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Court declines to adopt certification waiver rules amendments

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Heather L. Apicella

Heather L. Apicella

A Boca Raton lawyer and Bar section chair is praising a recent Supreme Court decision to not adopt a proposal to standardize the board certification process.

In a December 27 ruling, justices rejected, without comment, proposed amendments to Bar Rules 6-3.5, 6-3.6, and 6-10.3, which govern certification.

In dismissing the case, justices wrote that the Bar could file a new petition after conferring with the Appellate Practice, Trial Lawyers, Family Law, and Public Interest Law sections “as well as any other interested sections of The Florida Bar.”

During oral arguments December 8, Family Law Section Chair Heather Apicella, a partner with Gladstone & Weissman in Boca Raton, and the other sections argued, among other things, that the proposal would make it too difficult for experienced lawyers to obtain or maintain board certification.

Apicella, who has been board certified in Marital and Family Law since 2016, pointed to revisions that would remove a certification committee’s authority to waive minimum requirements for such things as the number of trials needed to maintain board certification.

She noted that the Family Law Section’s Bounds of Advocacy instructs lawyers to resolve cases “without court intervention if possible,” and that the goal of the collaborative law process is to avoid litigation.

An inflexible, five-trial mandate could put family law practitioners at odds with their responsibility to clients and the courts, and their desire to maintain certification, Apicella said.

“It is the mission of the Family Law Section and every family law lawyer not to take a case to trial,” she said. “It puts you at complete ethical odds with what’s in the best interest of the client and board certification.”

Chris Donovan , an attorney who represented the Appellate, Trial Lawyers, and Public Interest Law sections, told the justices that the proposal was a “problem in search of a solution.”

The Bar did not contend that the waiver process is being abused, Donovan  noted.

“Rarely does one size fit all and that’s particularly true for certification across 27 different practice areas,” he said.

But Kevin Cox, arguing for the Bar, said the proposal is merely designed to bring consistency in the waiver process. To do that, he said, the Board of Governors has already removed language from Chapter 6 of Bar rules, which it has the authority to amend on its own.

The Bar wanted to propose broad standards for certification and recertification in Rule 6-3.5 and Rule 6-3.6 that would require court approval, he said.

“Good cause [for a waiver] has a single definition, this court provides that definition,” Cox said of the proposed amendments. “We want to continue to use discretion, but this gives a better definition of discretion, makes it more consistent, and avoids some of the variances that have occurred in some of the individual certification areas.”

Apicella said the Family Law Section would be eager to work with the Bar if it decides to craft another proposal.

“We hold the Bar in high regard,” Apicella said.

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