance.
Detailed current provisions for recertification essentially recapitulate, in about 900 words, the initial requirements for certification. Proposed 3.124(A), Recertification, simply states “To be recertified, a certified specialist must comply with the requirements of these rules and any relevant standards and pay an annual fee.” To the extent that recertification requirements differ from initial requirements, the differences are to be stated in the standards. This approach provides a standard core of requirements for each specialty and reduces the size of the rule by over 80 percent.
Suspension or revocation
In contrast to current 14.0, Suspension and revocation of certification, proposed rule 3.125 distinguishes the grounds for suspension, which is temporary, and revocation, which is final. In either case, the revised rule requires that the board notify a certified specialist of its intent to suspend or revoke certification and afford the specialist an opportunity to respond. If the specialist fails to respond to the notice on time, suspension or revocation is final. If the specialist does respond on time but the board decides to do anything other than to continue certification without conditions, the board must notify the specialist of the reasons for its decision. Although such a statement of reasons is not required by current 14.0, it has been provided in practice.
The current rules provide a detailed description of the nature and structure of an appeal in the State Bar Court. Proposed 3.126, Appeal of certification denial, suspension, or revocation, eliminates this procedural detail and simply says that “An applicant denied certification by the board or a certified specialist whose certification is suspended or revoked by the board may file a petition for hearing on the denial in the State Bar Court in accordance with the rules of the court . . . .” Replacing program-specific procedures with standard ones that achieve the same end reduces the original by about 90 percent.
Current provision 15.10 states that “An applicant and the Board may request review by the California Supreme Court of any State Bar action pursuant to rule 9.13(d) of the California Rules of Court only after final action by the State Bar Court.” Although the option of Supreme Court review may be available, the proposed rule does not cite it because State Bar rules do not include “Rules of the Supreme Court of California or California Rules of Court that apply to the State Bar, its members, services, or programs” and because, as a matter of policy, the objective of the State Bar is to resolve disputes regarding its programs and services whenever possible, rather than to flag the extraordinary possibility of Supreme Court review.
Providers of Legal Certification Programs
As noted above, Rule of Court 9.35(b) provides that “The State Bar must establish and administer a program for certifying legal specialists and may establish a program for certifying entities that certify legal specialists under rules adopted by the Board of Governors of the State Bar.” The State Bar has currently authorized the following entities to certify specialists in certain areas, and these entities pay a fee to the program in order to cover the cost of the oversight of the partnership: the American Board of Professional Liability Attorneys; the National Association of Counsel for Children; the National Board of Legal Specialty Certification; the American Board of Certification; and the National Elder Law Foundation. Current rules governing certification by such entities are in Title 3, Division 5, Providers of Programs and Services.
'Approved' replaces 'accredited'
The current Rules Governing Accreditation of Specialty Certification Programs for Attorneys use “accredit” and “accreditation” in connection with board approval. These words are commonly used in educational contexts. A form of “accredit” is used in State Bar Rules only in the Title 4 rules on accredited and unaccredited law schools overseen by the Committee of Bar Examiners. The proposed rules replace “accredited” with “approved,” reserving forms of “accredit” for the rules applicable to law schools. In any event, “approval” seems to more accurately characterize the process of officially recognizing non-bar programs.
The proposed rules reduce the current twenty-one rules to six by 1) focusing the proposed rules on obtaining and maintaining board approval for a certification program; and 2) applying, with some flexibility, the same standards for any certification, whether by the board or board approved entity. Proposed 3.903, Requirements of approved programs, is the keystone in this structure. It mandates that an approved program “have requirements that are clear, not arbitrary, consistently applied, and comparable to those required for board certification.” In short, the same broad criteria govern any certification, whether administered by the CBLS or another entity.
Use of forms and Schedule of Charges and Deadlines
Like other revised rules, the revised rules applicable to board-approved entities reference forms rather than incorporate form instructions in the rules. Because of this, the proposed application rule, 3.902, is about one-third the length of current application rule. A form for renewal of approval produces a similar result. Similarly, use of the Schedule of Charges and Deadlines in proposed 3.901, Fees, eliminates operational detail—and verbiage.
The proposed rules sharpen and streamline definitions. Current rule 2.0 defines many specific terms, but the proposed rules delete these definitions because the terms are either clear in context or defined elsewhere.
Review and approval of applications for State Bar approval
The current rules mandate a complex and inflexible process for review and approval of applications. Initially 9.0 requires that applications be reviewed by an ad hoc “evaluation subcommittee,” the chair of which is appointed by the Board of Trustees committee charged with oversight of the legal specialization program. The subcommittee’s possible courses of action are laid out in current 10.0. Ultimately, its recommendation regarding the application goes to the California Board of Legal Specialization (11.0). The board is to approve the subcommittee’s recommendation “absent an abuse of discretion.” Things do not end here. The board’s recommendation next goes to the committee of the Board of Trustees with oversight responsibility or to the committee’s designee (12.0). Things do end here, if the application is approved. If the application is denied, the applicant can request review by the Board of Trustees or its designee.
Instead, proposed 3.900 states that the California Board of Legal Specialization may recommend that the Board of Trustees approve entities to certify legal specialists, and proposed 3.903(B) states that the Board of Trustees “has sole discretion to determine whether an applicant for approval or an approved entity has certification requirements that are clear, not arbitrary, consistently applied, and comparable to those required for board certification.”
ANY KNOWN FISCAL/PERSONNEL IMPACT:
Attachment A: Title 3, Division 2, Chapter 2
Attachment B: Title 3, Division 5. Chapter 4
Board Operations Committee
Sept. 5, 2013
DIRECT COMMENTS TO:
180 Howard St. 6th Floor
San Francisco, CA 94105
FAX: (415) 538-2180