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March 1, 2011
U.S. 11th Circuit upholds constitutionality of certification peer review

By Mark D. Killian
Managing Editor

“If every attorney who practices in an area is certified in it, then no one is anybody in that field,” the U.S. 11th Circuit Court of Appeals said in upholding the peer review component of The Florida Bar’s certification rules.

Acting in January in case number 10-11974, a three-judge panel of the U.S. 11th Circuit Court of Appeals affirmed a lower court holding that Jacksonville attorney Carolyn Zisser had been denied no “constitutionally protected property or liberty interest” when her bid for recertification was denied based on unsatisfactory peer reviews.

“This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers,” the court said in its January ruling. “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.”

Bar President Mayanne Downs said the ruling is a “strong endorsement that peer review is critical” to the certification process and that the decision marks the first time confidential peer review has been sustained nationally.

Zisser was initially certified as a marital and family law specialist in 1985. She successfully applied for recertification in 1990 and 1995, but her application for recertification in 2000 was denied on the basis of unsatisfactory peer reviews.

Zisser alleged that the denial of her recertification solely on the basis of anonymous peer review amounted to a violation of due process under both the Florida and United States Constitutions because it denied her a meaningful opportunity to confront and impeach witnesses and to challenge the peer review findings.

After exhausting her internal Bar appeals, Zisser sought review in the Florida Supreme Court, which entered a one-sentence order denying her petition for review on September 25, 2008.

In Zisser’s federal challenge she specifically contended the Bar’s rules allowing an applicant to be denied certification or recertification solely on the basis of undisclosed peer review comments deny procedural due process because they do not provide an applicant with sufficient notice as to the content of the statements or the identities of the persons who made them. As a result, an applicant cannot meaningfully challenge an adverse finding based on the peer review process.

But, the court said in order for Zisser to prevail she needed to prove three elements: a deprivation of constitutionally-protected liberty or property interest; state action; and constitutionally inadequate process.

The claim fails, the court said, because neither certification nor recertification in a field of legal specialization amounts to a cognizable property or liberty interest.

For her argument that a lawyer seeking certification or recertification has a constitutionally protected property interest, the court said Zisser relied primarily on Shahawy v. Harrison, 875 F.2d 1529 (11th Cir. 1989), “but her reliance is misplaced.”

“Shahawy involved a physician’s challenge to a hospital’s revocation of his staff privileges,” the court said. “We held, consistent with our ‘well-established precedent,’ that ‘a physician’s medical staff privileges’ are a property interest protected by the Fourteenth Amendment. . . . As the district court in this case correctly reasoned, however, Shahawy and similar cases do not fit these circumstances because ‘unlike hospital staff privileges, which provide physicians with the ability to employ their skills at a hospital, board certification provides no such benefit and is irrelevant to an attorney’s ability to practice or appear before any court.’”

The court noted lawyers who are not certified as specialists in a field can practice in any court in Florida where a certified attorney can practice.

In Zisser’s case, neither The Florida Bar rules, nor any other part of that state’s law, create a “legitimate claim of entitlement,” or a “mutually explicit understanding.”

The court said Florida Bar certification is contingent on a number of factors, including favorable results from a confidential peer review.

“That part of the process is no secret,” the court said, noting it is set out in the rules themselves and every applicant for certification acknowledges the confidential peer review component in a signed waiver.

Zisser also contended that certification or recertification in a legal practice field is a constitutionally protected liberty interest because a lawyer whose application is denied suffers damage to her reputation in the legal community.

But the court said a 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 said, adding there is nothing in the record to suggest that The Florida Bar publishes the names of attorneys who have been denied certification or recertification, or the reasons why.

The fact that Zisser’s application was denied “apparently became public only because she appealed that denial and filed this lawsuit,” the court said.

“To ensure that certification achieves its purpose, the Bar has established a body of rules and procedures, including a confidential peer review process, so that an attorney certified in an area of practice truly is ‘somebody’ in that field,” the court said. “Without such rules and procedures, the process, the decisions it produces, and the resulting recognition would not amount to much.”

[Revised: 07-29-2014]