Monday, November 6, 2017

What Does It Mean To "Specialize" In Elder Law (or, for that matter, in any field of law)?

Recently, as a result of a reporter asking me to explain the significance of "certifications" for elder law attorneys, I found myself digging fairly deeply in order to respond.  The answers depend on definitions to three different, but related concepts:  expertise, specialization, and certification. 

I know that when I'm looking in a region of the U.S. where I don't personally know someone, I often start with the National Academy of Elder Law Attorneys' (NAELA) webpage that allows me to do a state or zip code search for member lawyers who identify as "elder law attorneys."  Also, depending on the issue, I look at numbers of years in practice, as well as areas within "elder law" that the individuals choose to identify as their areas of experience.  For example, are they more interested in retirement planning than, say, handling guardianships or conservatorships that might require litigation?  The NAELA attorney search engine allows members to provide this kind of information.

I also look to see if that attorney is a "Certified Elder Law Attorney" or CELA.  Or, because there are only about 500 CELAs in the United States, if I'm willing to consider a younger attorney, perhaps there is a CELA working in the same law firm or community, someone for a younger attorney to call for guidance.    

The CELA designation, which is usually listed on the NAELA website if a member holds such a designation, actually is earned from the National Elder Law Foundation or NELF, rather than NAELA.  It requires specific years of relevant experience handling elder law matters (at least 5 years), peer recommendations, participation in at least 3 years of continuing legal education focused on elder law, and passage of a day-long exam that covers the waterfront on elder practice-related issues.  The exam includes both essay and multiple-choice questions, addressing 5 "core" areas and 7 additional areas. A very seasoned attorney I know well and would recommend regardless of any "certification," once told me he didn't pass the CELA exam on the first attempt. He studied harder and passed it the next time and he likes to see lawyers in his firm seek the certification.

NAELA is a membership organization and NELF is a certifying organization, and each have relevant information to offer consumers about elder law practitioners.  (Historically, a group of NAELA lawyers helped to start the NELF organization, but the two entities have separate missions now.) Thus, I use NAELA to identify attorneys with experience and interest in elder law, and look for the Foundation's  CELA designation as a way to measure "expertise," as it  requires a mixture of objective information and testing and more subjective, but still important information from peers, to show engagement in the specialized field.  

In many states, the CELA certification also allows individuals to hold themselves out as "specialists" in elder law in advertising and communications with the public, because pursuant to professional conduct rules (e.g., Model Rule of Professional Conduct 7.4), that state has "approved" NELF as a "certifying" organization.   Each state decides for itself what certification or other measures of experience and expertise to use in deciding whether an attorney can advertise any particular "specialization." 

But what about a consumer who is trying to make an informed choice about an elder law attorney without first being aware of those organizations?  I suspect the consumer might turn to the state's Bar Association or Supreme Court websites for information.  While bar associations don't "recommend" attorneys, states do have regulatory bodies for lawyers that set standards for when and how lawyers can call themselves "specialists" in elder law or in any field of law. 

I decided to search on my own state's Bar-related websites to see what a consumer might find about specializations for attorneys.  Hmm.  Some confusion here. In Pennsylvania, as I first worked on this post (on 11/2/17), there was no link on the Pennsylvania Supreme Court's websites that told me what areas of law have recognized specializations.   I "knew" elder law was an approved area of specialization in Pennsylvania, and that it relies on "CELA" certification by NELF, but I couldn't find that out from an internet search at the Court website.  I tried calling -- and after several calls -- I did find a great person in the office of the Prothonotary for the Disciplinary Board for the Pennsylvania Supreme Court, who understood what I was asking about.  But, she too could not find specialization or certification information on the official websites.  In other words, you could use the NELF website to learn that Pennsylvania has CELA specialists, but you couldn't use the Pennsylvania Supreme Court website to find out that Pennsylvania recognized elder law specialists.  

Fortunately, this concern was already on the Pennsylvania Court's radar screen, and on the same day that I made my calls, my contact person expedited plans to update the Supreme Court website, using the Pennsylvania Supreme Court's Disciplinary Board  to post information about specialization areas and certifying organizations.  (From a consumer and marketing perspective, I'm thinking that perhaps the disciplinary board's site shouldn't be the only spot, as I suspect most consumers are trying to avoid "disciplinary" issues when they are looking for attorneys with special expertise. I'm smiling as I type this, recognizing a bit of irony behind the Pennsylvania Court's website design.) 

But I also found a possible glitch for consumers in tracking down information at another site.  The American Bar Association actually has a webpage called "Find a Certification Program," and it explains:

While attorneys may be certified by any private certification program, each state has specific rules governing how lawyers may communicate their certification. Be sure to contact the state representatives listed for more information regarding recognition of private specialization programs.

The ABA website allows you to do a state-by-state search for certifications.  The page for Pennsylvania listed ten different approved programs (alphabetically from Bankruptcy to Worker's Comp), but it did not list elder law as having approval.  So, at least on the day (11/3/17) I searched the ABA website, the site did not seem to be up-to-date.  

When the reporter called me, I thought the answer to her questions about "certification" would be straight-forward and I could  provide her with verified sources of consumer-friendly information quickly.  Alas, it wasn't quite so simple, and I'm not even going to attempt to tackle all of the marketing-driven websites that purport to offer information about attorneys' expertise, but that aren't part of any approved organization.

Certainly I don't rely exclusively on CELA designations or specialization claims when I'm looking for an experienced practitioner to recommend for a family member or friend. Every consumer is wise to seek as much information as possible about any attorney's experience, their engagement with the specialized field's other lawyers, their participation in continuing education programs, their reputation among peers, etc.

I, for one, appreciate that elder law attorneys have professional organizations at the state and national level that take standards for "specialization" seriously, and I like NELF's objective examination requirement as one of the standards.

It is easy to see how glitches in official on-line information can happen. Websites change, certifications change on a state-by-state basis, state professional conduct rules change, and it is easy for someone to forget to notify the right person about changes.  But, it also means that consumers could be even more frustrated than I was if they are trying to rely on official sources for help in making informed choices about attorneys.

Consumer Information, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink


Basically, to specialize in elder law means to limit one's practice to elder law and fields related to elder law, such as non-elder estate planning, special needs planning, real estate, and guardianships and conservatorships.

Posted by: Martin C. Womer, Esq. | Nov 6, 2017 11:03:08 AM

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