Attorneys Question Value of Workers’ Compensation Specialization Programs

"...certification is a good thing to have, especially with the constant influx of new attorneys each year."   Alan Gurvey

Pennsylvania became the ninth state in the country to certify attorneys as specialists in workers' compensation this March, joining Arizona, California, Connecticut, Florida, New Jersey, New Mexico, North Carolina, Ohio and Texas.

A total of 176 attorneys applied to take the exam, but only 171 of them qualified to sit. Of the 155 people who took the test, 149 passed.

Forest N. Myers, president of the Pennsylvania Bar Association, issued a statement earlier this year touting the benefits of the certification program.

"Certification is going to give those in need of legal services in the workers' compensation field valuable guidance when seeking counsel, and it's going to offer legal practitioners the ability to highlight their knowledge and expertise," he said.

But attorney participation in the states that offer certification is low, and even some lawyers who have taken the trouble to get certification say they don't see much value. Other lawyers disagree, saying certification helps them show clients they have the skills to adequately represent them while also providing an opportunity to sharpen legal skills in a complicated area of law that is constantly changing.

Florida

Florida's program is among the oldest, having been established in 1987. Miami claimant attorney Mark Zientz obtained his certification in 1988, although he said he has "no good answer" for why he has continued to maintain it since then. 

"If I did advertising, which I don't, I could say I was an expert in the ads," he remarked, sarcastically adding: "Big deal."

Zientz further contended that the designation "means nothing at all" under Florida's current statutory scheme for the payment of claimant attorneys. Florida law caps attorneys' fees on a sliding scale of percentages of benefits secured, based on the duration of each claim.

Scott Porter Williams, vice chair of the Florida Workers' Compensation Certification Committee, acknowledged that Zientz gave voice to "a valid concern." 

He conceded that for a lot of claimant attorneys, it's "not worth the time and effort" of going through the certification process. 

The application process is intensive, requiring an attorney to provide references, prove his participation in the trial of a minimum of 25 contested workers' compensation cases and sit for a six-hour exam. 

Williams said that the malpractice insurance rate for a certified specialist is also higher than for a noncertified attorney and that the "threshold for screwing up goes way down," since specialists are held to a higher standard of competence. 

Certified specialists must also complete 40 additional hours of continuing legal education beyond the normal amount required by the Florida Bar, as well as pay ongoing fees to maintain their certification.

It costs $250 to apply for certification, and $150 to sit for the exam. It's an additional $60 to use a laptop for the exam. Once the attorney passes the exam, he has to pay a $150 annual fee, and every fifth year, he has to "re-certify," which costs $250.

The re-certification process also requires that the attorney submit evidence that he has tried at least 15 cases in the past five years and undergo peer review again. 

Williams said claimant attorneys "really don't get any return on the investment" in terms of dollars, but obtaining and maintaining certification "does help you fine-tune and sharpen your work comp skills and keep you up-to-date on the law."

Since he works as a mediator, Williams said certification is beneficial to him since it "gives you a little bit of 'ump' when speaking to people who don't know you," and "when you say to someone, 'I'm board certified,' they tend to give more credence to what you have to say." 

Dawna Bicknell, director of legal specialization and education for the Florida Bar, said approximately 6 percent of eligible Florida Bar members–some 4,600 lawyers–are board certified in their fields of law. 

There are currently 201 certified workers' compensation specialists in the state. While the Bar does not track how many workers' compensation attorneys are practicing in Florida, Bicknell said the workers' compensation section of the Bar has 1,248 members. 

She said the Bar sees board-certified lawyers as having been "evaluated for professionalism and tested for expertise." 

Certification "recognizes an attorney's special knowledge, skills and proficiency in various areas of law and professionalism and ethics in the practice of law," Bicknell said. "It basically helps the public identify a lawyer who has that knowledge, skills and proficiencies in a practice area."

Williams advised, however, that "there are some excellent attorneys that are not certified and have no intention of getting certified," reiterating his point that the program is "not for everybody." 

Ten attorneys sat for the exam last year, and five passed it, Bicknell reported. The year prior, 12 sat and six passed.  

The next exam is set for May 16, 2014.

Tampa claimant attorney Michael Winer said he recalled the exam as being "rigorous," like 'a mini-bar exam," when he took it – and passed – 10 years ago.

Although "the economics don't change much" for a claimant attorney who gets certified, he said he thought it may make a difference if a client "seeks you out" because of it. 

Winer said he thought having certification gives potential clients "a reasonable degree of certainty that the person they're hiring is at the highest level of competence in that area of the law," and he personally wouldn't hire someone to represent him unless that attorney was certified.

"It's just like a doctor being board certified in an area of medicine," he explained. "You know they have additional training and education."

He added that the test "bears a very close and direct relationship to real world, daily life experiences" for a practicing comp attorney, and it "deals a lot with spotting issues that'd come up" in a real litigation setting. 

Which isn't to say, necessarily, that someone who isn't certified isn't competent, Winer said. "But there are very few who would qualify (for certification) and not be good at what they do."

Texas

Claimant attorneys in Texas, like their Floridian counterparts, also lack a financial incentive to pursue certification, claimant attorney Mike Doyle of Doyle Raizner observed.

Under 28 Texas Administrative Code §152.4, the maximum attorney fee rate in the state's workers' compensation system is $150 per hour.  

"It may be that a lesser number of folks are (pursuing certification) because they'd still be paid the exact same," Doyle posited.

Doyle said he does not anticipate seeking certification in workers' compensation since he is already certified as a specialist in personal injury law, and he's "not that enamored with taking tests."

But he said he thought anything that increases the "professionalization" of the practice of comp law "is always good," and he thought certification was "absolutely" something a potential client ought to look at when selecting an attorney.

"It shows they have the experience and the dedication (to the area of law)" necessary to get the certification, Doyle said. "It's not a guarantee, but it's a good marker that shows their experience and basic competence."

There are more than 70,000 attorneys licensed to practice in Texas, but only 7,000 are board certified in any specialization. Of that number, 96 are certified in workers' compensation, said Gary McNeil, executive director of the Texas Board of Legal Specialization.

He said he had no exact figures on how many attorneys practice workers' comp in Texas, but 511 have self-reported to the State Bar that they handle workers' compensation matters. 

McNeil reported that there is only one attorney who has applied for certification this year, and no one applied last year. 

The first year certification was offered was 2004. That year, 79 people applied for certification and 66 obtained it. The following year, 18 people applied and 10 were certified. Since then, the number of applicants has dropped into the single digits. 

McNeil said the passage rate has been around 75 - 80 percent each year on the exam, which is a six-hour multiple-choice and essay-question test.

In order to qualify to sit for the exam, an attorney must have been practicing law in Texas for five years and practicing in the comp arena for the three most recent years. The attorney must also submit personal references and undergo a criminal and disciplinary history check.

McNeil said the exam is supposed to test the things that a practicing attorney needs to know, and it is developed by a committee of practicing comp attorneys with that goal in mind.

The test is administered once each year and will be offered on Oct. 14 this year. The deadline to register for this year's exam has already passed. 

Defense attorney Jason Musick of  Burns Anderson Jury & Brenner is a certified specialist, and he said "it's always nice to have that designation as being a legal expert in a specific field."

He remarked that he wasn't sure it helped him and his firm attract any new business, "but it is a source of pride" for him.

"It says something about your knowledge of workers' compensation law if you've got the designation," Musick said, "but just because you don't have the designation doesn't mean you're not a really good attorney."

Since the application is time-consuming, he said it may be posing a bit of a barrier to attorneys seeking certification, but he insisted that it is "definitely something worthwhile" for other attorneys to pursue.

D. Kevin McGillicuddy, an attorney and claims adjuster with J.T. Parker & Associates in Austin, said he would like to get certified himself, but he doesn't think he can because he technically works for an adjusting firm, not a law firm, and so he appears before the Division of Workers' Compensation under the authority of his license as a claims adjuster, not an attorney. 

"It would be nice to be able to say I am (a specialist)," he said, although "no one has ever asked me that."

He said he thought certification is probably mostly a boon to newer attorneys who don't already have a reputation, because it would give a potential client "some assurance" of the lawyer's capabilities. 

McGillicuddy said he himself has never really taken certification into account in his own hiring practices.

"If someone seems like a good lawyer and they want to come work for me, I'll take them," he said, "but if they're certified, that would certainly be a bonus."

California

California has been certifying attorneys as workers' compensation specialists longer than any other state, according to Natalie Leonard, director of legal specialization in the office of admissions for the State Bar of California. She said 2013 marks the 40th anniversary of the workers' compensation certification program. 

About 2 percent of the state's attorneys are certified specialists in one of 22 areas of law, and there are about 1,000 who are certified in workers' compensation, she said. 

Certification "gives attorneys an independent means to demonstrate their abilities to consumers," Leonard said. "Like a Good Housekeeping symbol of approval."

California offers a six-and-a-half-hour long test biennially. The certification test for workers' compensation will be offered on Oct. 22 this year.

Leonard said that any attorney who has been practicing since January 2012 can sit for the exam, although those who have not been in practice for more than five years will not actually get their certification until they hit the five-year mark.

Applicants who register for the exam before Sept. 10 will have to pay $350 to sit for the exam, and an additional $150 to use a laptop. The fee rises to $500 after Sept. 10, and then goes up to $700 after Oct. 1. The last day to register is Oct. 15.

About 700 attorneys took the exam last year, and 72 percent of them passed, Leonard said. 

Defense attorney Tom Richard of Richard Thorson Graves & Royer in Oakland said that he has found certification to be a "very valuable tool" in his own practice.

Just this week, he said, he submitted a proposal to a potential client – a California county he declined to name – and the client had requested that the attorneys of any firm who wanted to submit a proposal for its representation be certified specialists in workers' compensation. Richard said he spoke to a colleague at another firm who had to pass up the potential client because that firm did not have a certified specialist in comp. 

Richard, who is vice chair of the State Bar's Workers' Compensation Law Advisory Commission, said he has used his status as a certified specialist "as a marketing tool over the years with all of my clients," and he has found that "it's particularly important to public entities and self-insured employers."

Applicant attorney Alan Gurvey of Rowen, Gurvey & Win said he too thinks that certification is a good thing to have, especially with the constant influx of new attorneys each year. 

In comp law, there is "so much to digest" and "so much litigation," Gurvey said it seems there are "a lot of attorneys flying by the seat of their pants." Going through the certification process can help "educate attorneys to be better at what they do," he said, and it "gives a good message" by encouraging attorneys to study for the exam.

As for whether it actually helps distinguish the qualifications of an attorney, Gurvey said, he was not so sure. "There are a number of good lawyers who know the law and aren't certified," and "it doesn't mean that one lawyer is better than another just because he or she is certified."

His friend and mentor, the late Ken Rowen, was one of the first attorneys to be certified as a specialist in workers' compensation law, Gurvey said, and Rowen "is a legend" in the workers' compensation profession. 

But Gurvey said "it was his personality and knowledge of the law that made him a legend, not the fact that he was a certified specialist," and there is "great variance" in terms of "recognition in the industry and effectiveness" even among those who get the certification. 

'The fact that someone is a specialist doesn't mean he or she is Ken Rowen, or Alan Gurvey," he quipped.

New York

New York does not certify attorneys as specialists in any field. 

Mark C. Mahoney, associate director of medical services for the New York State Bar Association, said his group has twice considered proposals for certification of attorney specialties, but both times the proposals were defeated by its governing body, the House of Delegates. 

Claimant attorney Robert Grey of Grey & Grey in Farmingdale said he did not see any need for the state to recognize attorneys as specialists in workers' compensation since "there's such a limited number of firms who do this work, and that hasn't changed in many years."

Albany defense attorney Peter Walsh said he also didn't think he would endorse the idea of certifying specialists. 

"I just don't know why we would want to do that," he said. "There's certainly no shortage of competent attorneys practicing in New York, on both sides of the bar." 

Walsh reflected that perhaps some law firms "could use it to market themselves," but "I'm not sure it's healthy to have more marketing stuff in the practice of law."

Claimant attorney Cathy Stanton of Pasternack Tilkler Ziegler Walsh Stanton & Roman, however, said she would welcome the idea of certifying lawyers.

"As someone who has practiced in the industry for over 20 years, I feel that I would be better qualified to represent an injured worker in the field of workers' compensation than someone who has minimal or no experience," she said. 

Having a certification program would also allow injured workers "to be better informed as to the choices they have in finding a representative," Stanton opined. 

Illinois

David N. Anderson, the assistant executive director for the Illinois State Bar Association, said Illinois also does not offer certification to attorneys.

"It's been often debated, but our Supreme Court has never chosen to do it," he said.

Michael Rusin, a defense attorney with Rusin, Maciorowski and Friedman in Chicago, said he was grateful for that. 

"The continuing legal education requirement is more than enough effort for me," he said, and having a certification program, "sounds like a whole lot more effort."

Claimant attorney Ivan Rittenberg said he was "open on the matter" of certifying attorneys, but he noted he was "closer to the (exit) door than most" since he is 67 and isn't going to keep practicing forever. 

He observed that "sometimes the new kid on the block sees something that the old guys miss," so someone who has been practicing long enough to sit for an exam and get a certification isn't necessarily going to achieve a better outcome for a client than a newbie. 

"If you're a lawyer, you're a lawyer," he said, and he said he was not sure that there needs to be any further specialization than that. 

 

Published on 08/02/2013 by WorkCompCentral