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When you really, really need a knowledgeable, highly experienced lawyer to negotiate a high-tech deal, or are in litigation over a high-tech disaster, how do you find one? The lawyer you used for your divorce may know someone who specializes in handling Web site contracts. Or, the firm that handled your property closing may have a colleague who set up the law firm’s computer system and — well, in the land of the blind, the one-eyed man is king. Of course, that attorney who dealt with your fender-bender could fit the bill; he was smart and good in court; he should be able to defend a cybersquatting case. When in doubt, you could even call the part-time journalist who writes the weekly cyberlaw column in the newspaper, although he may be a better writer than an advocate. There must be a better way. Most clients who do not use a law firm with a high-tech specialist depend on a recommendation from a lawyer. Getting a knowledgeable referral to a real specialist is neither assured nor easy. What might make the most sense would be an Internet-based registry of high-tech lawyers whose education, knowledge, skill, experience and tested competence in the law of the Internet and high-technology issues are certified by a standards-setting entity such as the Florida Bar or the American Bar Association. There has been no push for such certification, even though there are 19 areas of law for which certification is offered. Although subspecialty certification has long been offered for physicians, lawyers have been reluctant to embrace the concept. Out of 70,000 Florida attorneys, less than 6 percent are certified in any area of expertise. Of those, less than 2 percent live in Miami-Dade, Broward and Palm Beach counties. Why so few certified lawyers and no certification for Internet and high-technology law? The answers are complex. First, having taken a licensure examination regardless of whether that may have been 20 years ago, most lawyers just don’t want to take another test, especially in an area of law that is so diverse. Second, some lawyers fear professional stigma or would feel awkward among peers if they could not pass a certification examination, after having sought character references from colleagues and professional acquaintances. Third, others don’t want to run the risk of being held to a higher legal standard for malpractice purposes. Fourth, many lawyers legitimately do not perceive the need to distinguish themselves with another credential that raises the cost of practicing law because of additional fees, heightened continuing legal education requirements, etc. Fifth, and this is a big obstacle for all lawyers, is that the Florida Supreme Court imposes severe restrictions on advertising. That diminishes the perceived value of a more impressive credential that clients may not appreciate, anyway. Sixth, until there is a perceived need for Internet and high-tech certification, and incentives exist that justify the application and testing process, lawyers who have an interest in Internet, computer and high-tech areas will not possess sufficient qualifications. They won’t be able to attain the skill and experience needed for Internet and high-tech certification. This last point is the crux of the matter. Help may be on the way, however. Certification currently is offered in areas called “antitrust and trade regulation law” and in “business litigation.” In January, the Florida Bar’s Intellectual Property Law Committee voted overwhelmingly on proposed standards for subspecialty certification in various areas of law relating to patents, patent litigation, trademarks and copyrights. The process may take a year or two to get approved by the state supreme court. Recently, at the Florida Bar’s fourth annual “Law of the Internet” seminar, a luncheon panel discussed this very point, and a straw poll of the 40-plus attendees showed great support for certification in Internet and high-technology law. So, change may be coming. What can you do now? One approach to locating the right lawyer might be to contact an in-house counsel for a high-technology company such as Intel, Microsoft, Harris Corp., Motorola, etc., and ask which outside counsel it uses for Internet or high technology matters. Or you could search the Internet for news articles about deals and cases to see which lawyers are named. A third approach is to review the Florida Bar’s Web site for a list of recent continuing legal education seminars and then identify the speakers on various topics aligned with your needs. These are all ad hoc approaches, but they are better than just picking from the Yellow Pages. Stephen Nagin is a trial lawyer who chairs the Florida Bar’s Intellectual Property Law Committee and the Antitrust and Trade Regulation Certification Committee. He is a partner at Nagin Gallop & Figueredo in Miami, where he can be reached at [email protected].

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