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The post below was published on Friday, January 21st, 2011 at 12:15 PM.

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Eleventh Circuit: Board Certified People Are Somebodies

My fellow board certified specialists should be very interested in this decision from the Eleventh Circuit.

It opens with the following:

This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.” The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that field. The easier it is to be certified, the less that certification means.

You may recognize the inimitable writing of Judge Carnes.

In the case, a Florida attorney applied for board certification in marital and family law. The certification committee recommended that the Board of Legal Specialization and Education deny the application due to adverse peer review. The attorney challenged the recommendation, but the board accepted it. After a series of additional challenges, all unsuccessful, the attorney sought review in the Florida Supreme Court, which denied her petition.

The attorney then filed a federal lawsuit against The Florida Bar. Her claims included a due process challenge to the bar’s rules requiring confidentiality in the peer review process. She argued that the bar’s use of undisclosed peer review comments failed to inform her of the information adverse to her and prevented her from meaningfully challenging an adverse decision.

The Eleventh Circuit framed the issue as whether the attorney had a constitutionally protected liberty or property interest in board certification. The court’s answer was no.

The court suggested that the answer might be different with respect to property interests if board certification were required to practice law.

With respect to the attorney’s claim of a liberty interest, the court explained:

The lack of certification in a field of specialty simply means that an attorney is, like the vast majority of attorneys, not certified in that field. The failure to convey a badge of distinction is not stigmatizing.

The court also observed that the bar does not publish information about who is denied certification or why. Notably, the court decided to publish its decision.

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