Demystifying Board Certification for Texas Lawyers

Episode Notes

Transcript

Rocky Dhir:  This podcast is brought to you by LawPay.

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Female:  Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice.  With your host, Rocky Dhir.

Rocky Dhir:  Hi and welcome to the State Bar of Texas Podcast.  One of the most common questions I get when I tell someone I’m a lawyer is, what kind of lawyer are you?  My usual response, not a very good one.  So please don’t start telling me about your problem that you want fixed for free.  Okay?  I’m not bitter.  I’m good.  Really.  I am.  Seriously.  Okay, let’s just do this.  All right.

So, getting aside, what do you do when people ask what area of law you practice?  The answer, like all things in law, is never simple.  You can have a practice focus, but can you say you’re a specialist in a particular area unless you are, “board certified”?  What exactly does board certification mean?  Why might it be important to be board certified?  What if you are just certifiably bored?  Since 2016, Leo Figueroa has served as the executive director of the Texas Board of Legal Specialization, TBLS for short.

Before that, Leo practiced law for 32 years in San Antonio.  And in case you’re wondering, yes, he is board certified in both civil trial law and personal injury trial law.  So, he’s not only the executive director of TBLS, he’s also a member.  We’re lucky to have Leo with us today to talk about the TBLS board certification and what it means.  So, Leo, welcome to the podcast.

Leo Figueroa:  I appreciate it, Rocky, good to be with you this morning.

Rocky Dhir:  Absolutely.  So, let’s start with the very basics.  All right.  So, what is the Texas Board of Legal Specialization?  What exactly is it and what does it do?

Leo Figueroa:  TBLS was established by the Supreme Court of Texas at the request of the State Bar of Texas back in 1974, and our mission is directed by the Supreme Court is to promote the availability, accessibility and quality of the services of attorneys to the public in particular areas of the law and to raise the standards of the legal profession.  And we certify lawyers in 25 specialty areas and paralegals in eight specialty areas.  With both of them, we’re looking for their substantial, relevant experience in select areas of law and whether or not they’ve completed the requisite number of CLE hours in the specialty areas and then passed a rigorous certification exam.

Rocky Dhir:  For a lawyer who may be practices in a particular area, what’s the benefit of getting board certified?  I mean, what you just described honestly to a lazy person like me is like, wow, that’s a lot of work.  Why would I want to do it?  What would be your case scenario for wanting to get board certified?

Leo Figueroa:  Board certification matters for a number of reasons.  First, and I think most importantly, it’s an independent and objective public validation of your experience, knowledge, and expertise in your specialty area.  In addition, it distinguishes you from other attorneys who practice in the same area of law.  It instills client confidence in your abilities and respect from your peers.  It encourages also attorney referrals, since many lawyers, including for their own protection, prefer to refer matters outside of their area of expertise to attorneys who are board certified in a particular area of law.  And it’s also a valuable marketing and professional networking tool.  The TBLS website tbls.org, for example, provides potential clients and referring attorneys an easy way to identify a board-certified attorney in a specific area of law in a particular geographic area.  And moreover, being board certified enhances your ability to relocate, change jobs, law firms, or even open your own law practice.

Rocky Dhir:  Let’s talk about this issue of how it affects clients, because I’m trying to think of the typical non-lawyer who walks into a lawyer’s office or is looking for help in a particular area.  Do non-lawyers really understand what board certification means?  And I guess how does the TBLS make it clear to the public that there’s a difference between a board-certified lawyer in a particular practice area and a non-board-certified practitioner?

Leo Figueroa:  A couple of things, and the studies that I’ve seen haven’t been done here in Texas, but they’ve been done in other States.

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And those studies have shown that members of the public when shown two attorneys for possible hiring of those attorneys.  The overwhelming majority of those people in those studies chose the board-certified attorney.  There’s something about just the language of being board certified that instills confidence in potential clients.  The thing that I always liken it to, although there are certainly differences, if you need to have your knee replaced, you’re going to go to a board-certified orthopedic surgeon.  They hear the concept of board certification often times in the medical context, and I think that is one of the things that entices clients to go to a board-certified attorney.

But the other thing is, as I indicated at the beginning, board certification is an independent and objective validation of an attorney’s ability in a specific area.  So, it’s not a popularity contest.  It’s not just the attorney touting their own bona fides regarding their experience.  TBLS is an independent, objective measure of whether someone has the requisite degree of experience, knowledge, skill, respect and knowledge of the law.  And we provide attorneys with that information to be able to market that independent validation of their expertise.

Rocky Dhir:  Well, let’s talk for a moment about maybe what exactly is involved.  You alluded to it earlier.  You said there’s some CLE’s.  There’s an exam.  What are the CLE requirements?  What is the exam like, and how does one cheat on the exam?  I’m kidding.  But no, really tell us a little bit about those specific requirements.

Leo Figueroa:  Well, there are, as you might expect, having 25 different specialty areas for attorneys.  The requirements vary according to the specialty area.  However, there are certain general requirements that cover all of the specialty areas.  The first, obviously is that the attorney has substantial, relevant experience in the specialty area for the requisite period of time in most cases and most specialty areas that is having that minimum substantial involvement percentage in the specific area of law in the three years immediately preceding application.  They also have to have 60 hours of CLE in the specialty area immediately in the three years immediately preceding the application.

Rocky Dhir:  60 hours.  So that goes beyond your minimum requirements for —

Leo Figueroa:  Under the state bar rules you’ve got to have 15hours of CLE each year but it doesn’t have to be in any particular area.

Rocky Dhir:  Right.  But if you want to do this then you have to get more than just the 15, you’d have to get if you’re going to do it over three-year period it’s at least 20 hours along with your ethics and everything else.  This is a significant CLE commitment.

Leo Figueroa:  It is, but I can tell you from experience it is well worth it because if you are practicing in a particular area you want to know as much as you can about the relevant case law, statutory law changes, so on and so forth that can help you navigate cases or matters in that specialty area all to the benefit of your client.  And when you think about it, the State Bar offers CLE programs advanced CLE in a variety of these specialty areas whether you’re talking about advanced criminal law, advanced personal injury and trial law, advanced civil law, advanced estate planning and probate and the list goes on.  The other thing I would mention is that once certified, lawyers are certified for five years and then they have to apply for recertification and during that five-year period they’re required to have 100 hours of CLE in that specialty area over that five-year period.

Rocky Dhir:  Does that include teaching it or is that only as a student?

Leo Figueroa:  It can include teaching and providing presentations at State Bar CLE courses.  It can also include teaching at a law school.  So, there’s a number of things it just has to be something that shows their expertise and knowledge and studying in that particular field of law.

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Rocky Dhir:  So, we talked about the CLE to the certain extent.  Let’s talk about this exam, this testing, because I thought the bar exam was the last test I’d ever have to take.  But now you’re telling me if I want to get board certified, there’s a test involved.  Tell us about that.

Leo Figueroa:  There is and it’s a rigorous test.  And perhaps the best way to talk about that is the exam.  And it’s a six-hour exam, three hours in the morning, three hours in the afternoon.  The three-hour exam in the morning consists of three essays.  The afternoon is 100 multiple choice questions.  We have in each of the 25 specialty areas, board certified attorneys in the specialty area that draft the exam.  So, they draft the essays.  They draft multiple choice questions.  And those exam Commission members grade the essays, grade them anonymously.  They don’t know whose essay they’re grading.

Rocky Dhir:  Thank goodness.

Leo Figueroa:  And the multiple-choice questions, as you might expect, are computer graded.  And we provide exam specifications to those that are approved to sit for the exam.  That gives them a framework of the topics that very well may be covered on the exam.  And it helps examinees study for the exam as well.

Rocky Dhir:  So, it’s a six-hour exam, three hours in the morning, three hours in the afternoon.  So, the one question you didn’t answer, though, about the exam is who do I bill for the time of taking the exam?  I’m kidding.  All right.  So, one thing that I’ve always wanted to know about and I think it can be a little perplexing is does a lawyer have to be board certified in order to say that he or she is, “specialized” in a particular area, or must you be board certified?  There are some language requirements.  But before you answer that, let’s go to a quick commercial break.  We’re going to hear from our sponsors.  And when we come back, Leo is going to give us the answer to this question.  We’ll be right back.

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And we’re back.  We’re back with Leo Figueroa, the executive director of the Texas Board of Legal Specialization.  And the question on the table is, does a lawyer have to be board certified in order to say that he or she “specializes” in a particular area of law?  So, Leo, you had a couple of minutes to think on that answer.  What’s the story with that?

Leo Figueroa:  Rocky, this is covered in rules 7.1 and 7.2 of the Disciplinary Rules of Professional Conduct.  And basically, what that says is, number one, lawyers, whatever they do in terms of communicating their practice and advertising that practice has to be truthful.  And there can’t be anything fault in that communication.  Secondly, a lawyer, if you’ve got a law license, you can practice in whatever field you want to, and they’re free to do that.  They don’t have to be board certified.  Thirdly, in order, a lawyer cannot say that they are board certified or that they are a member of an organization that the name of, which implies that they have special expertise unless they’re board certified by TBLS or by an organization accredited by TBLS.  All that being said, the disciplinary rules that I just mentioned, a lawyer is certainly free to say I concentrate my practice in this particular area, criminal law.  I devote 100% of my time to criminal law.  I’m a great lawyer in criminal law.  They can say all of those things, but they can’t say that they’re board certified or a member of an organization, as I indicated, that the name of which implies that they have special expertise.

Rocky Dhir:  Right.  Okay.  So, you can specialize.  You don’t have to be board certified, nor to specialize, but you can’t say you’re board certified unless you’re actually board certified.  Is that kind of the long and short of it, or am I missing?

Leo Figueroa:  No, that’s correct.

Rocky Dhir:  So, let’s talk about you mentioned before.  Is it 25 areas of specialization?

Leo Figueroa:  Correct.

Rocky Dhir:  Okay.  I didn’t know that many.  I thought it was maybe 10 or 12, but there’s 25.  Are there particular areas that — well, I guess that kind of brings up two questions.  One is, are there areas that are the most common areas of board certification that you’ve come across, the ones that those who are board certified tend to apply to the most?

Leo Figueroa:  That’s a good question.  And what I would say about that, Rocky, is this the specialty areas with the largest number of board-certified attorneys is personal injury trial law.

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We’ve got approximately 1400 certificates.  Next, in terms of numbers would be family law with approximately 870 board certified certificates, criminal law with 836, civil trial law with 828, and real estate law with 808, estate planning and probate with 695.  Looking at our certification applications this year, we have a total of 552 applications for certification.  And the top six specialty areas with the most applications this year are family law at 60, criminal law 56 applicants, child welfare law with 56 applicants, civil appellate law with 45 applicants, estate planning and probate law with 45 applicants, and real estate law with 41 applicants.

Rocky Dhir:  Are there some areas of board certification that you think are kind of surprising that people don’t know about that they should maybe pay more attention to?  Because some of the ones you’ve just mentioned I’ve heard of before, but with 25 of them, I imagine there are probably some areas that most lawyers don’t even know exist as candidates for board certification.

Leo Figueroa:  Yeah.  I mean, we’ve got some for example, health law is one.  Juvenile law is another.

Rocky Dhir:  I’m pretty juvenile in all things I use.  So, I might be able to be on the committee for that one.

Leo Figueroa:  Yeah.  And the best way, if anybody considering becoming board certified is to go to our website, tbls.org, and it lists all of the 25 specialty areas as well as the requirements and standards that an applicant has to meet in order to get board certified in any one of those 25 specialty areas.

Rocky Dhir:  What about new areas of specialty?  Is there talk about expanding beyond the 25?  And if so, how do you go about deciding what are going to be some new areas of board certification?

Leo Figueroa:  That’s a good question.  And I think from a historical perspective and putting this in context, as I indicated earlier, we were established by the supreme court in 1974, and in 1975, we had our first three specialty areas, which were criminal law, family law, and labor and employment law.  And from that, we’ve grown to today having 25.  I would mention in since 2016, we’ve added four specialty areas, construction law, child welfare law, property owner’s association law, and most recently legislative and campaign law.  And I anticipate right now we’ve got the possibility of having aviation law as a new specialty that’s currently pending for decision by the Texas Supreme court, and we very well may have insurance law submitted to the supreme court.  And I anticipate that will be submitted to the Supreme Court this year as well.  And those two very well may be offered as new specialty areas for applicants to submit applications next year in 2023.

And finally, I would mention that there are a number of other potential specialty areas that I anticipate will be submitted.  Applications have to be submitted to TBLS for possible creation and recognition of new specialty areas.  And I anticipate we’re going to get a couple of those submitted to us this year.

Rocky Dhir:  How do you go about applying for a new certification area?  Do people just come to you and say, Leo, here’s what I got, and they hand you an envelope with an idea in it, or how does that happen?

Leo Figueroa:  No.  And basically, the way that works, you have to have100 attorneys submit an application, sign onto an application, and it’s an application that we provide to them.  They have to request that, and they have to provide certain specific information to us.  And when they do that, they also have to I mean, it’s a fairly rigorous application.  They have to draft some proposed standards, and they submit that to us.  And then we work with them on honing those standards to get them in as good a format as possible.  And then that gets submitted to the TBLS board.  We’ve got a 12-member board of directors, and then they make the decision whether or not that new specialty area should go forward.  And the first step in that process is it’s submitted for public comment.  And after receiving those public comments, it goes back to the TBLS board, and the board decides whether any revisions to the proposed standards and requirements should be made at that point.

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They also decide whether it’s a viable liable and something we should go forward with, and then it gets submitted to the Texas Supreme Court for consideration and approval.  So, it’s not no way a done deal.  I mean, the Texas Supreme Court has the final say on the proposed standards and whether it should be adopted or not.

Rocky Dhir:  The last I counted, Texas has roughly just a little north of 100,000 attorneys.  How many of those attorneys are actually board certified?

Leo Figueroa:  Approximately, it fluctuates.  I think it’s probably 7200 or so that holds 8400 certificates.  The difference in those numbers is the fact that a number of our board-certified attorneys hold more than one certificate of special competence.  They may have one in civil trial law and one in personal injury trial law.

Rocky Dhir:  You also mentioned earlier that paralegals there’s board certification for paralegals as well.  How many areas of specialty do you have for them?  And about how many paralegals do we have that hold certificates in that category?

Leo Figueroa:  We have eight specialty areas for paralegals.  It’s not as extensive as the one for attorneys.  And in terms of numbers, the numbers are a lot less.  I would say we probably have about 340 or 350 certified paralegals.  And the difference, of course, is with respect to attorneys, there clients ordinarily when they’re retaining counsel, they’re going for the attorney and not the paralegal.  But I can tell you that having board certified paralegals is a tremendous help and assistance not only for the attorney involved.  So not only do you have the attorney that has independent verification of their expertise in a particular area, but their paralegal does as well.  And that instills a lot of confidence in a potential client as well.

And with respect to paralegals, I would also say the fact that they’re board certified, that enhances their ability, should they need to change jobs, should they need to relocate.  Obviously, if an attorney, let’s say a family law attorney is looking to hire paralegal, if he’s got a potential candidate that’s board certified in family law by the TBLS, that particular candidate is going to go to the top of the list.

Rocky Dhir:  Right.  Well, let’s talk a little bit about you and your journey to getting here.  So, what kind of law did you practice?  I’m going back to the question everybody asked me.  What kind of lawyer were you before you became executive director of TBLS?

Leo Figueroa:  I practiced civil trial and personal injury trial law.

Rocky Dhir:   So, on the plaintiff side?

Leo Figueroa:  On both sides, actually, I started out on the defense side at a big law firm in San Antonio that’s no longer in existence, Matthews and Branston, and I was there for 10 years.  I represented a number of self-insured clients with high self-insured retentions.  So, I didn’t do a lot of insurance defense work and handled a variety of cases, whether dealing with products liability cases represented a bunch of railroads, Federal Employee Liability Act claim, grade crossing accidents, and other civil trial matters that didn’t involve personal injury at all.  Thankfully, I got my board certifications back in the dark ages in 1993, and I was able to do that because the number of trials required for civil trial, especially in personal injury.  That was back when you didn’t have mediation.

Rocky Dhir:  Sure.

Leo Figueroa:  You didn’t have mandatory mediation in arbitration was not something that was widely utilized.  And we went to trial all the time because cases didn’t settle.  And unless you were in trial or after a verdict was rendered.  And then at some point after that, I decided, like Paul on the road to Damascus, I had an epiphany and said, you know what?  I want to strike out on my own and do plaintiffs work.  In 2003, that’s when I decided to do plaintiffs work, and I did that from 2003 until 2016.

Rocky Dhir:  So, now that brings us to the most obvious question.  Why would you leave all that and become executive director of TBLS?  What motivated you to make that move?

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Leo Figueroa:  I decided after practicing law for almost 33 years to take on a new and different challenge and one which I could give back to the profession and most importantly, to the TBLS board certification program.  I can tell you I’ve enjoyed immensely working with all of the board certified attorneys in our 25 specialty areas, all the board certified attorneys in our advisory commissions, exam commissions, and our board certified members that I speak to all the time regarding any number of matters involving board certification.  And that’s really my motivation.

Rocky Dhir:  As time goes on, do you feel like more and more attorneys are opting for board certification, or do you think it’s kind of been the same, or is that interest waning to some degree?

Leo Figueroa:  No.  When you look at the number of new specialty areas that we’ve added within the last six years, I think it’s increasing, and a lot of that has to do with the specialty areas involved.  I think as I mentioned earlier, regarding the number of applications we have this year, there are certain specialty areas that continue to have significant numbers of applicants’ family law, criminal law, estate planning and probate law, and then child welfare law that came on board in 2018.  That’s always at the top.  So, there was that interest.  And as I mentioned, the fact that we continue to get new applications for recognition of new specialty areas, aviation law, as I mentioned earlier in insurance law and others that are in the pike.  So, I think the interest and the excitement is there, and that continues to grow.

The one I guess downside it would be called that would be when you look at the average age of board-certified attorneys because you got to be out a number of years before you can even apply.  I know in my case; I had been a lawyer for 10 years before I applied and took my test.  And a lot depends on the specialty area.  You do have attrition that happens in the process.  To give you an example of one area that doesn’t have very many applicants is workers’ compensation.  As you probably know, the legislature back, I think in 1989 radically revised the workers’ compensation law in the State of Texas.  And as a result of that, the many thousands of lawyers that practiced in that area just fell off and very, very few lawyers.

Rocky Dhir:  Absolutely.  Well, Leo, unfortunately, we are at that time where we’ve reached the end, but this has been a fascinating discussion.  So Leo Figueroa, executive director of the TBLS, the Texas Board of Legal Specialization, thank you so much for taking the time to join us and for explaining board certification, what it means.  And hopefully for some of you young lawyers and you law students out there, you’ll tune in and you’ll take this very seriously.  So, Leo, thank you again.

Leo Figueroa:  Rocky. I’ve enjoyed it.  Thank you so much.

Rocky Dhir:  Absolutely.  And of course, I want to thank you, the listener, for tuning in and encourage you to stay safe and continue to be well.  If you like what you heard today, please rate and review us in Apple podcasts, Google podcasts or your favorite podcast app.  Until next time, remember life’s a journey, folks.  I’m Rocky Dhir.  Signing Off.

Female:  If you’d like more information about today’s show, please visit legaltalknetwork.com.  Go to texasbar.com/podcast, subscribe via Apple podcast and RSS.  Find both the State Bar of Texas and Legal Talk Network on Twitter, Facebook and LinkedIn or download the free app from Legal Talk Network in Google Play and iTunes.  The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by the State Bar of Texas, Legal Talk Network or their respective officers, directors, employees, agents, representatives, shareholders or subsidiaries.  None of the content should be considered legal advice.  As always, consult a lawyer.