The Gazette 1980

APRIL 198I

GAZETTE

judge of any court of record in California, or any federal court, chosen by the applicant, before whom the applicant has appeared as an advocate in crim- inal proceedings within the two (2) years immedi- ately preceding application; three (3) shall be Cali- fornia lawyers with whom applicant has tried a criminal case, but with whom applicant is not associated. In appropriate instances of limited prac- tice the Criminal Law Advisory Commission, upon prior motion, may permit the applicant to submit as a reference the name of an attorney for whom he or she has acted as a reference. "The Criminal Law Advisory Commission shall select four (4) lawyers or judges who practice or preside in the same area as the applicant for further evaluation of the applicant's proficiency in the practice of criminal law." Workers' Compensation Law has no requirement of peer review. It is in the area of substantial involvement in the speciality field that the standards diverge the most. Both Criminal Law and Workers' Compensation Law are primarily quantitative as to this standard, while Taxation Law relies more on a qualitative approach. Because of the more limited nature of its field, Workers' Compensation Law requires only one-fourth of the applicant's time be spent in the field in each of three of the five years immedi- ately preceding application, but it does require that the applicant make at least 300 appearances by personal attendance before a forum in California dealing with Workers' Compensation matters within the same five- year period. The Criminal Law standards require one- third of the applicant's time during each of three years of similar five-year period to be devoted to the field and requires participation in a rather complex series of felony jury trials, other trials, special criminal proceedings, extraordinary writ proceedings and appellate proceedings in order to qualify. The standards for Taxation Law require that, in a similar period, "more than one-half of the applicant's practice be devoted to matters in which issues of tax law are significant factors". The applicant is then required to show that he has had "substantial and direct participation in such tax issues by giving infor- mation concerning the frequency of the work and the nature of the issues involved". The examinations evolved by all of the Advisory Commissions seek to allow the applicant to demonstrate his familiarity with the more recent issues and trends which have appeared in the field, the approaches to many of which are not yet resolved by the leading practitioners or the trial forums, and which constitute matters currently creating problems for the experienced and involved practi- tioner. Contrary to the Bar Examination administered to law school graduates shortly after matriculation for the purpose of admission to practice, which examination tests the student's knowledge of statutory law and rules under stare decisis pertaining to the pertinent subject matter as well as his approach to issue recognition and legal reasoning, the specialists' examination tests whether or not this experienced lawyer is living on the "cutting edge" of the law in his field. Since standards were adopted in the original three fields of the Pilot Programme, additional standards have been promulgated in the fields of Family Law, Labour

The Board has overall responsibility to administer the plan, to give final approval of Standards for Certification, to administer examinations of applicants on a regular basis and to certify and rectify specialists who qualify. The Advisory Commissions advise the Board concerning various matters pertaining to its field, suggest to the Board tentative standards for Board consideration, monitor the fitness of continuing legal education courses for accreditation for certification purposes and supervise the preparation and grading of examination questions. Both the Board and the Advisory Commissions are active with rejected applications where a hearing is requested and facts are disputed by the applicant. Prior to adoption of any standards for certification of specialists, the Board decided as a matter of policy that the standards should not be so stringent that only the rare lawyer with an outstanding reputation who practices in a metropolitan environment representing large and wealthy clients can participate. Rather, most competent, experi- enced lawyers sufficiently involved in the fields of law should qualify. From the inception of the work of the Special Committee in 1966, it was intended that the public be the primary beneficiary of the certification programme by insuring that the programme provide a method to identify the competent practitioner and to communicate this identification. The programme was not and is not intended as merely a guarantee of threshold competence in a field, but neither is it intended as a means to insulate from their peers a few well-placed lawyers or to serve as the basis to increase legal fees. Lawyers were first certified under the Pilot Programme on 20th November 1973 under standards adopted for the three fields which are quite diverse. Each requires a minimum of five years practice of law. Practice of law is defined as "full time legal work done primarily for purposes of legal advice or representation". Each set of standards requires special educational experience, both prior to certification and following certification (in order to qualify for recertification), but in varying amounts dependent upon the nature of the field. Taxation law has the heaviest requirement for special educational experi- ence as it has often been said that the half life of knowl- edge in the tax field is perhaps five years. The standards for both Criminal Law and Taxation Law provide for peer review, but the requirement under the Criminal Law standards are much more stringent in this regard. A Taxation Law applicant must merely furnish the names and addresses of five other lawyers familiar with his or her practice, not including current partners or associates of the applicant, who can attest to his or her reputation for involvement in the field of Taxation Law. The applicant for Criminal Law certifi- cation is subject to the following peer review, taken directly from the standards. "An applicant shall submit the names and addresses of persons to be contacted as references to attest to the applicant's proficiency in the practice of criminal law. Except as hereinafter provided, the applicant shall not submit as a reference the name of an applicant for whom he or she has acted as a reference. Four (4) shall be lawyers, chosen by the applicant, who practise in the same areas as the applicant; one (1) shall be a

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