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.

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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.

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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.

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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.