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200 Florida Certification Plan
Standing Policies of the Board of Legal Specialization and Education
2.02 AREAS OF CERTIFICATION
(a) Supreme Court Approval. Each area of certification must be approved by the Supreme Court of Florida.
(b) Approved Areas. The areas of certification include: tax (7/1/82); civil trial (7/1/82); marital and family law (7/1/84); wills, trusts and estates (7/1/85), criminal law (trial and appellate) (7/1/86); real estate (7/1/86); workers' compensation (7/1/87); appellate practice (7/1/93); health law (9/1/94); immigration and nationality law (9/1/94); admiralty and maritime (7/20/95); aviation (7/20/95); business litigation (7/20/95); and city, county and local government (7/20/95); elder law (7/17/97); international law (12/18/97); antitrust and trade regulation (3/23/00); labor and employment law (3/23/00); construction law (5/20/04); intellectual property law (8/1/06); and, state and federal government and administrative practice (8/1/06.)
(c) Amendments to Area Standards. Each certification committee, in accordance with the Rules Regulating The Florida Bar, has the responsibility to recommend to the BLSE criteria for certification including, but not limited to, amendments to area standards. Prior to referral to the BLSE, any amendment(s) to area standards shall first be provided to the relevant bar section, division, and substantive law committee with an invitation to comment. A 45-day response time shall be suggested; however, reasonable accommodations to extend such period shall be permitted to ensure a substantive review. Bar section, division, and substantive law committee input shall not be construed as a means to veto proposed changes, but merely to allow all those who have expertise in a given field to offer substantive comment to ensure the continued maintenance of reasonable and uniform standards concerning education, experience, proficiency, and professionalism.
(d) Area Evaluation. The BLSE, along with each area certification committee, shall aspire to reach a 75-member threshold in each certification area upon completion of the third application cycle. An area that does not demonstrate this level of participation shall be subject to evaluation by BLSE. Such evaluation shall include, but not be limited to, consideration of:
(1) the benefit of the area's existence for both the public and the profession;
(2) existing requirements to ensure they reflect practice standards common to the practice area and are attainable;
(3) exam statistics and the relative difficulty of passage in comparison to overall program average;
(4) the extent to which efforts have been made to stimulate participation;
(5) costs associated with administration; and
(6) the level of interest among those certified in certification committee service.
(e) Evaluation Results. The BLSE shall prepare a written report within 3 months of completing its evaluation, detailing its findings and recommendations for submission to the board of governors.
2.03 NEW AREA REQUESTS
(a) Presentation. Any request for a new area shall be presented to the BLSE. As the BLSE directs, staff will:
(1) poll the appropriate sections and committees of the bar for their input;
(2) contact other state bars or national certification organizations offering the same or similar specialization area; and/or
(3) notify the membership of the request by publication in 2 consecutive issues of The Florida Bar News. The membership shall be given 30 days from the date of second publication in which to respond.
(b) Consideration. Guidelines for consideration of new areas include:
(1) that a certification area be as broad as possible and beneficial to the public;
(2) that the selection of a certification area not be based upon its individual budgetary impact, but as a part of the whole certification program;
(3) that the minimum number of members projected to attain certification within the first 3 years of implementation be no less than 75; and
(4) that procedures to set up new areas of certification be initiated by:
(A) petition of 25 or more members of The Florida Bar;
(B) petition of a recognized section of The Florida Bar; or
(C) petition of a substantive law standing committee of The Florida Bar.
(c) Preparation of Standards. The BLSE shall review all information received. If there are sufficient facts to support establishment of the area, the BLSE shall direct staff to assist the requestor in the preparation of standards. Upon completion, the standards will be reviewed by the BLSE before submission to the program evaluation committee and the board of governors for approval pursuant to rule 6-3.1(a), rules governing the Florida certification plan.
2.04 CERTIFICATION FEES
(a) Filing Fee. A fee of $250 must accompany each application submitted for certification or recertification. Rejection or withdrawal of an application will not entitle an applicant to a refund of the fee or any part thereof.
(b) Examination/Certification Fee. A fee of $150 shall be due and payable after an applicant has been notified of exam eligibility or before an applicant who otherwise qualifies receives a certificate. The payment of such fee is a prerequisite to the taking of an examination. A refund of the examination fee may only be obtained if written notification of cancellation is received by the legal specialization and education office at least 48 hours in advance of the examination date.
(c) Annual Fee. An annual fee of $150 per area certified shall be assessed against each board certified member. Payment must be postmarked no later than 45 days from the invoice date or be subject to a $50 late fee. If payment is not received within an additional 30 days, staff shall send written notice by registered or certified mail to the last official bar address to advise that a recommendation to revoke certification will be forwarded to the board of legal specialization and education pursuant to rule 6-3.8, Rules Regulating The Florida Bar.
(d) Reapplication Fee. A nonrefundable fee of $150 must accompany each reapplication submitted.
(e) Challenge/Petition Filing Fee. A nonrefundable fee of $125 must accompany the filing of a grade review petition.
(f) Lapse Reinstatement Fee. A nonrefundable fee of $150 must accompany a request to reinstate certification.
(g) Recertification File Extension Fee. A nonrefundable fee of $125 must accompany an application for recertification file extension.
(h) Emeritus Application Fee. A nonrefundable fee of $100 must accompany an application for emeritus specialist status.
(i) Board Certified Judicial Fellow Annual Fee. An annual fee of $50 per area certified shall be assessed against each member classified as a board certified judicial fellow. Payment must be postmarked no later than 45 days from the invoice date or be subject to a $25 late fee. If payment is not received within an additional 30 days, staff shall send written notice by registered or certified mail to the last official bar address to advise that a recommendation to revoke board certified judicial fellow status will be forwarded to the board of legal specialization and education pursuant to rule 6-3.8, Rules Regulating The Florida Bar.
(j) Appeal Fee. A nonrefundable fee of $500 must accompany the filing of an appeal.
2.05 APPLICATIONS FOR CERTIFICATION
(a) Form and Content. Applications shall be submitted on forms approved by the BLSE. Each question shall be answered or shown as "not applicable." All applications and the information contained therein shall be sworn to by the applicant as being true and complete. Only completed applications will be substantively reviewed and the accuracy of the information verified.
(b) Completion of Requirements. An applicant shall complete all requirements prior to filing an application; provided, however:
(1) the examination shall be completed after application filing;
(2) certain continuing legal education requirements may be completed after application filing, if satisfactory proof of completion of the educational program is furnished to the BLSE prior to the application filing deadline or to an extended deadline as approved by BLSE; and
(3) The 5-year practice of law requirement may be completed after application filing, but no later than November 30 of the year in which application is made.
(c) Supplemental Information. To ascertain entitlement to certification, the BLSE or committee may require an applicant to provide information in addition to that called for on the application form, including requiring an applicant to submit to a personal interview before the BLSE, the committee, any of its individual members, or any authorized representative.
(d) Application Revisions or Corrections. Applicants shall be advised of their continuing obligation to notify the LSE department should there be any change to any response provided within the application after filing. Incomplete applications will be returned.
(e) Timeliness of Filing. The application filing periods shall be determined by the BLSE. Unless an extension is granted by the BLSE, all applications must be postmarked by midnight of the last day of the application filing period to be considered for that annual class. Filing periods have been established as follows:
July 1 — August 31
Aviation Law
Appellate Practice
Civil Trial
Marital & Family
Admiralty & Maritime
Tax
Immigration & Nationality
International Law
Elder Law
Labor & Employment Law
September 1 — October 31
Criminal Trial/Appellate
Workers' Compensation
Health Law
Wills, Trusts & Estates
Real Estate
Business Litigation
City, County & Local Government
Antitrust & Trade Regulation
Construction Law
Intellectual Property Law
State and Federal Government and Administrative Practice
(f) Recertification File Extension. A 1-time 3-month recertification file extension may be authorized by the BLSE upon application and payment of the appropriate fee. If granted, such extension shall commence on the applicant's current certification expiration date. The applicant must agree to complete all outstanding requirements for recertification before the end of the 3-month extension and confirm understanding that if the requirements are not met, no further extensions will be permitted and the fee may not be refunded.
(g) Processing. Staff shall conduct a preliminary review of each application prior to committee review.
(1) An applicant with a deficient application will be notified by staff in writing prior to committee review to correct and/or update any omissions.
(2) Only complete applications shall be substantively reviewed.
(3) Omissions or inaccuracies in the completion and submission of application forms may be grounds for denial.
(h) Withdrawal of Application. An application for certification or recertification may be withdrawn in writing by the applicant at any time prior to final BLSE action.
(i) Application Retention. Applications will be retained for a period of 1 year from the date of certification or recertification, at which time they will be disposed of in a confidential manner.
2.06 PROFESSIONAL ETHICS AND COMPETENCE
(a) Required Information. Each applicant shall be required to submit information concerning:
(1) all instances of discipline; and
(2) all disciplinary complaints currently pending.
(b) Staff Review. Staff shall review each applicant's disciplinary record prior to committee review. All unresolved disciplinary complaints shall be verified by staff counsel.
(c) Committee Review. Committee members shall review all instances of discipline and any unresolved complaints, and investigate all details of each such complaint. Staff counsel shall be consulted, available files reviewed, and a hearing before the committee scheduled if necessary.2.07 MALPRACTICE
Each applicant shall be required to submit information concerning any malpractice claims made against the applicant (or against the applicant's firm that relate to the applicant's negligence) that resulted in a lawsuit filed, settlement paid, or appointment of an attorney by the malpractice carrier to defend the applicant or the applicant's firm.
2.08 PEER REVIEW
Each applicant shall submit names of lawyers and judges who can attest to the applicant's special competence and substantial involvement in the practice of law in which certification is sought, as well as the applicant's character, ethics, and reputation for professionalism, in accordance with the area standards and rule 6-3.5(c)(6).
(a) The BLSE or certification committee may solicit statements from additional lawyers and/or judges.
(b) Statements of reference concerning applicants shall be submitted on forms furnished by the BLSE.
(c) No member of the board of governors ("BoG") or officer of The Florida Bar, appeals committee (AC), BLSE, or certification committee shall submit a reference for an applicant. Members of the Supreme Court of Florida shall also be excluded from the solicitation of statements of reference.2.09 SUBSTANTIAL INVOLVEMENT
Substantial involvement is defined within each area's standards.
2.10 APPROVED CONTINUING LEGAL EDUCATION (CLE)
(a) Credit Approval. Unless otherwise specified below, the evaluation and accreditation of CLE activities for board certification is the responsibility of the certification committees and shall be set forth in committee policies.
(b) Grade Review Panel Service. Participation on a grade review panel shall entitle a member to certification credit equal to the amount of time devoted to review of the examination question(s), model answer(s), and petition(s), provided the maximum amount does not exceed 5 credit hours per petition.
(c) Exam Question and Model Answer Drafting. Preparation of certification exam questions and corresponding model answers shall entitle a member to certification credit equal to the amount of time devoted to such activity provided the maximum amount does not exceed 15 credit hours per year. If such activity occurs in connection with service on a certification committee, the certification committee chair shall determine appropriate credit for each member in an amount not to exceed 15 credit hours per year. A maximum of 5 credit hours in ethics may be allocated as part of the 15 credit hours if the content of the question and model answer otherwise complies with the standards for ethics credit approval set forth elsewhere in these policies.
(d) Proof of Completion. Applicants shall certify attendance and completion of all programs they list toward meeting the educational requirements on the application.
(e) Overlap of Hours. Attorneys who certify more than 1 area may overlap credit hours provided the hours are approved for the areas to which they are applied.
2.11 EXAM PREPARATION AND ADMINISTRATION
(a) Exam Preparation and/or Review Courses. Certification committee members and BLSE members may attend or participate in any seminar intended as a preparatory or review course for a certification examination although they may not give instruction regarding, or otherwise comment on, any substantive legal matters relating to the examination. Notwithstanding the foregoing, certification committee members and BLSE members may participate in a preparatory review course for the purpose of discussing, in general terms, the following aspects of the certification process:
(1) How examination questions are developed;
(2) How examinations are generally administered;
(3) How examinations are generally graded;
(4) Examinees’ appeal rights and the procedures for appellate review; and
(5) Available resources to study for examinations, such as available bibliographies. Additionally, in connection with the foregoing discussion of the examination process, the certification committee may (but is not required to) provide 1 or more example questions used in past examinations, together with 1 or more model answers to the question. Any such question and answers used may not be used in any subsequent examination.
The sponsor of any such preparatory review course shall also:
(1) advise applicants and attendees in the course brochure and in any materials distributed to attendees that such course is developed and conducted without any endorsement by the BLSE and/or certification committees; and
(2) include a disclaimer in the course brochure and in any materials distributed to applicants and attendees consisting of substantially the following language:
This course is intended to provide a comprehensive review of the subject matter, and it may help candidates prepare for a certification examination. Those who have developed the program, however, have no information regarding the examination content other than the information contained in the exam specifications which are also provided to each examinee. Candidates for certification who take this course should not assume that the course material will cover all topics on the examination or that the examination will cover all topics in the course material.
(b) Exam Dates. Eligible applicants shall successfully complete the exam as follows:
(1) for an August 31 application filing deadline, the exam shall be taken the following March;
(2) for an October 31 application filing deadline, the exam shall be taken the following May;
(3) subsequent examination opportunities shall be subject to the limitations described elsewhere in these policies.
(c) Location. Each area examination shall be conducted annually in such place(s) and on such date(s) as determined by the committees and the BLSE.
(d) Examinee Identification. If requested by the committee conducting an examination, staff is authorized to verify the identity of each examinee by requiring photographic identification upon receipt of the exam materials.
(e) Eligibility. Only applicants deemed by the certification committee to have satisfied the application requirements shall be eligible for examination.
(1) An exam eligible applicant shall have 2 consecutive opportunities to attain a passing grade on the examination. The first opportunity shall be during the cycle in which the application was filed. The second opportunity shall be subject to approval by the committee after review of an abbreviated application accompanied by the reapplication fee. The full exam fee must be paid for each exam taken.
(2) An applicant who does not obtain a passing score on the exam after 2 consecutive attempts is ineligible to reapply the year immediately following the second failure.
(3) The BLSE chair or vice-chair may permit an "ineligible" applicant to sit for an exam in instances in which:
(A) the committee requires additional time to investigate the applicant's qualifications; or
(B) a disciplinary case against the applicant is pending; or
(C) due to time constraints, the BLSE has not had an opportunity to consider the committee's recommendation.
(4) If an “ineligible" applicant is granted permission to take an exam:
(A) the exam fee must be paid in advance and may not be refunded;
(B) the exam results may be released to the applicant but a passing grade may not be used as a basis to justify application approval;
(C) if an applicant is unsuccessful on the exam, the exam may not be reviewed, nor may a petition for grade review be filed, unless the applicant is deemed to be an "eligible" applicant having satisfied all other requirements for certification;
(D) if an applicant is successful on the exam, in lieu of challenging the application denial, the applicant may re-file in the next application filing cycle and, if approved, will not be subject to re-examination; and
(E) the applicant must acknowledge, in written form, understanding of and agreement with the above conditions prior to taking the exam.
(f) Applicant Misconduct. Failure to follow staff or administrator instructions pertaining to the examination or its administration shall disqualify an applicant’s examination and application.
(g) Exam Retention. Certification examination booklets and/or bluebooks will be retained for a period of 1 year from the date of certification, at which time they will be disposed of in a confidential manner.
(h) Confidentiality. To ensure and preserve the confidentiality of the certification testing process, all certification examinations, past, current, or proposed, and the model answers to such tests, will not be made available for inspection, copying, or use for any reason, except in those limited circumstances otherwise permitted by BLSE policies consistent with rule 6-3.12, Rules Regulating The Florida Bar.
2.12 GRADING, REVIEW, AND PETITION PROCESS
(a) Grading. The committees shall oversee the grading of all examinations. Automatic re-grading of all failing papers shall be conducted by each committee within the range specified by that committee before the results are announced.
(1) Applicants who are successful on the exam shall not be entitled to their grades or to review their exams.
(2) "Exam eligible" applicants who are unsuccessful may:
(A) receive their grades upon written request; and
(B) proceed with an exam review in preparation for a petition for grade review.
(b) Exam Review.
(1) If requested, exam review shall occur within 30 days of notification of the exam results. The review shall take place at the location(s) and on such date(s) as prescribed by BLSE.
(2) At the exam review, the examinee and counsel, if present, shall be required to sign and submit an acknowledgement of non-disclosure and confidentiality. Exam review shall consist of permitting the examinee and counsel to inspect the following materials: a copy of the examination, the model answers, if any, and the examinee's answer/test papers. None of said materials may be copied or retained by the examinee or examinee's counsel.
(3) Upon completion of the exam review, the examinee may, within 30 days, file a petition for grade review with the Legal Specialization and Education ("LSE") Director. (The petitioning examinee shall hereinafter be referred to as "petitioner.")
(4) Petitioner may be accompanied by counsel throughout the review process provided said counsel agrees to maintain confidentiality of all documents related to the exam. If counsel is not board certified in the exam area, counsel must further agree to forego applying for certification in the applicable area for 1 year following involvement in the exam review process.
(5) Members of the BLSE, committees, and persons who submitted exam questions for the exam under review may not serve as counsel for a petitioner for a period of 1 year following involvement in the exam review process.
(c) Petition for Grade Review.
(1) The examinee shall submit an original and 4 copies of a written petition detailing the claimed grading error(s) to the LSE Director. A nonrefundable filing fee of $125 must accompany the petition.
(2) The petition shall state in detail the areas which, in the opinion of the examinee, have been incorrectly graded. The petitioner may provide an additional supporting authority deemed appropriate to substantiate the claim of incorrect grading. The petition shall not include any reference to the petitioner’s score relative to the pass/fail line or any reference to passing scores on other portions of the examination, if applicable. The petition also shall not include any reference to the petitioner’s identity.
(3) A copy of the petition shall be provided to the relevant area certification committee chair and vice chair within 10 days of filing to inform the committee officers of the issue(s) raised. If either officer determines the committee erred in either the exam grading or model answer construction, the committee shall reconsider its grading as to the exam petitioned and, if applicable, all other failing exams that have the potential to receive a passing score upon reconsideration. Such review shall be completed within 30 days and shall toll the time for the review panel to complete its review. If the committee determines it necessary to provide any written commentary in response to the petition, a copy of same shall be provided to both the petitioner and the grade review panel.
(d) Grade Review Panel.
(1) The BLSE chair shall appoint a review panel (RP) consisting of 3 ad hoc appointees certified in the relevant area and a BLSE member to serve as chair. The BLSE member shall oversee and coordinate the activity of the RP, but shall not vote on the decision. No member of the RP shall have had prior involvement with that examination either as a committee member, drafter, or grader.
(2) Within 60 days of receipt of the review petition, the petition and relevant materials shall be forwarded to the RP. Within 60 days of the RP's receipt of the petition, the RP shall convene and issue a written opinion on the petition. The time as to distribution of the materials to the RP or issuance of an opinion by the RP may be extended for good cause as determined by the chair of the BLSE. If an extension is granted, the petitioner shall be notified by return receipt delivery to the member's record bar address. In no event may the time for issuance of an opinion by the RP be extended beyond the registration date for the next year's exam.
(3) The responsibility of each RP shall be to review the substantive basis for each petition filed. All information submitted to said panel shall be in "blind form," so as to delete all information that would identify the examinee and any reference to the examinee’s overall score relative to the pass/fail line. It shall be the responsibility of the legal specialization and education ("LSE") director to ensure the grade review is accomplished anonymously and in accordance with these policies.
(4) An RP’s decision shall close the grade review process.
(e) Appeal. Upon completion of the grade review, either the petitioner or the BLSE may appeal to the AC, pursuant to the appeal procedures set out in the 400 series of the BLSE policies. Such appeal shall be limited to the procedural issues set forth in this review and petition process and to clear and unequivocal allegations of fraud, discrimination, arbitrary or capricious action.
(f) Ex Parte Contacts. Because the grade review process is of a quasi-judicial nature and must occur in an atmosphere free of bias or pressure, ex parte contacts by anyone to members of the RP, the BLSE, AC, or BoG are prohibited.
2.13 APPLICANT REVIEW PROCESS FOR CERTIFICATION OR RECERTIFICATION
(a) Area Committee Review and Investigation. The area committee shall review the complete application and conduct such further investigation as the committee may deem necessary and appropriate to determine whether the applicant meets the requirements for certification or recertification, which may include, but not be limited to, the review of an application filed for certification in an area other than that overseen by the committee. If an applicant for certification is related to or is a firm partner or associate of a committee member, or, if in the opinion of the area committee, a fair judgment cannot be rendered by a committee member, that applicant’s file shall be reviewed by other members of the committee or, if requested by the committee, assigned to another area committee by the BLSE chair. If an applicant for recertification is a committee member of the area in which recertification is sought, the BLSE chair shall assign that applicant’s recertification application to another area committee for investigation and consideration. The area standards and policies for which recertification is sought shall govern during the assigned committee’s investigation and consideration. Consistent with rule 6-3.12, Rules Regulating The Florida Bar, any materials obtained by the committee consisting of or containing comments by members of the bench and/or bar shall be treated as confidential.
(b) Recommendation of Approval. If a preponderance of the evidence establishes that the applicant meets the requirements for certification or recertification, the area committee will recommend approval of the applicant to the board of legal specialization and education (BLSE).
(c) Notice that Recommendation of Denial is Under Consideration. If a preponderance of the evidence does not establish that the applicant meets the requirements for certification or recertification, the area committee will provide the applicant written notice that a recommendation of denial is under consideration and offer the applicant an opportunity to provide additional supporting documentation. Such notice shall state as the basis of concern whichever of the following is or are applicable:
(1) insufficient CLE credits;
(2) insufficient and/or unsatisfactory peer review;
(3) insufficient trials and/or other task requirements;
(4) insufficient substantial involvement;
(5) unsatisfactory disciplinary and/or malpractice record; or
(6) action or conduct determined to be inconsistent with the special knowledge, skills, proficiency, character, ethics and reputation for professionalism required for board certification.
(d) Additional Supporting Documentation from Applicant. If an applicant wishes to file additional supporting documentation to address the committee’s basis of concern in the Notice that Recommendation of Denial is Under Consideration, such filing shall include an original and 10 copies and shall be submitted within 10 days of receipt of the notice. Such filing shall be limited to no more than 25 pages unless extenuating circumstances are presented and additional pages, in an amount not to exceed 50, are authorized by the certification committee chair.
(1) Supporting documentation submitted or solicited by the applicant that consists of or contains peer review assessment will not be accepted. Peer review may only be obtained by the committee or BLSE. Consistent with rule 6-3.12, Rules Regulating The Florida Bar, all peer review statements by members of the bench and/or bar shall be maintained as confidential.
(2) Names of individuals suggested for the purpose of additional peer review may be provided to the committee or BLSE by the applicant. Applicants may advise reviewers of the submission of their names, but should not offer an opinion as to the content of the reference statement or evaluation. Consistent with rule 6-3.12, Rules Regulating The Florida Bar, all peer review statements by members of the bench and/or bar shall be maintained as confidential.
(e) Consideration and Recommendation. The area committee shall consider the additional supporting documentation provided by the applicant, if any, and, if the area committee determines from such documentation that further investigation is warranted or appropriate, shall conduct further investigation as to the applicant’s qualifications, which may include, but not be limited to, the solicitation of additional confidential statements of reference. Upon review of all documentation, the committee shall forward to the BLSE the record, as defined elsewhere in these policies, and the area committee’s written recommendation. Notice of the committee’s recommendation shall also be provided to the applicant. A recommendation of denial shall state as the basis whichever of the following is or are applicable:
(1) insufficient CLE credits;
(2) insufficient and/or unsatisfactory peer review;
(3) insufficient trials and/or other task requirements;
(4) insufficient substantial involvement;
(5) unsatisfactory disciplinary and/or malpractice record; or
(6) action or conduct determined to be inconsistent with the special knowledge, skills, proficiency, character, ethics and reputation for professionalism required for board certification.
(f) Record. The area committee is responsible for assembling the record in connection with the applicant’s application, which shall consist only of the following:
(1) the application;
(2) all materials obtained by the area committee during its review, investigation, and consideration process; and,
(3) such additional supporting documentation as the applicant may submit, or the committee may obtain, as described and permitted elsewhere under these policies.
(g) BLSE Review of the Committee Recommendation. The BLSE shall review the record and recommendation of the area committee to determine whether the record supports the recommendation. Such recommendation shall be considered at the next regularly scheduled BLSE meeting which is set to occur not less than 20 days from the date of the recommendation. The BLSE shall issue a decision to grant or deny certification or recertification, or may remand the application to the committee for further investigation or documentation as the BLSE may direct. The BLSE may delegate initial review of the record and committee’s recommendation to a BLSE sub-committee which shall make a report to the full BLSE for appropriate action.
(h) Remand. If the application is remanded by the BLSE, the area committee will have 60 days in which to conduct additional investigation. After its investigation, the area committee shall return the application and record to the BLSE with the committee’s recommendation for approval or denial of certification or recertification. Materials or information obtained during the investigation shall be included in the record.
(i) Applicant Notification. The BLSE shall give notice of its decision, by mail, to the applicant and the committee chair not more than 20 days after the BLSE meeting at which the decision is made.
(j) Request for Appearance. Not more than 10 days after receipt of notice of the BLSE’s decision, the applicant or committee chair, on behalf of the committee, may file with the LSE director, a request for appearance before the BLSE. No additional information or supporting documentation may be filed by the applicant or the committee chair. If a request for appearance is not timely filed, the applicant may proceed under policy 2.13(o).
(k) Notice of Appearance. Upon receipt of the request for appearance, the LSE director, on behalf of the BLSE, shall issue a notice of appearance before the BLSE. The notice shall set forth the date, time, and location of the next regularly scheduled BLSE meeting at which the applicant and the committee chair, or designated representative, may appear in person or by teleconference. The notice shall be given not less than 20 days prior to the BLSE meeting.
(l) Appearance Before BLSE. The BLSE chair shall afford the applicant and committee representative the opportunity for an oral presentation. A maximum time of 20 minutes shall be allowed for the purpose of both appearances before the BLSE. Reference to any materials that are not part of the record as defined elsewhere in these policies may not be considered. The applicant may have a court reporter present during the applicant’s appearance at the applicant’s expense.
(m) Notice of Decision. The BLSE shall give notice, by mail, to the applicant and committee chair of its decision within 20 days of the BLSE meeting at which the appearance occurs.
(n) Finality of Decision. The BLSE decision shall close the application and peer review evaluation process.
(o) Appeal. Further review of the BLSE decision by the applicant shall be in accordance with the procedures set out in the 400 series of the BLSE policies. Such appeal shall be limited to review of whether the area committee and BLSE afforded to the applicant the procedural rights as provided elsewhere in these policies and by pertinent Rules Regulating The Florida Bar. Such appeal and review shall not extend to or include further application or peer review evaluation, or review or consideration of confidential peer review responses.
(p) Ex Parte Contacts. Because the review process is of a quasi-judicial nature and must occur in an atmosphere free of bias or pressure, ex parte contacts by anyone with members of the area committee, BLSE, AC, or BOG are prohibited.
2.14 ANNUAL CYCLE
(a) Completion of Requirements. An applicant must demonstrate compliance with all components for certification within an annual cycle beginning with the application filing date and ending with the date of certification, unless otherwise provided in these policies.
(b) Certification Dates. For applications filed by August 31, the date of certification shall be June 1; for applications filed by October 31, the date of certification shall be August 1.
2.15 REAPPLICATION FOR CERTIFICATION
An "approved" applicant who either declines to take or fails the exam may only file as a reapplicant during the next annual filing cycle.
2.16 REVOCATION
(a) Authority. Certification granted under chapter 6 of the Rules Regulating The Florida Bar may be revoked by the BLSE.
(b) Automatic Revocation. The following shall cause automatic revocation of board certification:
(1) An order imposing any discipline that terminates membership in The Florida Bar;
(2) An order imposing a suspension of the privilege of practicing law under circumstances that require an order of the court to resume the practice of law; and
(3) A decision to revoke or deny any other certification(s) held by the member on the basis of peer review determined to be inconsistent with the character, ethics, and reputation for professionalism required of a board certified member.
Upon occurrence of any of the above, the member's certification shall be immediately revoked and the member's name removed from any listings of board certified members. The board certified member shall be provided notice of revocation by mailing appropriate documents to the board certified member's record bar address, by United States certified mail, return receipt requested.
(c) Discretionary Revocation. The following shall cause consideration of revocation:
(1) A disciplinary suspension that does not require an order of the court to resume the practice of law;
(2) A disciplinary public reprimand;
(3) A disciplinary admonishment for minor misconduct;
(4) Delinquent membership as set forth in rule 1-3.6 of the Rules Regulating The Florida Bar; and
(5) Any reason set forth in rule 6-3.8(d) (1)-(5) of the Rules Regulating The Florida Bar.
(d) Procedures for Discretionary Revocation.
(1) Notice. The board certified member shall be provided notice that the BLSE is considering revocation by mailing appropriate documents to the board certified member's record bar address, by United States certified mail, return receipt requested. The notice shall specify the date on which BLSE consideration will occur and shall provide at least 20 days advance notice.
(2) Response Required. A board certified member shall respond to the notice, in writing, within 10 days of receipt. The filing shall be limited to no more than 25 pages unless extenuating circumstances are presented and additional pages, in an amount not to exceed 50, are authorized by the BLSE chair. Failure of a board certified member to timely respond, in writing, shall be considered by the BLSE as evidence that the board certified member has waived all rights to respond and consents to the determination of BLSE.
(3) Request for Appearance. A board certified member shall be afforded the opportunity to appear before BLSE to address the revocation consideration, if requested in a timely filed response required in subdivision (d)(2). The appearance shall occur on the BLSE meeting date provided in the notice of consideration. No additional information or supporting documentation may be filed. Failure of a board certified member to timely request an appearance shall be considered by the BLSE as evidence that the board certified member has waived all rights to appear and consents to the determination of BLSE.
(4) Notice of Appearance. Upon receipt of the request for appearance, the LSE director, on behalf of the BLSE, shall issue a notice of appearance to confirm the date, time, and location of the meeting. The appearance may be in person or by teleconference. The board certified member may be accompanied by counsel and may have a court reporter present, at the applicant's expense.
(5) Notice of Decision. The BLSE shall give notice of its decision by United States certified mail, return receipt requested, within 10 days of consideration of the board certified member's response and appearance, if held. The decision shall be final.
(6) Appeal. Further review of the BLSE decision shall be in accordance with the procedures set out in the 400 series of the BLSE policies. The appeal shall be limited to review of whether the BLSE afforded to the board certified member the procedural rights provided in these policies and by pertinent Rules Regulating The Florida Bar.
(e) Interim Suspension of Certification Pending Investigation. The BLSE may, at its discretion, suspend the certificate of any member who is under investigation for an offense related to professional integrity. The board certified member shall be provided notice of certification suspension by mailing appropriate documents to the board certified member's record bar address, by United States certified mail, return receipt requested. Upon occurrence of certification suspension, the member's name shall be removed from any listings of board certified members.
2.17 RESERVED FOR FUTURE USE
2.18 RESERVED FOR FUTURE USE2.19 LAPSE OF CERTIFICATION
(a) Authority. In accordance with rule 6-3.6(a), Rules Regulating The Florida Bar, no certificate shall last for a period longer than 5 years. A lapse of certification may occur for reasons including, but not limited to, a member's failure to
(1) file an application for recertification by the published deadline;
(2) file an application for recertification by the extension deadline, if an extension has been granted by BLSE; or,
(3) respond as requested to supply additional information for application completion, providing confirmation of receipt of such request can be demonstrated by return receipt delivery to the member's record bar address.
(b) Lapse Notification and Reinstatement. If a member allows a certificate to lapse, staff shall immediately send notification to the member by return receipt delivery to the member's record bar address. The notice shall advise that, if requested by the member within 3 days of receipt of lapse notification and upon payment of a lapse reinstatement fee, certification may be temporarily reinstated for a period not to exceed 10 days to allow the member to submit the required application and/or supplemental documentation.
(c) Lapse Removal. If the completed application and/or supplemental documentation as requested are received within the 10-day period, the lapse status shall be removed and the application routinely processed as elsewhere provided in these policies.
(d) Final Lapse Notification. If the completed application and/or supplemental documentation as requested are not received within the 10-day period, no further reinstatement opportunities shall be permitted and the member's certification shall permanently lapse. The member shall be so notified, by return receipt delivery to the member's record bar address, and advised that any misleading indication as to the member's certification status may result in professional discipline. Upon lapse of certification, the member's name shall be removed from any listings of board certified members.
2.01 ADMINISTRATION
(a) BLSE. The BLSE bears ultimate responsibility in the certification of applicants. Its involvement, however, should be no more extensive than necessary to ensure minimum standards of the plan are met and there is uniformity among the committees.
(b) Certification Committees. A committee shall be appointed for each certification area approved by the Supreme Court of Florida. The duties of each committee shall include but not be limited to:
(1) recommending the issuance, renewal, or denial of certificates;
(2) reviewing applications;
(3) establishing testing procedures;
(4) preparing, overseeing, administering, and grading the examination; and
(5) performing other duties deemed appropriate.
(c) Staff. The BLSE and each certification committee shall receive staff support to carry out the administrative responsibilities set forth in the Rules Regulating The Florida Bar, chapter 6. Staff support shall be managed in accordance with the internal procedures of The Florida Bar. Among the responsibilities of the LSE director is to balance the effective administration of the program with practical fiscal considerations, including, but not limited to, whether in-person staff support at a meeting of a certification committee is necessary or may be accomplished by alternative conferencing methods.
2.02 AREAS OF CERTIFICATION
(a) Supreme Court Approval. Each area of certification must be approved by the Supreme Court of Florida.
(b) Approved Areas. The areas of certification include: tax (7/1/82); civil trial (7/1/82); marital and family law (7/1/84); wills, trusts and estates (7/1/85), criminal law (trial and appellate) (7/1/86); real estate (7/1/86); workers' compensation (7/1/87); appellate practice (7/1/93); health law (9/1/94); immigration and nationality law (9/1/94); admiralty and maritime (7/20/95); aviation (7/20/95); business litigation (7/20/95); and city, county and local government (7/20/95); elder law (7/17/97); international law (12/18/97); antitrust and trade regulation (3/23/00); labor and employment law (3/23/00); construction law (5/20/04); intellectual property law (8/1/06); and, state and federal government and administrative practice (8/1/06.)
(c) Amendments to Area Standards. Each certification committee, in accordance with the Rules Regulating The Florida Bar, has the responsibility to recommend to the BLSE criteria for certification including, but not limited to, amendments to area standards. Prior to referral to the BLSE, any amendment(s) to area standards shall first be provided to the relevant bar section, division, and substantive law committee with an invitation to comment. A 45-day response time shall be suggested; however, reasonable accommodations to extend such period shall be permitted to ensure a substantive review. Bar section, division, and substantive law committee input shall not be construed as a means to veto proposed changes, but merely to allow all those who have expertise in a given field to offer substantive comment to ensure the continued maintenance of reasonable and uniform standards concerning education, experience, proficiency, and professionalism.
(d) Area Evaluation. The BLSE, along with each area certification committee, shall aspire to reach a 75-member threshold in each certification area upon completion of the third application cycle. An area that does not demonstrate this level of participation shall be subject to evaluation by BLSE. Such evaluation shall include, but not be limited to, consideration of:
(1) the benefit of the area's existence for both the public and the profession;
(2) existing requirements to ensure they reflect practice standards common to the practice area and are attainable;
(3) exam statistics and the relative difficulty of passage in comparison to overall program average;
(4) the extent to which efforts have been made to stimulate participation;
(5) costs associated with administration; and
(6) the level of interest among those certified in certification committee service.
(e) Evaluation Results. The BLSE shall prepare a written report within 3 months of completing its evaluation, detailing its findings and recommendations for submission to the board of governors.
2.03 NEW AREA REQUESTS
(a) Presentation. Any request for a new area shall be presented to the BLSE. As the BLSE directs, staff will:
(1) poll the appropriate sections and committees of the bar for their input;
(2) contact other state bars or national certification organizations offering the same or similar specialization area; and/or
(3) notify the membership of the request by publication in 2 consecutive issues of The Florida Bar News. The membership shall be given 30 days from the date of second publication in which to respond.
(b) Consideration. Guidelines for consideration of new areas include:
(1) that a certification area be as broad as possible and beneficial to the public;
(2) that the selection of a certification area not be based upon its individual budgetary impact, but as a part of the whole certification program;
(3) that the minimum number of members projected to attain certification within the first 3 years of implementation be no less than 75; and
(4) that procedures to set up new areas of certification be initiated by:
(A) petition of 25 or more members of The Florida Bar;
(B) petition of a recognized section of The Florida Bar; or
(C) petition of a substantive law standing committee of The Florida Bar.
(c) Preparation of Standards. The BLSE shall review all information received. If there are sufficient facts to support establishment of the area, the BLSE shall direct staff to assist the requestor in the preparation of standards. Upon completion, the standards will be reviewed by the BLSE before submission to the program evaluation committee and the board of governors for approval pursuant to rule 6-3.1(a), rules governing the Florida certification plan.
2.04 CERTIFICATION FEES
(a) Filing Fee. A fee of $250 must accompany each application submitted for certification or recertification. Rejection or withdrawal of an application will not entitle an applicant to a refund of the fee or any part thereof.
(b) Examination/Certification Fee. A fee of $150 shall be due and payable after an applicant has been notified of exam eligibility or before an applicant who otherwise qualifies receives a certificate. The payment of such fee is a prerequisite to the taking of an examination. A refund of the examination fee may only be obtained if written notification of cancellation is received by the legal specialization and education office at least 48 hours in advance of the examination date.
(c) Annual Fee. An annual fee of $150 per area certified shall be assessed against each board certified member. Payment must be postmarked no later than 45 days from the invoice date or be subject to a $50 late fee. If payment is not received within an additional 30 days, staff shall send written notice by registered or certified mail to the last official bar address to advise that a recommendation to revoke certification will be forwarded to the board of legal specialization and education pursuant to rule 6-3.8, Rules Regulating The Florida Bar.
(d) Reapplication Fee. A nonrefundable fee of $150 must accompany each reapplication submitted.
(e) Challenge/Petition Filing Fee. A nonrefundable fee of $125 must accompany the filing of a grade review petition.
(f) Lapse Reinstatement Fee. A nonrefundable fee of $150 must accompany a request to reinstate certification.
(g) Recertification File Extension Fee. A nonrefundable fee of $125 must accompany an application for recertification file extension.
(h) Emeritus Application Fee. A nonrefundable fee of $100 must accompany an application for emeritus specialist status.
(i) Board Certified Judicial Fellow Annual Fee. An annual fee of $50 per area certified shall be assessed against each member classified as a board certified judicial fellow. Payment must be postmarked no later than 45 days from the invoice date or be subject to a $25 late fee. If payment is not received within an additional 30 days, staff shall send written notice by registered or certified mail to the last official bar address to advise that a recommendation to revoke board certified judicial fellow status will be forwarded to the board of legal specialization and education pursuant to rule 6-3.8, Rules Regulating The Florida Bar.
(j) Appeal Fee. A nonrefundable fee of $500 must accompany the filing of an appeal.
2.05 APPLICATIONS FOR CERTIFICATION
(a) Form and Content. Applications shall be submitted on forms approved by the BLSE. Each question shall be answered or shown as "not applicable." All applications and the information contained therein shall be sworn to by the applicant as being true and complete. Only completed applications will be substantively reviewed and the accuracy of the information verified.
(b) Completion of Requirements. An applicant shall complete all requirements prior to filing an application; provided, however:
(1) the examination shall be completed after application filing;
(2) certain continuing legal education requirements may be completed after application filing, if satisfactory proof of completion of the educational program is furnished to the BLSE prior to the application filing deadline or to an extended deadline as approved by BLSE; and
(3) The 5-year practice of law requirement may be completed after application filing, but no later than November 30 of the year in which application is made.
(c) Supplemental Information. To ascertain entitlement to certification, the BLSE or committee may require an applicant to provide information in addition to that called for on the application form, including requiring an applicant to submit to a personal interview before the BLSE, the committee, any of its individual members, or any authorized representative.
(d) Application Revisions or Corrections. Applicants shall be advised of their continuing obligation to notify the LSE department should there be any change to any response provided within the application after filing. Incomplete applications will be returned.
(e) Timeliness of Filing. The application filing periods shall be determined by the BLSE. Unless an extension is granted by the BLSE, all applications must be postmarked by midnight of the last day of the application filing period to be considered for that annual class. Filing periods have been established as follows:
July 1 — August 31
Aviation Law
Appellate Practice
Civil Trial
Marital & Family
Admiralty & Maritime
Tax
Immigration & Nationality
International Law
Elder Law
Labor & Employment Law
September 1 — October 31
Criminal Trial/Appellate
Workers' Compensation
Health Law
Wills, Trusts & Estates
Real Estate
Business Litigation
City, County & Local Government
Antitrust & Trade Regulation
Construction Law
Intellectual Property Law
State and Federal Government and Administrative Practice
(f) Recertification File Extension. A 1-time 3-month recertification file extension may be authorized by the BLSE upon application and payment of the appropriate fee. If granted, such extension shall commence on the applicant's current certification expiration date. The applicant must agree to complete all outstanding requirements for recertification before the end of the 3-month extension and confirm understanding that if the requirements are not met, no further extensions will be permitted and the fee may not be refunded.
(g) Processing. Staff shall conduct a preliminary review of each application prior to committee review.
(1) An applicant with a deficient application will be notified by staff in writing prior to committee review to correct and/or update any omissions.
(2) Only complete applications shall be substantively reviewed.
(3) Omissions or inaccuracies in the completion and submission of application forms may be grounds for denial.
(h) Withdrawal of Application. An application for certification or recertification may be withdrawn in writing by the applicant at any time prior to final BLSE action.
(i) Application Retention. Applications will be retained for a period of 1 year from the date of certification or recertification, at which time they will be disposed of in a confidential manner.
2.06 PROFESSIONAL ETHICS AND COMPETENCE
(a) Required Information. Each applicant shall be required to submit information concerning:
(1) all instances of discipline; and
(2) all disciplinary complaints currently pending.
(b) Staff Review. Staff shall review each applicant's disciplinary record prior to committee review. All unresolved disciplinary complaints shall be verified by staff counsel.
(c) Committee Review. Committee members shall review all instances of discipline and any unresolved complaints, and investigate all details of each such complaint. Staff counsel shall be consulted, available files reviewed, and a hearing before the committee scheduled if necessary.2.07 MALPRACTICE
Each applicant shall be required to submit information concerning any malpractice claims made against the applicant (or against the applicant's firm that relate to the applicant's negligence) that resulted in a lawsuit filed, settlement paid, or appointment of an attorney by the malpractice carrier to defend the applicant or the applicant's firm.
2.08 PEER REVIEW
Each applicant shall submit names of lawyers and judges who can attest to the applicant's special competence and substantial involvement in the practice of law in which certification is sought, as well as the applicant's character, ethics, and reputation for professionalism, in accordance with the area standards and rule 6-3.5(c)(6).
(a) The BLSE or certification committee may solicit statements from additional lawyers and/or judges.
(b) Statements of reference concerning applicants shall be submitted on forms furnished by the BLSE.
(c) No member of the board of governors ("BoG") or officer of The Florida Bar, appeals committee (AC), BLSE, or certification committee shall submit a reference for an applicant. Members of the Supreme Court of Florida shall also be excluded from the solicitation of statements of reference.2.09 SUBSTANTIAL INVOLVEMENT
Substantial involvement is defined within each area's standards.
2.10 APPROVED CONTINUING LEGAL EDUCATION (CLE)
(a) Credit Approval. Unless otherwise specified below, the evaluation and accreditation of CLE activities for board certification is the responsibility of the certification committees and shall be set forth in committee policies.
(b) Grade Review Panel Service. Participation on a grade review panel shall entitle a member to certification credit equal to the amount of time devoted to review of the examination question(s), model answer(s), and petition(s), provided the maximum amount does not exceed 5 credit hours per petition.
(c) Exam Question and Model Answer Drafting. Preparation of certification exam questions and corresponding model answers shall entitle a member to certification credit equal to the amount of time devoted to such activity provided the maximum amount does not exceed 15 credit hours per year. If such activity occurs in connection with service on a certification committee, the certification committee chair shall determine appropriate credit for each member in an amount not to exceed 15 credit hours per year. A maximum of 5 credit hours in ethics may be allocated as part of the 15 credit hours if the content of the question and model answer otherwise complies with the standards for ethics credit approval set forth elsewhere in these policies.
(d) Proof of Completion. Applicants shall certify attendance and completion of all programs they list toward meeting the educational requirements on the application.
(e) Overlap of Hours. Attorneys who certify more than 1 area may overlap credit hours provided the hours are approved for the areas to which they are applied.
2.11 EXAM PREPARATION AND ADMINISTRATION
(a) Exam Preparation and/or Review Courses. Certification committee members and BLSE members may attend or participate in any seminar intended as a preparatory or review course for a certification examination although they may not give instruction regarding, or otherwise comment on, any substantive legal matters relating to the examination. Notwithstanding the foregoing, certification committee members and BLSE members may participate in a preparatory review course for the purpose of discussing, in general terms, the following aspects of the certification process:
(1) How examination questions are developed;
(2) How examinations are generally administered;
(3) How examinations are generally graded;
(4) Examinees’ appeal rights and the procedures for appellate review; and
(5) Available resources to study for examinations, such as available bibliographies. Additionally, in connection with the foregoing discussion of the examination process, the certification committee may (but is not required to) provide 1 or more example questions used in past examinations, together with 1 or more model answers to the question. Any such question and answers used may not be used in any subsequent examination.
The sponsor of any such preparatory review course shall also:
(1) advise applicants and attendees in the course brochure and in any materials distributed to attendees that such course is developed and conducted without any endorsement by the BLSE and/or certification committees; and
(2) include a disclaimer in the course brochure and in any materials distributed to applicants and attendees consisting of substantially the following language:
This course is intended to provide a comprehensive review of the subject matter, and it may help candidates prepare for a certification examination. Those who have developed the program, however, have no information regarding the examination content other than the information contained in the exam specifications which are also provided to each examinee. Candidates for certification who take this course should not assume that the course material will cover all topics on the examination or that the examination will cover all topics in the course material.
(b) Exam Dates. Eligible applicants shall successfully complete the exam as follows:
(1) for an August 31 application filing deadline, the exam shall be taken the following March;
(2) for an October 31 application filing deadline, the exam shall be taken the following May;
(3) subsequent examination opportunities shall be subject to the limitations described elsewhere in these policies.
(c) Location. Each area examination shall be conducted annually in such place(s) and on such date(s) as determined by the committees and the BLSE.
(d) Examinee Identification. If requested by the committee conducting an examination, staff is authorized to verify the identity of each examinee by requiring photographic identification upon receipt of the exam materials.
(e) Eligibility. Only applicants deemed by the certification committee to have satisfied the application requirements shall be eligible for examination.
(1) An exam eligible applicant shall have 2 consecutive opportunities to attain a passing grade on the examination. The first opportunity shall be during the cycle in which the application was filed. The second opportunity shall be subject to approval by the committee after review of an abbreviated application accompanied by the reapplication fee. The full exam fee must be paid for each exam taken.
(2) An applicant who does not obtain a passing score on the exam after 2 consecutive attempts is ineligible to reapply the year immediately following the second failure.
(3) The BLSE chair or vice-chair may permit an "ineligible" applicant to sit for an exam in instances in which:
(A) the committee requires additional time to investigate the applicant's qualifications; or
(B) a disciplinary case against the applicant is pending; or
(C) due to time constraints, the BLSE has not had an opportunity to consider the committee's recommendation.
(4) If an “ineligible" applicant is granted permission to take an exam:
(A) the exam fee must be paid in advance and may not be refunded;
(B) the exam results may be released to the applicant but a passing grade may not be used as a basis to justify application approval;
(C) if an applicant is unsuccessful on the exam, the exam may not be reviewed, nor may a petition for grade review be filed, unless the applicant is deemed to be an "eligible" applicant having satisfied all other requirements for certification;
(D) if an applicant is successful on the exam, in lieu of challenging the application denial, the applicant may re-file in the next application filing cycle and, if approved, will not be subject to re-examination; and
(E) the applicant must acknowledge, in written form, understanding of and agreement with the above conditions prior to taking the exam.
(f) Applicant Misconduct. Failure to follow staff or administrator instructions pertaining to the examination or its administration shall disqualify an applicant’s examination and application.
(g) Exam Retention. Certification examination booklets and/or bluebooks will be retained for a period of 1 year from the date of certification, at which time they will be disposed of in a confidential manner.
(h) Confidentiality. To ensure and preserve the confidentiality of the certification testing process, all certification examinations, past, current, or proposed, and the model answers to such tests, will not be made available for inspection, copying, or use for any reason, except in those limited circumstances otherwise permitted by BLSE policies consistent with rule 6-3.12, Rules Regulating The Florida Bar.
2.12 GRADING, REVIEW, AND PETITION PROCESS
(a) Grading. The committees shall oversee the grading of all examinations. Automatic re-grading of all failing papers shall be conducted by each committee within the range specified by that committee before the results are announced.
(1) Applicants who are successful on the exam shall not be entitled to their grades or to review their exams.
(2) "Exam eligible" applicants who are unsuccessful may:
(A) receive their grades upon written request; and
(B) proceed with an exam review in preparation for a petition for grade review.
(b) Exam Review.
(1) If requested, exam review shall occur within 30 days of notification of the exam results. The review shall take place at the location(s) and on such date(s) as prescribed by BLSE.
(2) At the exam review, the examinee and counsel, if present, shall be required to sign and submit an acknowledgement of non-disclosure and confidentiality. Exam review shall consist of permitting the examinee and counsel to inspect the following materials: a copy of the examination, the model answers, if any, and the examinee's answer/test papers. None of said materials may be copied or retained by the examinee or examinee's counsel.
(3) Upon completion of the exam review, the examinee may, within 30 days, file a petition for grade review with the Legal Specialization and Education ("LSE") Director. (The petitioning examinee shall hereinafter be referred to as "petitioner.")
(4) Petitioner may be accompanied by counsel throughout the review process provided said counsel agrees to maintain confidentiality of all documents related to the exam. If counsel is not board certified in the exam area, counsel must further agree to forego applying for certification in the applicable area for 1 year following involvement in the exam review process.
(5) Members of the BLSE, committees, and persons who submitted exam questions for the exam under review may not serve as counsel for a petitioner for a period of 1 year following involvement in the exam review process.
(c) Petition for Grade Review.
(1) The examinee shall submit an original and 4 copies of a written petition detailing the claimed grading error(s) to the LSE Director. A nonrefundable filing fee of $125 must accompany the petition.
(2) The petition shall state in detail the areas which, in the opinion of the examinee, have been incorrectly graded. The petitioner may provide an additional supporting authority deemed appropriate to substantiate the claim of incorrect grading. The petition shall not include any reference to the petitioner’s score relative to the pass/fail line or any reference to passing scores on other portions of the examination, if applicable. The petition also shall not include any reference to the petitioner’s identity.
(3) A copy of the petition shall be provided to the relevant area certification committee chair and vice chair within 10 days of filing to inform the committee officers of the issue(s) raised. If either officer determines the committee erred in either the exam grading or model answer construction, the committee shall reconsider its grading as to the exam petitioned and, if applicable, all other failing exams that have the potential to receive a passing score upon reconsideration. Such review shall be completed within 30 days and shall toll the time for the review panel to complete its review. If the committee determines it necessary to provide any written commentary in response to the petition, a copy of same shall be provided to both the petitioner and the grade review panel.
(d) Grade Review Panel.
(1) The BLSE chair shall appoint a review panel (RP) consisting of 3 ad hoc appointees certified in the relevant area and a BLSE member to serve as chair. The BLSE member shall oversee and coordinate the activity of the RP, but shall not vote on the decision. No member of the RP shall have had prior involvement with that examination either as a committee member, drafter, or grader.
(2) Within 60 days of receipt of the review petition, the petition and relevant materials shall be forwarded to the RP. Within 60 days of the RP's receipt of the petition, the RP shall convene and issue a written opinion on the petition. The time as to distribution of the materials to the RP or issuance of an opinion by the RP may be extended for good cause as determined by the chair of the BLSE. If an extension is granted, the petitioner shall be notified by return receipt delivery to the member's record bar address. In no event may the time for issuance of an opinion by the RP be extended beyond the registration date for the next year's exam.
(3) The responsibility of each RP shall be to review the substantive basis for each petition filed. All information submitted to said panel shall be in "blind form," so as to delete all information that would identify the examinee and any reference to the examinee’s overall score relative to the pass/fail line. It shall be the responsibility of the legal specialization and education ("LSE") director to ensure the grade review is accomplished anonymously and in accordance with these policies.
(4) An RP’s decision shall close the grade review process.
(e) Appeal. Upon completion of the grade review, either the petitioner or the BLSE may appeal to the AC, pursuant to the appeal procedures set out in the 400 series of the BLSE policies. Such appeal shall be limited to the procedural issues set forth in this review and petition process and to clear and unequivocal allegations of fraud, discrimination, arbitrary or capricious action.
(f) Ex Parte Contacts. Because the grade review process is of a quasi-judicial nature and must occur in an atmosphere free of bias or pressure, ex parte contacts by anyone to members of the RP, the BLSE, AC, or BoG are prohibited.
2.13 APPLICANT REVIEW PROCESS FOR CERTIFICATION OR RECERTIFICATION
(a) Area Committee Review and Investigation. The area committee shall review the complete application and conduct such further investigation as the committee may deem necessary and appropriate to determine whether the applicant meets the requirements for certification or recertification, which may include, but not be limited to, the review of an application filed for certification in an area other than that overseen by the committee. If an applicant for certification is related to or is a firm partner or associate of a committee member, or, if in the opinion of the area committee, a fair judgment cannot be rendered by a committee member, that applicant’s file shall be reviewed by other members of the committee or, if requested by the committee, assigned to another area committee by the BLSE chair. If an applicant for recertification is a committee member of the area in which recertification is sought, the BLSE chair shall assign that applicant’s recertification application to another area committee for investigation and consideration. The area standards and policies for which recertification is sought shall govern during the assigned committee’s investigation and consideration. Consistent with rule 6-3.12, Rules Regulating The Florida Bar, any materials obtained by the committee consisting of or containing comments by members of the bench and/or bar shall be treated as confidential.
(b) Recommendation of Approval. If a preponderance of the evidence establishes that the applicant meets the requirements for certification or recertification, the area committee will recommend approval of the applicant to the board of legal specialization and education (BLSE).
(c) Notice that Recommendation of Denial is Under Consideration. If a preponderance of the evidence does not establish that the applicant meets the requirements for certification or recertification, the area committee will provide the applicant written notice that a recommendation of denial is under consideration and offer the applicant an opportunity to provide additional supporting documentation. Such notice shall state as the basis of concern whichever of the following is or are applicable:
(1) insufficient CLE credits;
(2) insufficient and/or unsatisfactory peer review;
(3) insufficient trials and/or other task requirements;
(4) insufficient substantial involvement;
(5) unsatisfactory disciplinary and/or malpractice record; or
(6) action or conduct determined to be inconsistent with the special knowledge, skills, proficiency, character, ethics and reputation for professionalism required for board certification.
(d) Additional Supporting Documentation from Applicant. If an applicant wishes to file additional supporting documentation to address the committee’s basis of concern in the Notice that Recommendation of Denial is Under Consideration, such filing shall include an original and 10 copies and shall be submitted within 10 days of receipt of the notice. Such filing shall be limited to no more than 25 pages unless extenuating circumstances are presented and additional pages, in an amount not to exceed 50, are authorized by the certification committee chair.
(1) Supporting documentation submitted or solicited by the applicant that consists of or contains peer review assessment will not be accepted. Peer review may only be obtained by the committee or BLSE. Consistent with rule 6-3.12, Rules Regulating The Florida Bar, all peer review statements by members of the bench and/or bar shall be maintained as confidential.
(2) Names of individuals suggested for the purpose of additional peer review may be provided to the committee or BLSE by the applicant. Applicants may advise reviewers of the submission of their names, but should not offer an opinion as to the content of the reference statement or evaluation. Consistent with rule 6-3.12, Rules Regulating The Florida Bar, all peer review statements by members of the bench and/or bar shall be maintained as confidential.
(e) Consideration and Recommendation. The area committee shall consider the additional supporting documentation provided by the applicant, if any, and, if the area committee determines from such documentation that further investigation is warranted or appropriate, shall conduct further investigation as to the applicant’s qualifications, which may include, but not be limited to, the solicitation of additional confidential statements of reference. Upon review of all documentation, the committee shall forward to the BLSE the record, as defined elsewhere in these policies, and the area committee’s written recommendation. Notice of the committee’s recommendation shall also be provided to the applicant. A recommendation of denial shall state as the basis whichever of the following is or are applicable:
(1) insufficient CLE credits;
(2) insufficient and/or unsatisfactory peer review;
(3) insufficient trials and/or other task requirements;
(4) insufficient substantial involvement;
(5) unsatisfactory disciplinary and/or malpractice record; or
(6) action or conduct determined to be inconsistent with the special knowledge, skills, proficiency, character, ethics and reputation for professionalism required for board certification.
(f) Record. The area committee is responsible for assembling the record in connection with the applicant’s application, which shall consist only of the following:
(1) the application;
(2) all materials obtained by the area committee during its review, investigation, and consideration process; and,
(3) such additional supporting documentation as the applicant may submit, or the committee may obtain, as described and permitted elsewhere under these policies.
(g) BLSE Review of the Committee Recommendation. The BLSE shall review the record and recommendation of the area committee to determine whether the record supports the recommendation. Such recommendation shall be considered at the next regularly scheduled BLSE meeting which is set to occur not less than 20 days from the date of the recommendation. The BLSE shall issue a decision to grant or deny certification or recertification, or may remand the application to the committee for further investigation or documentation as the BLSE may direct. The BLSE may delegate initial review of the record and committee’s recommendation to a BLSE sub-committee which shall make a report to the full BLSE for appropriate action.
(h) Remand. If the application is remanded by the BLSE, the area committee will have 60 days in which to conduct additional investigation. After its investigation, the area committee shall return the application and record to the BLSE with the committee’s recommendation for approval or denial of certification or recertification. Materials or information obtained during the investigation shall be included in the record.
(i) Applicant Notification. The BLSE shall give notice of its decision, by mail, to the applicant and the committee chair not more than 20 days after the BLSE meeting at which the decision is made.
(j) Request for Appearance. Not more than 10 days after receipt of notice of the BLSE’s decision, the applicant or committee chair, on behalf of the committee, may file with the LSE director, a request for appearance before the BLSE. No additional information or supporting documentation may be filed by the applicant or the committee chair. If a request for appearance is not timely filed, the applicant may proceed under policy 2.13(o).
(k) Notice of Appearance. Upon receipt of the request for appearance, the LSE director, on behalf of the BLSE, shall issue a notice of appearance before the BLSE. The notice shall set forth the date, time, and location of the next regularly scheduled BLSE meeting at which the applicant and the committee chair, or designated representative, may appear in person or by teleconference. The notice shall be given not less than 20 days prior to the BLSE meeting.
(l) Appearance Before BLSE. The BLSE chair shall afford the applicant and committee representative the opportunity for an oral presentation. A maximum time of 20 minutes shall be allowed for the purpose of both appearances before the BLSE. Reference to any materials that are not part of the record as defined elsewhere in these policies may not be considered. The applicant may have a court reporter present during the applicant’s appearance at the applicant’s expense.
(m) Notice of Decision. The BLSE shall give notice, by mail, to the applicant and committee chair of its decision within 20 days of the BLSE meeting at which the appearance occurs.
(n) Finality of Decision. The BLSE decision shall close the application and peer review evaluation process.
(o) Appeal. Further review of the BLSE decision by the applicant shall be in accordance with the procedures set out in the 400 series of the BLSE policies. Such appeal shall be limited to review of whether the area committee and BLSE afforded to the applicant the procedural rights as provided elsewhere in these policies and by pertinent Rules Regulating The Florida Bar. Such appeal and review shall not extend to or include further application or peer review evaluation, or review or consideration of confidential peer review responses.
(p) Ex Parte Contacts. Because the review process is of a quasi-judicial nature and must occur in an atmosphere free of bias or pressure, ex parte contacts by anyone with members of the area committee, BLSE, AC, or BOG are prohibited.
2.14 ANNUAL CYCLE
(a) Completion of Requirements. An applicant must demonstrate compliance with all components for certification within an annual cycle beginning with the application filing date and ending with the date of certification, unless otherwise provided in these policies.
(b) Certification Dates. For applications filed by August 31, the date of certification shall be June 1; for applications filed by October 31, the date of certification shall be August 1.
2.15 REAPPLICATION FOR CERTIFICATION
An "approved" applicant who either declines to take or fails the exam may only file as a reapplicant during the next annual filing cycle.
2.16 REVOCATION
(a) Authority. Certification granted under chapter 6 of the Rules Regulating The Florida Bar may be revoked by the BLSE.
(b) Automatic Revocation. The following shall cause automatic revocation of board certification:
(1) An order imposing any discipline that terminates membership in The Florida Bar;
(2) An order imposing a suspension of the privilege of practicing law under circumstances that require an order of the court to resume the practice of law; and
(3) A decision to revoke or deny any other certification(s) held by the member on the basis of peer review determined to be inconsistent with the character, ethics, and reputation for professionalism required of a board certified member.
Upon occurrence of any of the above, the member's certification shall be immediately revoked and the member's name removed from any listings of board certified members. The board certified member shall be provided notice of revocation by mailing appropriate documents to the board certified member's record bar address, by United States certified mail, return receipt requested.
(c) Discretionary Revocation. The following shall cause consideration of revocation:
(1) A disciplinary suspension that does not require an order of the court to resume the practice of law;
(2) A disciplinary public reprimand;
(3) A disciplinary admonishment for minor misconduct;
(4) Delinquent membership as set forth in rule 1-3.6 of the Rules Regulating The Florida Bar; and
(5) Any reason set forth in rule 6-3.8(d) (1)-(5) of the Rules Regulating The Florida Bar.
(d) Procedures for Discretionary Revocation.
(1) Notice. The board certified member shall be provided notice that the BLSE is considering revocation by mailing appropriate documents to the board certified member's record bar address, by United States certified mail, return receipt requested. The notice shall specify the date on which BLSE consideration will occur and shall provide at least 20 days advance notice.
(2) Response Required. A board certified member shall respond to the notice, in writing, within 10 days of receipt. The filing shall be limited to no more than 25 pages unless extenuating circumstances are presented and additional pages, in an amount not to exceed 50, are authorized by the BLSE chair. Failure of a board certified member to timely respond, in writing, shall be considered by the BLSE as evidence that the board certified member has waived all rights to respond and consents to the determination of BLSE.
(3) Request for Appearance. A board certified member shall be afforded the opportunity to appear before BLSE to address the revocation consideration, if requested in a timely filed response required in subdivision (d)(2). The appearance shall occur on the BLSE meeting date provided in the notice of consideration. No additional information or supporting documentation may be filed. Failure of a board certified member to timely request an appearance shall be considered by the BLSE as evidence that the board certified member has waived all rights to appear and consents to the determination of BLSE.
(4) Notice of Appearance. Upon receipt of the request for appearance, the LSE director, on behalf of the BLSE, shall issue a notice of appearance to confirm the date, time, and location of the meeting. The appearance may be in person or by teleconference. The board certified member may be accompanied by counsel and may have a court reporter present, at the applicant's expense.
(5) Notice of Decision. The BLSE shall give notice of its decision by United States certified mail, return receipt requested, within 10 days of consideration of the board certified member's response and appearance, if held. The decision shall be final.
(6) Appeal. Further review of the BLSE decision shall be in accordance with the procedures set out in the 400 series of the BLSE policies. The appeal shall be limited to review of whether the BLSE afforded to the board certified member the procedural rights provided in these policies and by pertinent Rules Regulating The Florida Bar.
(e) Interim Suspension of Certification Pending Investigation. The BLSE may, at its discretion, suspend the certificate of any member who is under investigation for an offense related to professional integrity. The board certified member shall be provided notice of certification suspension by mailing appropriate documents to the board certified member's record bar address, by United States certified mail, return receipt requested. Upon occurrence of certification suspension, the member's name shall be removed from any listings of board certified members.
2.17 RESERVED FOR FUTURE USE
2.18 RESERVED FOR FUTURE USE2.19 LAPSE OF CERTIFICATION
(a) Authority. In accordance with rule 6-3.6(a), Rules Regulating The Florida Bar, no certificate shall last for a period longer than 5 years. A lapse of certification may occur for reasons including, but not limited to, a member's failure to
(1) file an application for recertification by the published deadline;
(2) file an application for recertification by the extension deadline, if an extension has been granted by BLSE; or,
(3) respond as requested to supply additional information for application completion, providing confirmation of receipt of such request can be demonstrated by return receipt delivery to the member's record bar address.
(b) Lapse Notification and Reinstatement. If a member allows a certificate to lapse, staff shall immediately send notification to the member by return receipt delivery to the member's record bar address. The notice shall advise that, if requested by the member within 3 days of receipt of lapse notification and upon payment of a lapse reinstatement fee, certification may be temporarily reinstated for a period not to exceed 10 days to allow the member to submit the required application and/or supplemental documentation.
(c) Lapse Removal. If the completed application and/or supplemental documentation as requested are received within the 10-day period, the lapse status shall be removed and the application routinely processed as elsewhere provided in these policies.
(d) Final Lapse Notification. If the completed application and/or supplemental documentation as requested are not received within the 10-day period, no further reinstatement opportunities shall be permitted and the member's certification shall permanently lapse. The member shall be so notified, by return receipt delivery to the member's record bar address, and advised that any misleading indication as to the member's certification status may result in professional discipline. Upon lapse of certification, the member's name shall be removed from any listings of board certified members.
[Revised: 01-04-2013]
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