Proposal To Drop Written Exam Draws Ire Of Bar Specialists

Winston-Salem lawyer John Morrow studied long and hard to pass the family law specialization exam. The trouble and expense of taking the test was a small price to pay, he says, to become a board certified specialist.

Now, a State Bar proposal that would do away with the exam has Morrow up in arms. He says the Bar’s proposal would “water down’ the specialization program. Even worse, a plan to replace objective testing with a peer review system for some attorneys would turn the specialization program into ‘a good-old-boys club,’ according to Morrow.

At issue is a State Bar effort to draw more attorneys into the specialization program. Certification has been offered since 1987 but has attracted only 213 lawyers, or about 2 percent of the total bar.

Currently, certification is offered in five areas: bankruptcy, estate planning and probate, real property, family law and criminal law. To gain certification, lawyers must have a substantial involvement in their specialty area, take a set number of CLE hours, undergo peer review and pass a written exam.

The specialization board believes it is that final hoop ‘ the written exam ‘ that is keeping many qualified and experienced attorneys from enlisting in the program. The easiest way to get those attorneys on board: Drop the exam.

‘There are a fair number of experts out there who have not deemed it necessary or convenient to do what’s necessary to prepare for and take the exam,’ said Tom Lunsford, director of specialization for the State Bar. ‘We hope to involve those people. Many people feel they should be certified and the public should know who they are. The fact they might be persuaded to participate would lend validity to the program and make it more accessible to the public.

Alternate Track

Under the board’s proposal, dubbed the “alternate track,’ the examination requirement would be eliminated for attorneys with a certain amount of experience ‘ say, 15 to 20 years of licensure with a substantial concentration in a particular specialty area. Qualified attorneys would instead undergo more comprehensive peer review.

Lunsford said the alternate track plan would be a limited, one-shot deal.

‘It’s imagined that for a period of no more than three years, there would be a window of opportunity for those meeting the experience criteria,’ he said. ‘Those attorneys would be permitted to apply without taking the exam. After the window expired, then we would go back to the system currently in place, where everyone, regardless of their length of licensure, would be required to take an exam.

Letter-Writing Campaign

The Bar’s proposal has raised the ire of some current specialists. They have launched a letter writing campaign to convince the Bar that eliminating the exam is a bad idea.

The specialists were stirred to action by Morrow, who wrote each of them and urged them to sound off on the Bar plan. In an interview last week with Lawyers Weekly, Morrow reiterated his objections to the alternate track proposal.

“The Bar will be lowering the standards if there’s no objective testing,’ he said. ‘I don’t know of any other field where there’s not objective, written testing for specialists,’ he said. ‘Look at doctors ‘ they have three or four written exams to become certified specialists.

Most of the dozen specialists who have written to Bar president John Vernon support Morrow’s position.

Thomas P. Nash IV, a real property specialist from Elizabeth City, expressed surprise and disappointment that the board had adopted an inclusionary policy and asked it to rethink its position.

‘This may sound like ‘sour grapes’ coming from one who has taken the examinations … [but] in my opinion, your policy serves only to dilute the professional standards and entrance requirements previously set, and will ultimately lessen the calibre of attorney you are seeking for specialization.

‘I am confident that the number of attorneys who seek specialization and Board certification will increase without your having to ‘seek out’ qualified individuals,’ Nash added. ‘To dilute your requirements and standards would make a mockery of the Board certified designation.”

Family law specialist John T. Carter Jr. of Jacksonville acknowledged that the exam was an intimidating hurdle.

“I prepared for the test because I did have a fear of not passing, and this certainly would have been embarrassing after having to get recommendations from other lawyers and judges, as well as to my firm, family and friends who knew that I was taking the exam,’ he said.

Carter said the exam serves an important function in the certification process.

‘In the normal practice of law we are always looking up a particular item, but we never have time to sit down and read the entire Chapter 50 as well as the other statutes that apply to family law matters,’ he said. ‘This proved to be a great education for me and something that I anticipate doing on a periodic basis in the future.

‘I am a better family law practitioner having gone through this process,’ he added. ‘I believe that it would be a great disservice to the public as well as to those who have attained specialization credentials to no longer require the written examination as a part of that process.”

Bankruptcy specialist Holmes P. Harden of Raleigh echoed those remarks.

“[T]he study and preparation for taking the test benefit the candidate, no matter how knowledgeable he is,’ he said. ‘The Bar and the public ultimately benefit, as well.”

One specialist in estate planning who asked not to be identified questioned whether peer review would work in his field. He said it would difficult to assess estate planning specialists without an exam.

“In the estate planning areas … attorneys have little interaction with other lawyers, as contrasted with real property and family law, for example,’ he said. ‘A client comes in and presents a fact pattern at which time the attorney develops a plan and presents documents to accomplish the client’s needs. It is extremely rare that another attorney reviews the suggestions or documents. Thus, if the process becomes one of five lawyers saying that they know the other lawyer’s expertise in the estate planning, without any examination, I have significant reservations as to whether the program is worth continuing.”

Several specialists who sent letters to the Bar have questioned whether financial considerations are behind the move to attract more attorneys into the specialization program. The program has been in the red since its inception five years ago. But Lunsford said finances were not an overriding concern.

Aggressive Promotion Urged

Meanwhile, the specialization board is considering several other proposals to promote the program. Among them:

Public awareness of the program would be increased through statewide advertising on television and in newspapers.

Negotiations are underway to obtain a five percent discount for specialists on their malpractice insurance.

The telephone company has been approached and asked to set aside a section in the Yellow Pages for board certified specialists.

“We are going to be much more conscious of marketing,’ Lunsford said. ‘We are doing what we can to make sure there’s financial incentive to participate.”

Morrow and other specialists welcome those promotion efforts. They believe that is the better route to expand attorney involvement in the specialization program.

“If the program is properly publicized, lawyers will be ‘forced’ to join the program to keep up with their competitors,’ he said. ‘The program’s not old enough to say that the low number of lawyers is indicative of where it will be in five more years. Just give it more time. But if it’s watered down, it will not be as good for the public.”