Certified and Approved
How a new Texas Board of Legal Specialization certification is born.
By Eric Quitugua
Every year, a new group of attorneys emerges with certifications by the Texas Board of Legal Specialization, or TBLS, recognizing mastery of their respective law areas. These certifications reflect the hard work and preparation lawyers put into taking the board’s exam and separate them from the pack of attorneys who practice in the same areas. The recognition raises professional standards and gives members of the public the confidence that they are being represented by a certified attorney on the legal issues in their case.
Though there are 24 areas an attorney can become certified in—including the recent additions of child welfare law and property owners association law—the wheels to roll out new ones don’t stop spinning. With more exams, more inductions, and untapped niches in law on the horizon, the TBLS brain trust looks ahead to new certifications. But what is that process like, what does a good proposal entail, and why does it matter?
“We take our mission very seriously and that is to protect the public and provide guidance regarding availability and accessibility of quality attorneys to the public,” TBLS Executive Director Leo Figueroa said. “TBLS really provides an objective measure by which the public can decide whether a particular lawyer has the requisite competency in a particular area of law.”
Typically, proposals for new specialties come from State Bar of Texas sections, but they can also come from groups of attorneys, the judiciary, and others. Proposals, submitted to the TBLS Board of Directors, include information on why that area of the law deserves recognition by TBLS and how it benefits the public and profession. Standards like a lawyer’s minimum substantial involvement in the area are included. Though the board has rejected applications in the past, more often its members will work with the applicants on tweaking any deficiencies or things that are unclear.
“First, I want to make sure that it’s truly significant enough to be recognized as a specialty—that there are enough people practicing that particular area that a certification would be beneficial to the public,” TBLS Chair Frank Carroll said. “If it’s something that there are only 50 lawyers in the whole state of Texas involved in, that’s probably not something that I would encourage them to proceed with.”
Carroll, who reviews applications with the rest of the board, says that written proposals may include a page of signatures from at least 100 lawyers interested in creating the new certification.
The board at times may ask for a draft of proposed multiple choice questions and essay questions that might be used to test expertise, Carroll said.
Applications also identify attorneys with an interest in the area willing to serve on either an advisory commission, which determines if people applying to be certified meet requisites and should be approved to take the exam, or the exam commission. The latter forms the testing, which is made up of three essay prompts and 100 multiple choice questions all designed by lawyers in the specialty area, and grades anonymously. Members of the exam commission are not allowed to test for certifications though members of the advisory commission are.
Once a proposal for a new certification is finalized and sent to the board, it goes to public comment. If comments show that the specialty area is viable, the board then moves the application to the Texas Supreme Court, whose members make the ultimate decision on whether a new certification is approved.
Carson Fisk, who is certified in construction law, was instrumental in getting the practice area on the list of certifications by TBLS in 2016. Along with others, he got buy-in from council members of the State Bar’s Construction Law Section, promoting the idea of the new area and using their support to show TBLS there was demand.
Along with the first wave of construction lawyers, Fisk took the exam. Though construction law was 100% of his practice, passing the exam was far from a sure thing.
“I printed out cases, statutes, and articles and put together a large study binder based on things that were fundamentals and major cases,” Fisk said. “It was not something that I was comfortable going into cold—and I’m glad I did not because it is definitely a challenge—simply thinking you already know it all isn’t enough. I think you really have to be prepared to put in the time to study.”
Once attorneys are certified by TBLS, they are required to have at least 60 hours of CLE in the specialty area in the three years immediately following their application. Every fifth year, they need 100 CLE hours in the specialty area during the five years since last certification or recertification as well as the required number of references from attorneys substantially involved in the specialty area.
Dean Rucker chaired the advisory commission for the child welfare law certification, which just saw its first wave of inductees in March. The process to get the practice area official status by TBLS began in 2015 when the need for the certification was expressed to the TBLS board by Texas Supreme Court Justice Eva Guzman and now retired Texas Supreme Court Justice Phil Johnson. TBLS went to work with Rucker and others, seeking the advice of representatives from the Texas Department of Family and Protective Services, the Harris County Attorney’s Office, attorneys for children and parents, judges, law professors, and other experts in child welfare law. Those people, Rucker said, helped the commission determine standards for the certification.
“We structured the experience level for folks who have dedicated a substantial amount of their time handling child welfare cases in some capacity—either representing the department or representing parents or children,” Rucker said. “You have to have participated in a number of cases over a period of three years, which is set out in our standards. That was just simply to qualify for taking the exam, and then they had to sit for an exam if they were approved.”
Dave Dickson was TBLS chair when property owners association, or POA, law was in the stages of becoming a new certification. He said it became apparent there was demand for the practice area after seeing experienced and competent attorneys not being allowed to sit for residential or commercial real estate law exams. One such attorney managed for a client a large commercial building that contained a hotel, retail shops, a residential condominium association, apartments, and leases for telephone antennas. Yet, Dickson said, the attorney was not able to sit for the exam for any of the existing real estate law specialties (pre-POA law) because she hadn’t handled enough foreclosures or property acquisitions or condemnation cases.
When POA law was on the table, Dickson acted as liaison between TBLS, a newly formed common interests ownership committee, and the State Bar’s Real Estate, Probate, and Trust Law Section. Together, they set requirements for attorneys that included showing in detail certain tasks or projects and cases they’ve been involved in and completed. The idea, he said, was to include “extremely competent” attorneys who weren’t being recognized and who didn’t fit into existing specialty areas.
“Certification gives you credibility among your peers,” Dickson said. “I think when board certified attorneys talk to each other, it’s with a level playing field and an equal amount of respect.”
As for the future, Fisk said that anyone interested in helping form a new certification area needs to find support from many people—including State Bar sections. The “critical mass” of support, he said, moves the process forward on its own, showing the specialty is viable and something people each year will be interested in achieving.
“So if it’s a specialty area with a related State Bar section, that’s a logical starting point,” Fisk said. “If it’s an area with no related section, then I think there’s a greater amount of work and I presume a greater amount of scrutiny that goes with it. But I imagine a group of motivated people could get most anything done.”
For more information about TBLS and on submitting a proposal for a new certification area, go to tbls.org.TBJ