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Court hears arguments on certification waiver rule amendments

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Florida Supreme Court

The Florida Supreme Court

Five Bar sections have asked the Supreme Court to reject revisions to certification rules that standardize how waivers can be granted from certification standards, rather than leave that up to individual certification committees.

At the December 8 oral argument on amendments to Bar Rules 6-3.5, 6-3.6, and 6-10.3, representatives of the Appellate Practice, Criminal Law, Public Interest Law, Trial Lawyers, and Family Law sections said the changes would make it harder for experienced lawyers to become certified or maintain their certifications.

“The Bar’s extensive rule amendments [to the certification program] are essentially a solution in search of a problem…. They admit there’s no problems with how it’s been operating, they admit there’s been no abuse of discretion, they admit there’s no flaw or insufficiency in the rule,” said Chris Donovan, representing the Appellate, Trial Lawyers, and Public Interest Law sections. “Rarely does one size fit all and that’s particularly true for certifications across 27 different practice areas.”

Kevin Cox, representing the Bar, said the Bar is attempting to provide consistency in how waivers are granted by various certification committees. To do that, the Board of Governors has already removed some language from Chapter 6 of Bar rules, which governs the certification program, that specify each certification committee’s ability to grant waivers. The board is allowed to amend those sections without court approval.

It is proposing instead to set broad standards in Rules 6-3.5 and 6-3.6 for certification and recertification and which 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 them 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.”

But Heather Apicella, chair of the Family Law Section, said those individual variations are important to recognize the unique requirements of different practice areas. She noted the Family Law Section’s Bounds of Advocacy instructs lawyers to resolve cases “without court intervention if possible,” and the goal of the collaborative law process is to avoid litigation. Yet lawyers following those goals could find it hard to meet the five-trial standard in certification rules.

The board’s action “will place the family law lawyers into a black and white rule in a very unique category requiring trials and requiring those very lawyers…to no longer be able to waive the substantial involvement or the trial requirement,” Apicella said. “For a lawyer to know that his or her board certification…[can be] stripped from him or her because they are abiding by what the Legislature has mandated, this court has mandated, is absolutely devastating. It is going to be the death knell of board certification in family and marital law should you strip the committee of discretion.”

Michael Ufferman, representing the Criminal Law Section, asked the court to send the issue back to the Bar to allow the sections greater involvement in crafting the rules.

The oral arguments came in In re: Amendments to Rules Regulating The Florida Bar — Rules 6.35, 6.36, and 6-10.3, Case No. SC 21-164.

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