Regulations for Certifying Organizations

These regulations express the standard procedures of the Tennessee Commission on Continuing Legal Education and Specialization (hereinafter "the Commission"). For compelling reasons, the Commission may suspend or alter any part of these regulations in particular matters.

Definitions

Commission: The Tennessee Commission on Continuing Legal Education and Specialization

Rule: The Rule for Mandatory Continuing Legal Education, Rule 21 of the Supreme Court of Tennessee

 

Section 10 Regulations

10.1 Policy Statement

10.1.01 This Section establishes standards by which the Tennessee Commission on Continuing Legal Education and Specialization will accredit specialty certification programs for lawyers in particular fields of law. The standards require that an accredited organization demonstrate that lawyers certified by it possess an enhanced level of skill and expertise as well as substantial involvement in the specialty area of certification, and that accredited organizations foster professional development. The Standards are designed to enable the Commission to evaluate thoroughly the objectives, standards and procedures of Applicant Organizations and to facilitate public access to appropriate legal services.

 

10.2 Definitions

10.2.01 As used in this Section:

1. "Applicant Organization" means a certifying organization which applies to the Tennessee Commission on Continuing Legal Education and Specialization for accreditation or re-accreditation under these standards.
   
2. "Commission" means the Tennessee Commission on Continuing Legal Education and Specialization.
   
3. "Certifying Organization" means any organization which certifies or intends to certify lawyers as specialists.
   
4. "Standards" means this section of the Commission's Regulations.

10.3 Authority

10.3.01 The authority to grant and withdraw accreditation and to grant re-accreditation is vested in the Commission.

10.4 Requirements For Accreditation of Certifying Organizations

In order to obtain accreditation by the Commission for a specialty certification program, an Applicant Organization must meet the requirements of Section 10.06 of Rule 21 of the Supreme Court of Tennessee and either obtain American Bar Association accreditation or demonstrate that the program operates in accordance with the following standards:

10.4.01 Purpose of Organization The Applicant Organization must demonstrate that the organization is dedicated to the identification of lawyers who possess an enhanced level of skill and expertise in the area of law or practice for which specialist certification is being issued, and to the development and improvement of the professional competence of lawyers.

10.4.02 Organizational Capabilities The Applicant Organization must demonstrate that it possesses the organization and financial resources to carry out its certification program on a continuing basis, and that key personnel have by experience, education and professional background the ability to direct and carry out such programs in a manner consistent with these Standards.

Any program designed to certify lawyers as specialists is expected to have a continuing responsibility to those it certifies to maintain the integrity and the value of the specialty designation. An Applicant Organization seeking accreditation must establish that it possesses and will continue to maintain the governance and organizational structures, a reliable source of adequate financial resources, and the established administrative processes needed to carry out a certification program in an unbiased, professional and ethically responsible manner on a continuing basis. The primary criteria which will be used in determining organization capabilities are:

1. A history of adequate financing during the three (3) years preceding the filing of the application. If the Applicant Organization is newly formed, this criteria will be applied to a parent or sponsoring organization, or to individual founders, if no founding organization is involved;
   
2. the existence of a budget and financial plan for three (3) years following a grant of accreditation should it be made;
   
3. the presence of persons retained by or on the governing board, evaluation committees and staff of the organization who are qualified by experience, education and background to carry out the program of certification operated by the Applicant Organization, including persons with a background in evaluating the validity and reliability of examinations, as well as experience practitioners in the areas of law in which the organization conducts certification programs;
   
4. management, administrative and business practices which allow the Applicant Organization to operate its certification program effectively and provide efficient service to lawyers who submit applications for certification. The processes and procedures used in the certification process should include safeguards to ensure unbiased consideration of lawyers seeking certification; and
   
5. existence of a handbook, guide or manual which outlines the standards, policies, procedures, guides for self-study, and application procedures.

10.4.03 Decision Makers A majority of the body within an Applicant Organization reviewing applications for certification of lawyers as specialists in a particular area of law shall consist of lawyers who have substantial involvement in the specialty area. For the purpose of this criterion, a person is deemed to meet the "substantial involvement" requirement if he or she;

1. Is a specialist certified in the area of law by the Commission or by an organization accredited by the Commission or by the American Bar Association.
   
2. Meets the qualification set out in Section 10.4.06(A) of the Standards.

10.4.04 Uniform Applicability of Certification Requirements and Nondiscrimination

1. The Applicant Organization's requirements for certifying lawyers shall not be arbitrary and shall be clearly understood and easily applied. The organization may only certify those lawyers who have demonstrably met each standard. The requirements shall be uniform in all jurisdictions in which the Applicant Organization certifies lawyers, except to the extent state or local law or regulation imposes a higher requirement. The Applicant Organization's documents and records submitted in conjunction with their application for accreditation will be examined to ensure that the requirements for granting certification are clearly stated and that any lawyer who applies who meets such requirements is granted certification.
   
2. Membership in any organization or completion of educational programs offered by any specific organization shall not be required for certification, and the Applicant organization's materials shall not express or imply such a requirement, except that this paragraph shall not apply to requirements relating to the practice of law which are set out in statutes, rules and regulations promulgated by the government of the United States, by the government of any state or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. Where requirements differ because of state or local law or regulation, such differences should be explicitly stated in the materials which describe the certification program.
   
3. Applicant Organizations shall not discriminate against any lawyers seeking certification on the basis of race, religion, gender, sexual orientation, disability, or age, and such nondiscrimination must be indicated in the description of the program. This paragraph does not prohibit an Applicant from imposing reasonable experience requirements on lawyers seeking certification or re-certification. Experience requirements for lawyers seeking certification or re-certification which may indirectly have an effect on a particular age group must be reasonable.

10.4.05 Definition and Number of Specialties An Applicant Organization shall specifically define the specialty area or areas in which it proposes to certify lawyers as specialists.

1. Each specialty area in which certification is offered must be an area in which significant numbers of lawyers regularly practice. The Applicant Organization must provide evidence that the specialty is one in which significant numbers of lawyers regularly practice. Such evidence may include surveys, court statistics or legal directories. The Applicant Organization is responsible for gathering and citing such statistics to support its claim. Specialty areas shall be named and described in terms which are understandable to the potential users of such legal services, and in terms which will not lead to confusion with other specialty areas. The input of the Commission and other entities and the definitions of specialty adopted by the American Bar Association Standing Committee on Specialization and published in "Model Standards For Specialty Areas" may be used as guides in determining whether the Applicant Organization's definition of a given specialty meets the Standards. Extensive review of whether a particular specialty definition complies with the requirements of the Standards may result in a delay of a decision on an application.
   
2. An Applicant Organization may seek accreditation to certify lawyers in more than one specialty area, but in such event, the organization shall be evaluated separately with respect to each specialty program.
   
3. An Applicant Organization shall propose to the Commission a specific definition of each specialty area in which it seeks accreditation to certify lawyers as specialists. The Commission shall approve, modify or reject any proposed definition and shall promptly notify the Applicant of its actions.

10.4.06 Certification Requirements An Applicant Organization shall require for certification of lawyers as specialists, as a minimum, the following:

1. Substantial Involvement Substantial involvement in the specialty area throughout the three-year period immediately preceding application to the certifying organization. Substantial involvement is measured by the type and number of cases or matters handled and the amount of time spent practicing in the specialty area, and requires that the time spent in practicing the specialty be no less than twenty-five percent (25%) of the total practice of a lawyer engaged in a normal full-time practice.
   
2. Peer Review A minimum of five references, a majority of which are from attorneys or judges who are knowledgeable regarding the practice area and are familiar with the competence of the lawyers, and none of which are from persons related to or engaged in legal practice with the lawyer.
   
   1. Type of References The certification requirements shall allow lawyers seeking certification to list persons to whom reference forms could be sent, but shall also provide that the Applicant Organization send out all reference forms. In addition, the organization may seek and consider reference forms from persons of the organization's own choosing.
      
   2. Content of Reference Forms The reference forms shall inquire into the respondent's areas of practice, the respondent's familiarity with both the specialty area and with the lawyer seeking certification, and the length of time that the respondent has been practicing law and has known the applicant. The form shall inquire about the qualifications of the lawyer seeking certification in various aspects of the practice and, as appropriate, the lawyer's dealings with judges and opposing counsel.
    
3. Written Examination An evaluation of the lawyer's knowledge of the substantive and procedural law in the specialty area, determined by written examination of suitable length and complexity. The examination shall include professional responsibility and ethics as it relates to the particular specialty.
   
4. Educational Experience A minimum of 36 hours of participation in continuing legal education in the specialty area in the three-year period preceding the lawyer's application for certification. This requirement may be met through any of the following means:
   
   1. Attending programs of continuing legal education or courses offered by approved law schools in the specialty area;
      
   2. Teaching courses or seminars in the specialty area;
      
   3. Participating as a panelist, speaker or workshop leader at educational or professional conferences covering the specialty area; or
      
   4. Writing published books or articles concerning the specialty area.
    
5. The Applicant Organization should require a lawyer seeking certification to provide evidence showing that the programs, courses, seminars, conference and publications listed above contain sufficient intellectual and practical content so to increase a lawyer's knowledge and ability in the specialty area. State-approved continuing legal education programs in the specialty area will be deemed to have met this criterion.
   
6. Good Standing A lawyer seeking certification is admitted to practice and is a member in good standing in one or more states or territories of the United States or the District of Columbia. The application form should request the lawyer to list all current admissions to the bar, along with registration numbers where applicable.

 

10.4.07 Impartial Review The Applicant Organization shall maintain a formal policy providing lawyers who are denied certification an opportunity for review by an impartial decision maker. The Applicant must provide evidence that it maintains and publishes such a policy. The policy must provide a lawyer seeking certification the opportunity to present his or her case to an impartial decision maker in the event of denial of eligibility or denial of certification.

10.4.08 Requirements for Re-Certification The period of certification shall be set by the Applicant Organization, but shall be no longer than five years, after which time lawyers who have been certified must apply for re-certification. Re-certification shall require similar evidence of competence as that required for initial certification in substantial involvement, peer review, education experience and evidence of good standing.

10.4.09 Revocation of Certification The Applicant Organization shall maintain a procedure for revocation of certification. The procedures shall require a certified lawyer to report his or her disbarment or suspension from the practice of law in any jurisdiction to the certifying organization.

10.5 Accreditation Period and Re-Accreditation

10.5.01 Initial accreditation by the Commission of any Applicant Organization shall be granted for three years.

10.5.02 To retain Commission accreditation, a certifying organization shall be required to apply for re-accreditation prior to the end of the third year of its initial accreditation period and every three years thereafter. The organization shall be granted re-accreditation upon a showing of continued compliance with these Standards.

10.6 Revocation of Accreditation

10.6.01 A certifying organization's accreditation by the Commission may be revoked upon a determination that the organization has ceased to exist, or has ceased to operate its certification program in compliance with these Standards.