Certification

The Florida Bar has established a Certification program whereby attorneys can identify themselves as specialists in a particular practice area. The Florida Bar described Certification as follows: “Certification is the highest level of evaluation by The Florida Bar of competency and experience within an area of law, and professionalism and ethics in practice.”

The Code of Professional Responsibility also contains the terms and conditions which must be met in order for an attorney to become certified. Those provisions are set forth below:

RULE 6-3.5 STANDARDS FOR CERTIFICATION

(a) Standards for Certification. The minimum standards for certification are prescribed below. Each area of certification established under this chapter may contain higher or additional standards if approved by the Supreme Court of Florida.

(b) Eligibility for Application. A member in good standing of The Florida Bar who is currently engaged in the practice of law and who meets the area's standards may apply for certification. From the date the application is filed to the date the certificate is issued, the applicant must continue to practice law and remain a member in good standing of The Florida Bar. The certificate issued by the board of legal specialization and education shall state that the lawyer is a "Board Certified (area of certification) Lawyer."

(c) Minimum Requirements for Qualifying for Certification With Examination. Minimum requirements for qualifying for certification by examination are as follows:

(1) A minimum of 5 years substantially engaged in the practice of law. The "practice of law" means legal work performed primarily for purposes of rendering legal advice or representation. Service as a judge of any court of record shall be deemed to constitute the practice of law. Employment by the government of the United States, any state (including subdivisions of the state such as counties or municipalities), or the District of Columbia, and employment by a public or private corporation or other business shall be deemed to constitute the practice of law if the individual was required as a condition of employment to be a member of the bar of any state or the District of Columbia. If otherwise permitted in the particular standards for the area in which certification is sought, the practice of law in a foreign nation state, U.S. territory, or U.S. protectorate, or employment in a position that requires as a condition of employment that the employee be licensed to practice law in such foreign nation state, U.S. territory, or U.S. protectorate, shall be counted as up to, but no more than, 3 of the 5 years required for certification.

(2) A satisfactory showing of substantial involvement in the particular area for which certification is sought during 3 of the last 5 years preceding the application for certification.

(3) A satisfactory showing of such continuing legal education in a particular field of law for which certification is sought as set by that area's standards but in no event less than 10 certification hours per year.

(4) Passing a written and/or oral examination applied uniformly to all applicants to demonstrate sufficient knowledge, skills, and proficiency in the area for which certification is sought and in the various areas relating to such field. The award of an LL.M. degree from an approved law school in the area for which certification is sought within 8 years of application may substitute as the written examination required in this subdivision if the area's standards so provide.

(5) Current certification by an approved organization in the area for which certification is sought within 5 years of filing an application may, at the option of the certification committee, substitute as partial equivalent credit, including the written examination required in subdivision (c)(4). Approval will be by the board of legal specialization and education following a positive or negative recommendation from the certification committee.

(6) Peer review shall be used to solicit information to assess competence in the specialty field, and professionalism and ethics in the practice of law. To qualify for board certification, an applicant must be recognized as having achieved a level of competence indicating special knowledge, skills, and proficiency in handling the usual matters in the speciality field. The applicant shall also be evaluated as to character, ethics, and reputation for professionalism. An applicant otherwise qualified may be denied certification on the basis of peer review. Certification may also be withheld pending the outcome of any disciplinary complaint or malpractice action.

As part of the peer review process, the board of legal specialization and education and its area committees shall review an applicant's professionalism, ethics, and disciplinary record. Such review shall include both disciplinary complaints and malpractice actions. The process may also include solicitation of public input and independent inquiry apart from written references. Peer review is mandatory for all applicants and may not be eliminated by equivalents.

(d) Minimum Requirements for Qualification Without Examination. When certification without examination is available in an area, the minimum requirements for such certification are as follows:

(1) A minimum of 20 years in the practice on a full-time basis.

(2) A satisfactory showing of competence and substantial involvement in the particular area for which certification is sought during 5 of the last 10 years, including the year immediately preceding the application for certification. Substantial involvement in the particular area of law for the 1 year immediately preceding the application may be waived for good cause shown.

(3) A satisfactory showing of such continuing legal education in a particular field of law for which certification is sought as set by that area's standards but in no event less than 15 hours per year.

(4) Satisfactory peer review and professional ethics record in accordance with subdivision (c)(6).

(5) Certification without examination may be granted only:

(A) to individuals who apply within 2 years after the date on which the particular area is approved by the Supreme Court of Florida; or

(B) as otherwise permitted in the particular standards for the area for which certification is sought.

(6) Payment of any fees required by the plan.

6-20 Standards For Certification Of A Board Certified Elder Law Lawyer

RULE 6-20.1 GENERALLY

A lawyer who is a member in good standing of The Florida Bar and who meets the standards prescribed below may apply to The Florida Bar board of legal specialization and education for a certificate identifying the lawyer as a "Board Certified Elder Law Attorney." The purpose of the standards is to identify those lawyers who practice in the area of elder law and who have the experience, knowledge, skills, and judgment to be properly identified to the public as certified elder law attorneys.

RULE 6-20.2 DEFINITIONS

(a) Elder Law. "Elder law" means legal issues involving health and personal care planning, including: advance directives; lifetime planning; family issues; fiduciary representation; capacity; guardianship; power of attorney; financial planning; public benefits and insurance; resident rights in long-term care facilities; housing opportunities and financing; employment and retirement matters; income, estate, and gift tax matters; estate planning; probate; nursing home claims; age or disability discrimination and grandparents' rights. The specialization encompasses all aspects of planning for aging, illness, and incapacity. Elder law clients are predominantly seniors, and the specialization requires a practitioner to be particularly sensitive to the legal issues impacting these clients.

RULE 6-20.3 MINIMUM STANDARDS

(a) Minimum Period of Practice. The applicant shall have been engaged in the practice of law in the United States, or engaged in the practice of United States law while in a foreign country, and shall have been a member in good standing of the bar of any state of the United States or the District of Columbia for a period of 5 years as of the date of filing an application. The years of law practice need not be consecutive.

(b) Substantial Involvement. The applicant must demonstrate substantial involvement in elder law as defined by the following:

(1) At least 5 years of law practice, of which at least 40 percent has been spent in active participation in elder law. At least 3 years of this practice shall be immediately preceding application.

(2) Substantial involvement means the applicant has devoted 40 percent or more of the applicant's practice to matters in which issues of elder law are significant factors and in which the applicant had substantial and direct participation in those elder law issues in each of the 3 years preceding the application. An applicant must furnish information concerning the frequency of the applicant's work and the nature of the issues involved. For the purposes of this subdivision the "practice of law" shall be defined in rule 6-3.5(c)(1), except that it shall also include time devoted to lecturing and/or authoring books or articles on elder law if the applicant was engaged in the practice of law during such period. Demonstration of compliance with this requirement shall be made initially through a form of questionnaire approved by the elder law certification committee but written or oral supplementation may be required.

(c) Practical Experience. During the 3 years immediately preceding the application, the applicant shall have provided legal services in at least 60 matters as follows:

(1) Forty must be in categories listed in (A) through (E) below, with at least 5 matters in each category.

(2) Ten of the matters must be in categories listed in (F) through (M) below. No more than 5 in any 1 category may be credited toward the total requirement of 60 matters.

(3) The remaining 10 matters may be in any category listed in (A) through (M) below, and are not subject to the limitation contained in parts (1) or (2) of this subdivision.

(4) As used in this subdivision, an applicant will be considered to have "provided legal services" if the applicant: provided advice (written or oral, but if oral, supported by substantial documentation in the client's file) tailored to and based on facts and circumstances specific to a particular client; drafted legal documents such as, but not limited to, wills, trusts, or health care directives, provided that those legal documents were tailored to and based on facts and circumstances specific to the particular client; prepared legal documents and took other steps necessary for the administration of a previously prepared legal directive such as, but not limited to, a will or trust; or provided representation to a party in contested litigation or administrative matters concerning an elder law issue.

(5) The categories are:

(A) Health and personal care planning, including giving advice regarding and preparing, advance medical directives (medical powers of attorney, living wills, and health care declarations) and counseling older persons, attorneys-in-fact, and families about medical and life-sustaining choices, and related personal life choices.

(B) Pre-mortem legal planning, including giving advice and preparing documents regarding wills, trusts, durable general or financial powers of attorney, real estate, gifting, and the financial and tax implications of any proposed action.

(C) Fiduciary representation, including seeking the appointment of, giving advice to, representing, or serving as executor, personal representative, attorney-in-fact, trustee, guardian, conservator, representative payee, or other formal or informal fiduciary.

(D) Legal capacity counseling, including advising how capacity is determined and the level of capacity required for various legal activities, and representing those who are or may be the subject of guardianship/conservatorship proceedings or other protective arrangements.

(E) Public benefits advice, including planning for and assisting in obtaining Medicare, Medicaid, Social Security, Supplemental Income, Veterans' benefits, and food stamps.

(F) Advice on insurance matters, including analyzing and explaining the types of insurance available, such as health, life, long-term care, home care, COBRA, medigap, long-term disability, dread disease, and burial/funeral policies.

(G) Resident rights advocacy, including advising patients and residents of hospitals, nursing facilities, continuing care facilities, and those cared for in their homes of their rights and appropriate remedies in matters such as admission, transfer and discharge policies, quality of care, and related issues.

(H) Housing counseling, including reviewing the options available and the financing of those options such as mortgage alternatives, renovation loan programs, life care contracts, and home equity conversion.

(I) Employment and retirement advice, including pensions, retiree health benefits, unemployment benefits, and other benefits.

(J) Income, estate, and gift tax advice, including consequences of plans made and advice offered.

(K) Counseling about tort claims against nursing homes.

(L) Counseling with regard to age and/or disability discrimination in employment and housing.

(M) Litigation and administrative advocacy in connection with any of the above matters, including will contests, contested capacity issues, elder abuse (including financial or consumer fraud), fiduciary administration, public benefits, nursing home torts, and discrimination.

(d) Peer Review. The applicant shall submit the names and addresses of 5 other attorneys who are familiar with the applicant's practice, not including attorneys who currently practice in the applicant's law firm, who can attest to the applicant's special competence and substantial involvement in the field of elder law. The board of legal specialization and education and elder law certification committee may authorize references from persons other than attorneys and may also make such additional inquiries as they deem appropriate to complete peer review, as provided elsewhere in these rules.

(e) Education. The applicant must demonstrate that during the 3-year period immediately preceding the date of application, the applicant has met the continuing legal education requirements in elder law as follows. The required number of hours shall be established by the board of legal specialization and education and shall in no event be less than 60 hours. Credit for attendance at continuing legal education seminars shall be given only for programs that are directly related to elder law. The education requirement may be satisfied by 1 or more of the following:

(1) attendance at continuing legal education seminars meeting the requirements set forth above;

(2) lecturing at, and/or serving on the steering committee of, such continuing legal education seminars;

(3) authoring articles or books published in professional periodicals or other professional publications;

(4) teaching courses in elder law at an approved law school or other graduate level program presented by a recognized professional education association;

(5) completing such home study programs as may be approved by the board of legal specialization and education or the elder law certification committee, subject to the limitation that no more than 50 percent of the required number of hours of education may be satisfied through home study programs; or

(6) such other methods as may be approved by the board of legal specialization and education and the elder law certification committee.

The elder law certification committee shall establish policies applicable to this subdivision, including, but not limited to, the method of establishment of the number of hours allocable to any of the preceding requirements. Such policies shall provide that hours shall be allocable to each separate but substantially different lecture, article, or other activity described in subdivisions (2), (3), and (4) above.

(f) Examination. The applicant must pass an examination designed to demonstrate sufficient knowledge, proficiency, and experience in elder law to justify the representation of special competence to the legal profession and the public.

(g) Exemption. Any applicant who as of the effective date of these standards is: currently certified by the National Elder Law Foundation and meets all other requirements set forth under subdivisions (a) through (e), shall be exempt from the examination. This exemption shall only be applicable with respect to any applicant meeting the aforesaid requirements and whose application is submitted within 2 years from the effective date of these standards.