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Sunday, October 09, 2005

Miers and board certification

In a recent comment, reader Lgl asked:

[W]ith all her experience, why isn't [Ms. Miers] board-certified in civil trial law? (for that matter, why isn't Beldar?)

That's a fair question — or actually, two fair questions — and they're questions that merit not just an answer in comments, but a post of their own.


In 1974, Texas was among the first states to adopt and begin the multi-year process of implementing a comprehensive system of "board certification" procedures in a variety of practice specialties. This system is analogous in many respects to the national board certifications available to physicians in various practice areas, and there have been some attempts to set up a similarly national system for lawyers, but no comprehensive national program that includes all of the major practice areas has yet caught on in a big way.

The State Bar of Texas and the Texas Supreme Court were, and remain, very appropriately involved in the Texas program. But the actual certification process is controlled by a distinct body, the Texas Board of Legal Specialization.

As with physicians and their national certification program, lawyers in Texas need not be board certified in order to practice as a general matter, nor in order to undertake any particular types of cases or matters. There are, however, some fairly general ethical provisions that caution lawyers not to undertake matters for which they're unqualified without taking reasonable steps to gain those qualifications. Doctors who are not certified may legally hold themselves out as specialists anyway, at least in most states. But there are very strict ethical regulations in Texas that restrict the ability of lawyers who are not certified to claim or imply that they are specialists; these have the force of law, and violating them can result in sanctions up to and including suspension or loss of license. Indeed, in something noticed by most Texans who are barraged by lawyer advertising, but that is unfortunately probably poorly understood by most consumers, Texas lawyers who aren't board certified — which continues to be the vast numerical majority of the practicing Texas bar — are required to include a disclaimer along the specific lines of "Not Certified by the Texas Board of Legal Specialization" in any advertising they may do, even if that advertising neither claims nor implies any specialized expertise.

I support the TBLS and the specialization program, not (as some lawyers do) out of a desire to avoid  having to make the advertising disclaimers, but because I believe it's an appropriate and useful thing for the profession to do to promote professionalism and excellence within its ranks on a long-term basis. I don't think the program has been entirely successful in its attempts to educate and inform the public or to help them in finding and choosing among lawyers, but neither has it been entirely unsuccessful, either, and supporting the program continues to be an effort worth making for those reasons too.

I don't believe anyone was "grandfathered in" when the system was created. The expectation was that rather than effecting some instant transformation of the profession, it would instead take a matter of decades, not merely years, before the system reached "equilibrium" and become fully established and effective. In the three decades since, the system has made good progress toward that, although less than I'd like to have seen. Evolution of the system has not been perfect, especially as there have been some compromises to reflect some rivalries within the bar. The partially overlapping certifications for "civil trial law" and "personal injury trial law," for example, reflect early and perhaps lingering concerns of plaintiffs' personal injury practitioners that other courtroom lawyers, and in particular those who practice mostly on the defense side in personal injury cases, would somehow dominate to their disadvantage. Nevertheless, while still a work in progress, the Texas board certification program is a useful model that I wish more states would follow.


Speaking for myself: I applied for, took the tests for, and was awarded certifications in both civil trial law and personal injury trial law from the Texas Board of Legal Specialization in 1986 or 1987, as soon as I became eligible based on the then-existing years-in-practice requirements. (I already had the required number of first-chair trials, references and recommendations, continuing legal education hours, and so forth, and I met all the other prerequisites.) I maintained both certifications for several years. But during the late 1990s, at a time when I was in solo practice, I decided for a variety of personal rather than professional reasons not to continue paying the required annual fees, and I allowed both certifications to lapse. That was without question the most short-sighted professional decision I've ever made in my career, and one I've regretted continuously thereafter. After extended polite discussions with the Board, I've now resolved to seek recertification — probably only in civil trial law this time — and although preparation even for recertification is a multi-year process, my expectation is that I will file the application, again undergo the professional vetting, and ultimately re-take the certification test during the 2006 cycle. In the meantime, I do not make reference to my having once been "board certified" in any public list of qualifications and credentials because I believe it would be unethical to do so without simultaneously disclosing (as I have here) that I let the certifications lapse — and that gets me into long (and concededly embarrassing, because of my foolishness) explanations like this one.


According to the TBLS' online database, Ms. Miers isn't currently board certified in any specialty area. I can't speak for Ms. Miers, nor give any definite answer as to why she is not board certified, but I will make these general comments that might or might not explain her situation:

The certification process is (and should be) very arduous. The eligibility requirements, although varying according to specialty, are (and should be) quite stiff. Simply gathering the necessary historical factual data to complete the exhaustive application took me a couple of weeks of full-time effort before I first applied. (I'm reasonably confident, however, that Ms. Miers' experience would meet the eligibility requirements for civil trial law, the specialization that probably most closely corresponds to her practice.) The day-long examination is (and, again, should be) comparably difficult in some rough measure to the bar examination; I spent several more weeks preparing for it (or actually, "them," as there were separate tests for the two certifications I obtained). The continuing legal education requirements, both before applying and after being certified, are higher than the mandatory minimums for other Texas practitioners. And certified practitioners must pay non-trivial initial and continuing annual fees, through which the program is entirely funded.

A few lawyers actually prefer to be known as "generalists"; some offer that up as a reason for not seeking certification, although I personally don't much credit that reasoning. Still, many lawyers who strongly support the concept of board certification and the goals of the TBLS, and who also meet the eligibility requirements, have nevertheless decided, for whatever reasons, not to seek certification. Or perhaps it's more accurate to say they've never made the affirmative decision to seek, and undertaken the rigorous paths to obtain, board certification. For lawyers who do not advertise or plan to advertise — and especially for well-established lawyers who already have all the work that they personally can handle — the personal cost-benefit analysis is quite different than otherwise.

Any knowledgeable Texas practitioner will tell you, however, that there are a great many superb Texas lawyers in each of the fields for which specialization certifications are available who, for these or similar reasons, have never chosen to apply for board certification. I'm confident that Ms. Miers, like most Texas lawyers, would agree that board certification is a fine credential to have. But particularly given her other commitments on behalf of clients, profession, and public, and her age and the level of success of her career by the time the ball toward board certification really got rolling, I personally do not fault her for lacking this particular credential.

Posted by Beldar at 06:59 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Miers and board certification and sent a trackback ping are listed here:


(1) David Walser made the following comment | Oct 9, 2005 7:45:21 PM | Permalink

Allow me to echo Beldar's point: There are often very good reasons why an attorney in Texas chooses not to become (or maintain) board certified. I don't know about Ms. Miers, but I do recall one attorney who dropped his certification upon being promoted to his firm's leadership. Why? He did not want to create the impression that the firm was only a tax firm. It was purely a matter of trying to send the proper message to the firm's clients and to the firm's people. Did Ms. Miers have similar reasons for not seeking (or maintaining) certification? I don't know and I don't care. As Beldar said, many of the best attorneys in Texas are certified. Many are not. In close to 8 years of practicing in the Dallas area, I never found certification to be a good indication of whether one attorney might be better than another. In Beldar's case, for example, I doubt he'll become a much better attorney the day he is recertified than he is right now.

(2) Milhouse made the following comment | Oct 9, 2005 9:02:06 PM | Permalink

In any case, who says she wasn't certified when she was practising? Once she was working full time for the Governor, and then for the President, why would she pay the fees to maintain certification? At her age she may have anticipated never needing the certification again, or felt that if she ever did need it again it would be cheaper to recertify then.

(3) Anita Shingeldecker made the following comment | Oct 9, 2005 10:45:36 PM | Permalink

I was licensed in the middle 1970's and must say that the overall quality of lawyering in Texas has declined since that time.

There was no grandfathering of board certification, but there were very lax standards when the program started. Unfortunately, many of the board certified in civil trial law are more adept at discovery fights than advocacy before the finder of fact.

Board certification is not quality control, and there are many disbarred lawyers who were board certified when they still had their tickets.

In other words, board certification as a civil trial specialist means someone tried a set number of cases and passed a written test. Most lawyers use certification to justify charging higher fees.

(4) Rightwingsparkle made the following comment | Oct 10, 2005 8:05:18 AM | Permalink

Just wanted to leave you a comment. Don't pay attention to the Commissar. He is on his way back to being a Democrat. He is ticked off at all the religious conservatives.

(5) Old Coot made the following comment | Oct 10, 2005 9:50:44 AM | Permalink

Knowing the fee(s) for such certification (initial and annual) would help this layman weigh the facts here. Example: Is the annual renewal fee so onerous that one would choose to lose the certification after investing so much time and effort obtaining same? Sorry, but so far this does not pass the smell test.

(6) Bostonian made the following comment | Oct 10, 2005 11:01:29 AM | Permalink

I stayed away from this brouhaha all weekend, and came back with a very uneasy mind.

John Fund’s WSJ piece has convinced me that Miers is a bad choice.

I’m sure she *is* brilliant, and I have no quarrel with her resume. I *really* like the idea of getting someone on the court with a working lawyer’s background, away from the rarified air of academia and so on.

My quarrel with her is that she sounds like she keeps her own opinions to herself and tries to get along with everyone. These are not personality traits I want to add to the Supreme Court.

(7) The Mommy Blawger made the following comment | Oct 10, 2005 11:29:31 AM | Permalink

I had a professor in law school who was an expert in his field. He actually *wrote* the questions for the Board Certification Exam. However, he himself was not Board Certified in his area of expertise. To me, that was the best argument for not seeking board certification. Being board certified may mean you have acheived a level of competence in that area of law, but *not* being board certified doesn't mean you *aren't* competent.

(8) Mikey made the following comment | Oct 10, 2005 3:21:51 PM | Permalink

One thing that no one ever mentions is the ever elusive "judicial temperment". (I have frequently heard that phrase, but have never seen a definition of it.)

To me judicial termperment refers to a judge deciding cases based on the evidence and the law and not letting personal opinions or biases affect the case. It involves the judge keeping him/herself out of the case and let the parties do their work, only injecting themselves in when necessary.

Based on what you have stated in previous posts (and my memory) I believe that Mr. Bork is brilliant, yet I think he would have been a terrible justice - he does not have a judicial temperment.

I do not know if Ms. Miers has it either, but I think it is a very important consideration that is receiving scant attention, and in my opinion is worth a library of brilliant law review articles.

(9) DWB made the following comment | Oct 10, 2005 3:40:09 PM | Permalink

Miers Shmiers... what we all should be talking about is the 18 inning win for the ages of the Houston Astros yesterday afternoon!!!! What is Harriet M's opinion of that?!?!?!!

(10) Belmondo made the following comment | Oct 10, 2005 10:13:49 PM | Permalink

As a simple conservative foot soldier, I am tired of the conservative "Selbstzerfleischung" created by the elitist, intellectual pundits on both sided of Ms. Miers. They apparently do not care much if the Democrats regain control of the Senate and the House in 2006.
I am taking refuge at "DriftwoodUSA" for a light-hearted distraction. Belmondo

(11) Mikey made the following comment | Oct 11, 2005 6:42:51 AM | Permalink

Anonther point I think that is forgotten in all this debate regarding criteria is that any appointment to the Supreme Court is a political appointment. Any President is going to appoint a person he believes is going to be politically compatible to his beliefs, and is going to be confirmable. No President is going to accept tight restrictions on qualifications to the position, and no President is going to leave it to an outside body to determine what qualifications or criteria a candidate must have before being considered for nomination. And if you think this squabble is nasty, please think what the squabble to put people on the Nomination Qualifications Committee would look like.

The political reality, as I see it, is that no President is going to accept a narrow definition of "qualified" when considering any judicial nominee, he is not going to tie himself down like that. The Senate (and public opinion) is the final check, and no group of "wisemen" or pundits is going to get the final say.

(12) Deborah made the following comment | Oct 11, 2005 11:09:42 AM | Permalink

I trust GWB to nominate someone who shares his beliefs. That's why the Miers nomination is so disappointing - because it's (finally) clear that GWB is compassionate but he's not conservative.

(13) Jim Hu made the following comment | Oct 11, 2005 11:35:20 AM | Permalink

I think Beldar has done a great job on the qualifications questions, and I think the ideological purity questions should be a completely separate issue.

With respect to qualifications, I wrote on my blog:

am I the only one who thinks it's bizarre for Dan Quayle's chief of staff to be criticizing anyone for being less qualified than other candidates?

Caveat. I am not a conservative either...but I don't see how that is relevant to her qualifications.

(14) Dick Halferty made the following comment | Oct 11, 2005 12:30:59 PM | Permalink

"John Fund’s WSJ piece has convinced me that Miers is a bad choice." The NRO bash and the WSJ "bash" convinces me that the elitist pundits have forgotten that they write as a reflection of the masses not to dictate to the masses. Krauthammer, Kristol, Will are out of touch with us the 'unwashed' in middle america. Read the letters to the Editor in the "opinion Journal" to find how us'uns really feel. Particularly good it is the "pro-miers" "anti-miers" post.

(15) Michael B made the following comment | Oct 11, 2005 6:55:26 PM | Permalink

I'm one of the unwashed, am not an elitist, am not an ultra-conservative, am not of the far-right, am not looking for some form of strict constructionist "purity", am not looking to know in advance how a jurist will vote, and yet - mirabile dictu! - do not wish to be told my place or to be given bland and patronizing reassurances by Hewitt, Robertson and Dobson. Of the opinionJournal, Taranto puts it succinctly:

"... it helps explain why those who have labored for decades in the service of restoring constitutional jurisprudence to something resembling the actual Constitution--building both an intellectual foundation and a community of prospective judges who adhere to this approach--are so demoralized and angry at the selection."

Undeniably, Beldar has done a superlative and admirable job addressing several secondary and not at all insubstantial concerns - but not the most central set of concerns. Uppity of me to mention that, being the elite, far-right, ultra-conservative, strict constructionist purist I am, who also wants to know (in advance doncha know) how a jurist will vote.

Sad thing is, that covers but a very small fraction of the simplistic caricatures and strawman deflections used by both hacks and sophisticates. Given the bluster and apathy though it's presumably time to stick a fork in it - so it's good to know we have reassurances, very similar to what we had with Kennedy.

(16) Lemuel H. made the following comment | Oct 11, 2005 9:28:41 PM | Permalink

As a former public member of the Texas Bar Grievance committee, I can attest that while board certification is a worthy goal for lawyers, lack of board certification did not signal mediocrity. I found many excellent attorneys in their chosen specialty were not board certified.
On another subject, it seems illogical that a person can be "elite, far-right, ultra-conservative" and still insist they are a "strict constructionist purist". I don't want to know (in advance doncha know) how a jurist will vote. I simply want them to follow the constitution, not some personal philosophy of the day. That is one of the problems with SCOTUS today that strict constructionists are trying to see remedied. It reminds me of the people who tell me they are for limited government but support the government involvement in every avenue that suits their agenda. As the TV detective said, "Just the facts, Ma'am." or just the constitution, we have a legislative and executive branch to mark the direction we as a country wish to go. That is not the job of the court.

(17) Old Coot made the following comment | Oct 12, 2005 11:00:03 AM | Permalink

The silence is interesting. Repeating, what are the initial and renewal fees for certification?

(18) Beldar made the following comment | Oct 12, 2005 1:31:47 PM | Permalink

Coot, don't read anything into silence. I'm pretty sure the application fee and renewal fee info is on the TBLS website, which I linked in my original post; my recollection is that the annual fees are somewhere between $100-400/year per certification, but that's just a vague recollection. I tend to doubt that Ms. Miers has ever been certified; I expect that she would have had better sense that I did and would have maintained the certification.

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