Someone asked me the other day if I considered myself an expert on legal ethics. Hmmm…. Good question. When I left my office as disciplinary counsel, I had handled something over 1,100 files. In some circles, doing the same thing again and again gives you some creds.
I am told that in picking a surgeon, the best thing to look for is someone who has done your operation many, many times. I guess practice makes perfect. But we lawyers have different rules concerning expertise.
The common law of evidence provides that anyone who has knowledge beyond the ken of the ordinary juror may qualify as an expert. Section 7-2 of the Code of Evidence provides that an expert is one who is qualified as such by virtue of skill, experience, training, education or "otherwise."
Our attorney advertising rules take a different approach however. Rules 7.4 and 7.4A deal with claims of expertise. But they use the term "specialist." To be a specialist, a lawyer must be certified as such by a board or body approved to do so. At present, there are six specialties for which Connecticut lawyers can obtain certification – consumer and business bankruptcy, civil and criminal trial advocacy, workers’ compensation and child welfare law.
Thus, it is possible for a lawyer to be an expert, but not a specialist. That’s kind of funny as one would think that there were fewer experts than there are specialists. Specialists are such by self-identification, focus or inclination. Experts are expert because they have objective proof that they have more knowledge or experience than the average practitioner.
But because there is no recognized certification entity for expertise in lawyer ethics (or many other fields), it is possible for someone to be an expert but not a specialist. And the commentary to Rule 7.4 provides that while a lawyer may say she focuses on or concentrates in an area of law, she may not claim that she is an expert unless certified as a specialist. (And these rules are designed to avoid confusion!)
There is presently a proposal to recognize real estate law as a specialty. A lot of lawyers do real estate. If real estate is approved for certification, the certifying agency will probably require proof that the lawyer practices significantly in the area (for instance, that it is at least some minimum percentage of the lawyer’s practice), can pass an exam and has taken and continues to take a minimum amount of CLE.
I know of a few real estate lawyers who are experts. But unless they obtain a certification as a specialist, they cannot advertise as being experts. So someone in a volume closing practice willing to take the test and do the CLE may obtain certification as a specialist while the true real estate expert, who may only do a few but extremely complex deals in a year, might not.
I know some real estate lawyers who are not happy about the present proposal to certify lawyers because they feel that it may imply expertise in the field when the test may well only be competence. They are concerned that banks, other lenders, and perhaps consumers may all conflate certification as a specialist with expertise. On a related topic, John Bonee proposed to the Connecticut Bar Association House of Delegates the other day that expert (or specialist) certification be available to acknowledged experts who are not inclined to sit for an exam. We all know folks like them, senior lawyers considered true luminaries in their fields, but at present unable to advertise as such because no one will certify them as a specialist. Because the rules do not allow for such a certification process, which I term "calling a spade a spade," Mr. Bonee’s proposal went nowhere. But that does not mean he was wrong.
All of this gets very confusing. And if it is confusing for lawyers, imagine the public trying to figure out the difference between a specialist and an expert. Frankly, if I was going to have a surgery, I would want someone who was expert at it, rather than someone who had the right to call himself a specialist. Same for my legal problems.
Rule 7.1 provides that advertising cannot be false or misleading. Perhaps that should be the only test. If a true expert wants to advertise as such, and can prove it, God bless her. If someone wants to claim to be a specialist (or a Super Lawyer), and has the paper to prove he passed the test, good luck to them too. But I am not sure one is the same as the other.
Mark DuBois, the former chief disciplinary counsel for Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano.