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Last summer, employment lawyers Karen and Bill Amlong were teaching a weeklong, Florida Bar-sponsored employment law seminar at Stetson University when they received notification from the Bar that they had been denied board certification in labor and employment law. The Amlongs were furious and, as a sign of protest, dropped out of the seminar on the final day. “We were good enough to volunteer a week of our time to teach a seminar for the Florida Bar but not good enough to get certification,” fumes Karen Amlong, of Amlong & Amlong in Fort Lauderdale. “It was outrageous.” The Amlongs weren’t the only prominent plaintiffs’ lawyers denied certification, a form of peer recognition that attracts clients and enables lawyers to charge higher fees. Kent Spriggs, a Tallahassee employment plaintiffs’ lawyer who is considered a national pioneer in the field, also was turned down. Spriggs, the former mayor of Tallahassee, has practiced in the field for 35 years and wrote a popular textbook on the subject. He is appealing the decision. The Amlongs, whom many consider two of Florida’s leading plaintiff attorneys in employment discrimination litigation, hired a lawyer and were able to get the decision of the Bar’s labor and employment law certification committee reversed March 1. But controversy is boiling over how the Bar is handling its newest specialty certification. Some plaintiffs’ lawyers charge that the approval process has been rigged in favor of defense lawyers. Employment law has turned into one of the most active and hotly contested fields of litigation. In the past year, plaintiffs’ lawyers have complained that defense lawyers have tried to scare them off from filing job discrimination suits by asking judges for fines and sanctions against them. For their part, defense attorneys say the plaintiff bar is bringing too many bogus suits. Citing the growing risk of sanctions in South Florida, particularly in federal court, some prominent plaintiffs’ lawyers have left the field. “The whole [certification] system is fraught with problems,” says Neil Chonin, a Coral Gables, Fla., employment lawyer who represented the Amlongs but who applied for and received certification himself. “People are getting blackballed, and they have no way of finding out why.” But Richard McCrea Jr., chair of the Bar’s labor and employment certification committee and a defense lawyer at Zinober & McCrea in Tampa, strongly denies that his panel is biased against plaintiffs’ lawyers. “The committee has been unfairly under attack,” he says. “This is paranoia from people who are denied. The process is not perfect; we’re still learning but it’s exhaustively thorough.” SOUGHT-AFTER CERTIFICATION Last year, the Bar began offering a board certification in labor and employment law, its 19th specialty certification. The decision grew out of a recognition that employment law had become one of the fastest-growing areas of civil law practice and that a growing number of lawyers not experienced in this area, particularly personal injury attorneys, were dabbling in it. Employment lawsuits for racial and age discrimination, sexual harassment, retaliation for whistleblowing, and other employee complaints are the most common type of action filed in the federal district courts these days. They represent nearly half of all civil appeals at the 11th U.S. Circuit Court of Appeals. Labor law, centering on collective bargaining and workers’ compensation issues, is a smaller practice area. “There’s been such an enormous increase in the number of lawyers who practice in the area of employment law but not full time, and the consumer has no way of distinguishing between those who do this full time and those who dabble in it,” McCrea says. “This was a way for the Bar to objectively credential people who do this full time.” The Florida Supreme Court approved the new certification in March 2000, making Florida the third state, after Texas and South Carolina, to recognize the specialty. Herman Russomano, then the Bar president, appointed the members of the committee. The committee currently is made up of two plaintiffs’ lawyers, six defense lawyers and one lawyer who does both plaintiff and defense work. The Texas Bar, however, makes sure its labor and employment certification committee is exactly half plaintiffs’ lawyers and half defense lawyers, says Gary McNeil, executive director of the Texas Board of Legal Specialties. To receive certification, applicants must take an oath that they devote more than 50 percent of their practice to employment or labor law and have taken continuing legal education courses in the subject. In addition, they must pass a demanding test and provide favorable references from five lawyers and one judge or mediator. The committee conducts an investigation, even contacting opposing lawyers in cases handled by the applicant and checking for sanctions and Bar disciplinary charges and actions. During the first two years, those who had practiced in the area for more than 20 years were exempted from the test but still required to go through the other parts of the process. Applications for the new certification poured in: In the first two months, the committee received 166 applications. In its first year, more attorneys were certified in labor and employment law than in any other area of certification offered by the Florida Bar during the past 10 years. The total number of attorneys certified so far is 121; about 60 percent of those who applied were granted certification. CONTROVERSIAL FROM THE START But controversy dogged the new specialty from the start. Before it was even approved, a Fort Lauderdale labor lawyer, Charles Caulkins, in oral arguments before the Florida Supreme Court, argued that combining employment and labor law was a mistake. The two fields are “vastly different,” says Caulkins, a partner at Fisher & Phillips who does defense work. The real fireworks, however, started in recent months, after Karen and Bill Amlong and Kent Spriggs were denied certification. The Amlongs say the committee did not tell them the reason for the denial, only that it was based on peer review and professionalism. But the husband-and-wife team say they know the reason. They believe it had to do with sanctions they received in 2000 in connection with an employment case against the Denny’s restaurant chain. U.S. District Judge Joan Lenard of the Southern District of Florida criticized Karen Amlong for filing a “frivolous” case. The magistrate judge in the case has recommended sanctions that could top $500,000, but Lenard hasn’t yet ruled on the exact penalty. The Amlongs were granted a hearing before the committee to contest the decision. They brought Chonin along to represent them, and say their suspicions were borne out during the hearing. “[The sanction issue] was the area of concern,” says Karen Amlong, who argued the Denny’s case point by point before the committee. The panel then reversed itself and granted certification to the Amlongs March 1. McCrea declines to comment on the case, saying he can’t discuss any individual decisions by the committee due to confidentiality requirements. Kent Spriggs says he, too, was given no reason for his rejection. In 1992, Spriggs was named one of the nation’s best litigators in employment law and the only one in Florida that year by The National Law Journal. Among his verdicts: an $11 million settlement from Piggly Wiggly supermarkets in a 1992 race discrimination case; and a $10 million settlement from Publix Super Markets in a 2000 class action race discrimination case brought by black employees. Spriggs says he listed nine judges as references, but none was called by the committee. “He’s a very aggressive lawyer, a very knowledgable plaintiff lawyer with a national reputation and a string of successes,” says Mike Massinter, a law professor who teaches employment discrimination law at Nova Southeastern University. “He’s an excellent lawyer, who had one controversial case.” The case he was referring to was a 2000 matter, in which Spriggs was fined $5,000 by a federal judge in New York for allegedly making unsubstantiated allegations in a sexual harassment lawsuit brought by female employees of Salomon Smith Barney. The allegations were contained in a motion to modify a settlement in the case, which was popularly known as the “boom boom room” case. The sanctions were reversed by an appeals court. ‘CAN’T FACE YOUR ACCUSER’ Despite the reversal, certification committee members still asked Spriggs about the sanctions issue during the hearing on his appeal of the certification denial, Spriggs says. He is now appealing the committee’s decision to the Bar’s Board of Legal Specialization; a hearing is scheduled for Friday. If the denial is not reversed, Spriggs vows to appeal all the way to the Florida Supreme Court, and warns he might also sue the Bar. He and his lawyer, Chonin, question why the peer review records are not open to the applicant. “You can’t find out who complained, or what was said about you,” says Chonin. “It’s like going on trial and not being able to face your accuser. This is very damaging to someone’s reputation.” Chonin argues for eliminating the peer review element from the approval process. “If you pass the test, you should be in,” he says. Because relations between the plaintiff bar and defense bar in employment law are so acrimonious, inviting lawyers from opposite sides to comment on each other has no value, he says. Karen Amlong speculates that there could be an economic motive involved in the certification process. Board certification enables lawyers to charge higher fees, and defense lawyers may be trying to prevent plaintiff lawyers from being able to charge more because those higher fees could be passed along to their defense clients, she says. But McCrea, the certification committee chair, points that rejected applicants have an opportunity to make their case in person before the committee, which, he says, “keeps an open mind.” Peer review is an important part of the process, he insists. “It’s how you’ve conducted yourself as a lawyer, not just what you know,” he says. Comments from lawyers must be kept confidential, he adds, or no one would cooperate. McCrea says he and other committee members, who serve on a volunteer basis, are upset by the criticism from applicants who were rejected. He says several other committee members have quit in mid-term. “I’m beginning to wonder why anyone would serve on a committee like this,” he says. “It’s a thankless job.”

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