Professional Specialization, A Primer


What Is Specialization?

Lawyers, like all other professionals, start out as generalists. The oath they take is usually quite general. In California, for example, it is to support the state and US Constitution and "faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability." B&P § 6067, (italics added).Their licenses state they are "proctors in admiralty" along with a list of things most lawyers never do. This is consistent with medicine where all licensed M.D.'s in that state are "Physicians and Surgeons" who may if they choose practice psychiatry or any other medicine. Except for restrictions on patent law, lawyers may, technically, at least, remain "jacks of all trades".

Comment [2] to ABA Rule 1.1 on competence, says it this way: "A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as analysis of precedent, the evaluation of evidence and legal drafting , are required in all legal problems. Perhaps the most fundamental legal skills consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through association of a lawyer of established competence in the field in question.

As a profession grows in stature, the phenomena known as specialization seems to take hold. At its heart, protection of the public and identification of peers and colleagues with the proficiency to serve our patients or client's needs in areas beyond our present reach, is what specialization is all about.

The medical profession, as usual, got there first. Nationally AMA "boards" and "fellows" have enabled physicians to hold themselves out to the public as "specialists". The PDR Medical Dictionary defines specialist as "One who devotes professional attention to a particular specialty or subject area." "Specialization" is defined as "professional attention to a particular specialty or subject area for study, research, and/or treatment." Stedman's Concise Medical Dictionary for the Health Professions agrees verbatim with PDR definitions and adds its definition of "Specialty" as "The particular subject area or branch of medical science to which one devotes professional attention." Mosby Medical Encyclopedia defines "specialist" as "a health care professional who makes a detailed study of one part of the body and the related diseases, or of a particular type of disease. A specialist usually has advanced training." Restatement of the Law Third The American Law Institute Restatement of the Law- The Law Governing Lawyers " is, like all Restatements, a clarification of the U.S. majority view on what the law is. In comment d. to § 52 it says: "A specialty is one so recognized by authorities regulating the bar of the jurisdiction or one generally so recognized by lawyers."

Higher Standards, Referral vs. Do It Yourself?

In any area of professional negligence the universal rule is that there are two different standards of care. The new CACI California Jury Instructions ("plain english rules") says it this way: "A lawyer is negligent if he/she fails to use the skill and care that a reasonably careful lawyer would have used in similar circumstances" (CACI 600) The comment reads that "Lawyers who hold themselves out as specialists must exercise the skill, prudence and diligence exercised by other specialists of ordinary skill and capacity specializing in the same field" Wright v Williams (1975) 47 Cal. App. 3d 802.

"If a reasonably careful attorney in a similar situation would have referred plaintiff to a legal specialist, then defendant was negligent if he/she did not do so. However, if defendant handled the matter with as much skill and care as a reasonable legal specialist would have, then defendant was not negligent." (CACI 604)

CA Rule of Professional Conduct 3-110 which deals with "Failing to Act Competently" states if a lawyer "does not have sufficient learning and skill when the legal service is undertaken, the (lawyer) may nonetheless perform such services competently by associating with, or where appropriate consulting another lawyer reasonably believed to be competent, or by acquiring sufficient learning and skill before performance is required. Under its discussion of standard of care, Restatement, supra, deals with specialization under the area of competency as well. Comment d reads, in part: "A lawyer may disclaim greater than ordinary competence or possession of specialized knowledge or skill. When a matter is of a kind normally undertaken by specialists, a nonspecialist generally must make such a disclaimer to avoid being held to the specialist duty. If a nonspecialist exercising normal competence would not undertake such a representation, a nonspecialist must (except in an emergency) either refer the case to or associate with a specialist or acquire the competence of an ordinary specialist. " ABA Rule 1.1 defines "competent representation" as requiring "the legal knowledge, skill thoroughness and preparation reasonably necessary for the representation". Its comments permit undertaking assignments and subsequently preparing and except emergencies for limited to necessities when association, consultation or referral is impractical.

Restrictions On Pandering And Holding Out Relevant To Specialization?

ABA Rule 7.1 (binding in 45 states but not California, New York, Oregon, et al,) permits lawyers to communicate anything about his or her services which does not contain " a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading." This is quite close to the "Truth In Advertising" laws throughout the country for professionals and non-professionals alike. (See for example, CA B&P § 17500). CA B&P § 6157.1 restricting lawyer advertising is essentially the same.

Rule of Professional Conduct1-400, in CA delegated to its Board of Bar Governors the duty to draft advertising standards which were binding on the state's lawyers. Standard (11) used to prohibit any communication "which states or implies that a (lawyer) is a "certified specialist" unless such communication also states the complete name of the entity which granted the certification as a specialist." It was repealed in mid 1997 and replaced by new Rule of Professional Conduct 1-400 (D) ((6) which prohibits any communication which states that a lawyer "is a 'certified specialist' unless the (lawyer) holds a current certificate as a specialist issued by the Board of Legal Specialization , or any other entity accredited by the State Bar to designate specialist pursuant to standards adopted by the Board of Governors, and states the complete name of the entity which granted the certification."

Board Certification Is A Developing Genre

Only four states prohibit communicating any specialization. Nebraska is one. Eight states permit communication if a disclaimer is attached. Illinois and Massachusetts are in this group. The disclaimer varies from state to state but basically states the state doesn't license or certify lawyers in specialties. Eight states permit only their own internal certification to be communicated. Ohio and Pennsylvania are in this group. Utah permits it only if accredited by a commission which presently does not exist. Eight states have no restrictions or are subject to the truth in advertising standards. D.C., Michigan and Oregon are in this group. The plurality of states either presumptively accept national certification from the American Bar Association or look to the organization certifying specialties for ABA or have both their own certification program and recognition of national ABA programs. California and New Jersey are in this group, some still require disclaimers. New York. Nevada just moved from the "no never" group to ABA recognition.

Legal specialties vary quite a bit from state to state. Texas for example, recognizes Administrative Law, Consumer Commercial Law, Farm & Ranch Law, Health Law, Juvenile Law, Personal Injury Trial law, Oil, Gas & Mineral Rights Law, Residential Real Estate Law and Labor & Employment Law in addition to more traditional specialties. Ohio has Residential Real Property Law and Business, Commercial & Industrial Real Property Law inter alia. North Carolina has Residential Real Property, Commercial Real Property or both Residential & Commercial Real Property inter alia. In Victoria, Canada the designation used is "Specialist Lawyer" or "S.L." and they are not required to list the particular specialty although it is recommended.

We truly never leave the "Medical Model" because that profession was here first and for a long time were just more needed than scriveners.

The American Board of Medical Specialties (ABMS) is an organization of approved medical specialty boards. The mission of ABMS is to maintain and improve the quality of medical care by assisting member boards in their efforts to develop and utilize professional and educational standards for the evaluation and certification of physician specialists. The intent of the certification of physicians is to provide assurance to the public that a physician specialist certified by a Member Board of ABMS has successfully completed an approved educational program and evaluation process which included an examination designed to assess the knowledge, skill and experience required to provide quality patient care in that specialty." Their website welcome indicates that 24 member boards belong to their group and Marquis Who's Who publishes their listings.

ABA recognition is through its Standing Committee on Specialization. Their long range aspirational goals are for consumers to rely on the certification designation to make informed decisions in engaging lawyers, for lawyers to understand and seek certification for their own professional growth and for legal employers to show preferences in hiring for such specialists. The issues seldom vary. An article in Legal Specialization Digest, State Bar of California, Winter 2003 notes that the Board "contracted with the Ardent Group to construct a public relations campaign- - designed to encourage qualified attorneys to become Certified Specialists and to educate consumers of legal services on the value of using Certified Specialists.

The difference between the medical model which has been around a long time and the legal wish list is that there is no present specialty anywhere in "rainmaking" or "being connected" or for that matter "image, personality and all that jazz". On the other hand, physicians still don't have a speciality in "beside manner" .

This related note covers a single case which put a stop to phony certifications and phony boards in medicine. It shows how far that profession has come. Recently we learned of a group called "Certified Senior Advisors" who join many law and lay groups purporting to borrow the concepts. The downside of "do-it-yourselfers" (whether an individual, a group or a state) includes watering down the notion of "specialist" and driving arbitrary boundary wedges in common areas of practice.

The legal model for specialization is still light years behind the medical model but ABA and many states are still trying. In medicine, the cardiologist may diagnose a need for bypass but until the thoracic surgeon does the procedure it may not be clear that a quadruple bypass is mandatory. In law one who files estate tax returns generally lacks the credentials to represent the client in an action against a derelict accountant whose services injured the client.

Both needs of the public and other professional's ability to refer to the right professional at the right time often require a lot more specificity than the speciality alone. In medicine, the notion that all internists are qualified to do all things at all times is not generally accepted. Sub-specialities are well developed. Board certified specialists doing endocrinology, or rheumotology are quite are different from each other and from internists who are cardiologists. In law, ABA declined to permit its certifying organization, the American Board of Professional Liability Attorneys from certifying generally in "Professional Negligence" because sub-specialization is not yet conceptualized in law. Instead, Medicine, Law and Accounting are each separate "specialties".

Medicine has been around long enough for the pendulum to accept the notion that over-specialization can result in poor diagnostics because each speciality uses its own protocols and seldom sees the patient long enough to get an overview. The speciality of "Family Medicine" (a sub-specialty of Internal Medicine) or Internal Medicine without a sub-speciality, both attempt to approximate the long gone, "family doctor". In law the closest match appears to be Legal Malpractice Specialists, since most need to be "generalists" in order to appreciate the underlying cases and underlying transactions which vary from case to case.

Copyright © 2004 Phillip J. Feldman, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Nov 11, 2014.