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Making Nice: The Benefits of Positive Peer Review

January 27, 2012 | by Bettie Kelley Sousa

This article is reprinted with the permission of the NC State Bar Board of Legal Specialization.

Regardless of the way it makes you feel, the Internet has given a pulpit to every preacher, a podium to every politician and a microphone to everyone with an opinion. The age of restaurant reviews and mystery shoppers has also come, at last, to lawyers. Simply meeting our ethical obligations and abiding by the standard of care are no longer cutting it. Even today’s most seasoned lawyer fears the devastation of reading a negative, untrue review on the Internet. But there are places where we can rate and be rated in confidence, with honesty and integrity.

There remain professional achievements requiring standards that correctly measure professionalism and competence. Board certification is one such achievement. Going back to the Peel decision by the U.S. Supreme Court in 1990, we learned that a lawyer may publicize his or her certification as a specialist as determined by a bona fide organization, typically one accredited by the ABA Board of Legal Specialization or by a state bar. While there is some variance in practice, the core requirements of specialization are:

  • Demonstration of competence in the field of specialization, which is usually done with an examination;
  • Actual practice in the field of specialization;
  • Completion of continuing legal education courses;
  • A clean (or explainable) bar record; and
  • Positive peer review.

Positive peer review is not always the easiest of the four to achieve. There are times when the other standards have been met, but a lawyer is denied certification or recertification due to negative peer review. This isn’t just a popularity contest, but rather a process, which is both simple and fair.

Both the American Board of Certification (ABC) and the North Carolina Board of Legal Specialization seek reference names of attorneys familiar with the applicant’s practice, including opposing counsel. Staff then reviews each peer’s response to a brief questionnaire about the applicant. In addition to questions you would expect about felony convictions, professional misconduct, and moral turpitude, most are focused on knowledge and ethics, including:

  • Do you know of any incidents that reflect a lack of skill, knowledge, proficiency or professionalism in the practice by the applicant?
  • Do you recommend the applicant for certification based on the following criteria?
    1. knowledge of practice area;
    2. advocacy skills (preparation, presentation, and consideration of client’s interest); and
    3. adherence to the ethical standards of practice area attorneys in the community.

While no one negative reference necessarily sinks an application, each reference is given weight by the specialty committee as a whole, which is comprised of lawyers who are board certified in the specialty. Peer review has been upheld recently by the U.S. Court of Appeals for the Eleventh Circuit in Doe v. Fla. Bar, 630 F.3d 1336 (2011), which affirmed the Florida Bar’s denial of a recertification application from a domestic law specialist. As stated by Circuit Judge Edward Carnes, recognition as a certified specialist is valid because it distinguishes a “somebody” from the others: “If every attorney who practices in an area is certified in it, then no one is anybody in that field.” In this case, the lawyer’s peers did not recommend her recertification because of a number of shortcomings, including poor professional judgment, “discourtesy to opposing counsel and instances of unnecessary scheduling difficulties.” In short, the Florida Bar determined that this lawyer’s numerous negative references from esteemed members of the judiciary and bar warranted the denial of recertification. Peer review worked.

Psychologists tell us that there are many benefits to making nice. If we are hateful to our adversaries, we are sharing that hate with every email, letter, motion hearing, trial, and appeal. If we get to know our adversaries, we are less inclined to write off their ideas and compromises as unworkable. We can enjoy our jobs more and, in return, our peers may reward us in a way that matters—with positive peer review.

Bettie Kelley Sousa has been practicing law with Smith Debnam since becoming licensed in 1981. She has a wealth of experience in state and federal courts, including bankruptcy courts, at both trial and appellate levels. She represents mostly business owners and businesses --- large and small --- in a variety of matters, including contract review, drafting and disputes....LEARN MORE

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