No resolution presented herein reflects the policy of the Minnesota State Bar Association until approved by the Assembly.  Information reports, comments, and supporting data are not approved by their acceptance for filing and do not become part of the policy of the Minnesota State Bar Association unless specifically approved by the Assembly.

Report and Recommendation on approving a Certification Committee charged with increasing the number of MSBA Certified Legal Specialists in current and new areas and to allocate funding for staff to support Specialty Area development.

Recommendation:

RESOLVED:  That the MSBA Assembly authorizes the President to appoint a Legal Specialist Certification Committee (hereinafter Certification Committee) to be charged with increasing the number of attorneys who are MSBA certified specialists, both by supporting both new and current specialty areas and by developing a plan to increase awareness of the value of legal certification among attorneys and the public.

RESOLVED: That the Assembly approves funding of $30,000 (approximately $15,000 in 2007-08 and $15,000 in 2008-09) to fund a staff person to work 20 hours per week for one year to: 1) support new Specialty Area Accreditation committees formed to apply for accreditation as certifying agencies; and 2) develop an ongoing plan to increase awareness of the value of legal specialist certification among MSBA members and the public.

Report: History and Background
In 2002, the two MSBA certified specialist programs for Real Property and Civil Trial began operating in deficit and using their reserves to balance their yearly expenses.  Both programs are totally self-supporting with revenue obtained from specialist fees.  Neither program has ever reached 375 specialists, although new applications consistently replace decertifications. 

The programs’ greatest expenses are MSBA personnel expenses and accreditation fees paid to the Minnesota State Board of Legal Certification (hereinafter MBLC).  MBLC revenue is primarily derived from fees collected by the programs from each certified specialist.  The MSBA certifies 80% of the specialists in Minnesota and therefore contributes the largest portion of MBLC revenue.

Also very problematic for the future of legal specialist certification in Minnesota, the MBLC was itself projecting a deficit within the next three years as their expenses increase.  Absent growth in the number of specialists paying fees to the MBLC, therefore, an MBLC fee increase seemed inevitable, requiring a concomitant fee increase by the MSBA programs.

An MSBA fee increase was likely to decrease the number of specialists and aggravate the financial difficulties i.e. the numbers of specialists decrease as a result of a fee increase, thereby requiring more fee increases, causing more specialists to discontinue their certification. 

In light of these financial problems, the Supreme Court appointed a Task Force to consider the future of legal certification in Minnesota, including the professional and public demand for legal certification.

Among the Task Force conclusions issued in 2007:           

·       The public benefits from having a specialist program where credentials can be determined and monitored by a local, independent board and specialist claims can be verified.       

·       The public expects the court or the profession to determine the qualifications of specialists and generally agrees with the criteria currently in use [by the MSBA Certification programs].

·       Even in states (Texas, California and Florida) with the largest number of specialists, …while new specialist certification is sufficient to replace attorneys whose certification is not renewed, the major increase in the number of certified specialists occurs when new areas of certification are added. 

·       The MSBA programs’ fees were at a point where raising them would likely reduce certified specialists in Minnesota.

·       The number of certified attorneys in current and new specialty areas be increased.

·       The MSBA and the MBLC both had a responsibility to explore ways in which to create new specialty areas with additional specialists in order to support legal specialization for the benefit of the public.

The Task Force recommended formation of a committee to discuss ways to develop certification and to address the financial issues resulting from the lack of growth in the number of specialists being certified. 

In response, the Supreme Court has looked to both the MSBA and the MBLC to work together to solve the problem before fees had to be raised with the likely undesirable result.  Justice Lori Gildea convened a committee consisting of MSBA and MBLC representatives in an effort to find a solution to the stagnation in the number of Minnesota certified specialists and the resultant financial difficulties. 

To eliminate deficit operations, beginning in June of 2007, the MSBA reduced the number of staff hours supporting the specialist programs.  While this action helps reduce or eliminate the financial deficits, it also depletes staff ability to market and recruit new specialists in the two current programs.

Tim Gephart, Vice-President of Minnesota Lawyer’s Mutual (MLM), serving as a representative of the MBLC, announced that in order to increase the number of attorneys seeking certification, MLM will provide a 5% malpractice insurance rate credit to any certified specialist.  In addition, MLM will provide complimentary CLE programming to any firm having a (as yet unspecified) percentage of attorneys who are certified, whether or not the firm is insured by MLM.

In determining further steps the MSBA could take moving forward, there are four important considerations:

• As the Task Force noted, growth in the number of specialists comes from the formation of new specialty areas, not from attempts to recruit specialists in current specialties.  If the MSBA is going to propose a way to increase the number of specialists, it will have to devise a method to add additional specialty areas.  

• Although two section councils, Criminal Law and Labor and Employment, surveyed their members in 2005 and voted to apply for accreditation as certifying agencies, neither has found the resources to draft the proposal to seek the necessary Assembly approval to form an accreditation committee. Thus, neither section has yet acted on their members’ recommendations that the section offer specialist certification in their practice areas.  This delay makes it clear that the burden of establishing specialist committees requires resources from the larger MSBA community rather than relying on sections to complete the task.  The MSBA provided staff support to the two current programs during their MBLC Agency Application process.

• The two sections who have voted to apply for agency accreditation have 240 and 266 members in firms of 20 or fewer, MLM’s market.  The rate credit will provide a valuable incentive to lawyers to apply for specialist certification, thereby increasing the chances of a successful outcome for the new programs.  Other possible new specialty areas include Probate & Trust or Family Law.  One other Section Council, Employee Benefits, is also in preliminary discussions about certification. (See attached charts from the ABA Standing Committee on Specialization showing the number of specialists and specialty areas nationwide.)

• An additional 200 new specialists are needed to avoid an MBLC fee increase and resulting MSBA fee increase.    To keep costs at manageable level for attorneys interested in obtaining or retaining their designation as a specialist, overall numbers must increase by at least 200.  Since 100 specialists are required to maintain a viable certification program, at least two new MSBA specialty areas must be established. 

Recommended Action:
Currently there are no direct MSBA staff hours assigned or available to encourage the development of new specialty areas among the sections, nor are any of the MSBA policy committees charged with certification development. 

1. The MSBA should add temporary staff support to assist the Criminal Law Section and Labor and Employment Section in finalizing their applications to become certifying agencies.  This would require a one-time allocation of 20 hours per week of staff time for one year at an estimated cost of $30,000.  There will be no extension of this funding request beyond the one year period.

• The request for general funds rather than funds from individual Section budgets results because the position is meant as a catalyst to growing certification in Minnesota, taking advantage of the heightened interest from the malpractice discount.  Increasing the number of certified specialists will benefit MSBA legal certification programs generally, including the current programs, rather than creating a benefit to a particular section.

• It is necessary to hire staff possessing both the necessary expertise about certification and the specific administrative tasks that must be completed during the accreditation process in order to free the volunteer attorneys on the Accreditation Committees for substantive tasks such as setting Program Standards and examination procedures.

• The current half-time certification manager cannot assume these duties  since her salary is fully funded by fees paid by the current Certified Specialists.  The manager’s current duties are devoted exclusively to the two current specialty areas. Also, the manager position was filled as a part time position with some flex time attributes.

2. Sections may form accreditation committees  to develop plans for certification programs without prior Assembly approval.  The accreditation committees will be required to obtain Assembly approval before submitting the finalized certification application to the MBLC for accreditation.  Proposed specialties in practice areas outside of current MSBA section practice areas would need Assembly approval to form an Accreditation Committee.

3. A Certification Committee to assist with recruitment and marketing for all MSBA specialty programs should be created.  The Committee would also oversee Accreditation Committees completing MBLC Agency Applications and encourage the formation of new specialty areas. 

Expected Outcomes:

• Two Sections will form Accreditation Committees and finalize the Agency Application to become certifying agencies with the goal of adding a minimum of 200 new MSBA specialists between the two areas.  Both Criminal Law and Labor and Employment have committed to organizing Accreditation Committees if staff assistance is provided. 

• MSBA staff, working with the Certification Committee, will develop an ongoing marketing plan to increase awareness of the value of legal specialist certification among MSBA members and the public.

• Increased awareness among attorneys as a result of the malpractice discount for Certified Specialists and the visibility of two new MSBA specialty areas will enhance the perceived value of earning certification among MSBA members.

If these expected outcomes are not achieved, it is likely that a certification program in Minnesota is not viable.