Speeches by Chesterfield - Vol. II, 23-37. 1968-1970

VOLUME II

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#23 INDIVIDUAL RIGHTS AND RESPONSIBILITIES -
COMMENCEMENT WEBBER COLLEGE
Babson Park, Florida
May 18, 1968

#24 LEGAL SPECIALIZATION PROS AND CONS -
GENERAL ASSEMBLY, MISSISSIPPI JUNIOR
BAR AT SIXTY-THIRD ANNUAL MEETING,
MISSISSIPPI STATE BAR -
Biloxi, Mississippi
June 27, 1968

#25 ADMINISTRATIVE LAW SECTION
Re. Specialization
August 6, 1968

#26 SPECIALIZATION IN THE LAW WHITHER NOW?
OMAHA BAR ASSOCIATION
Omaha, Nebraska
September 12, 1968

#27 SP REALIZATION IN TUE LAW WHITHER NOW?
THIRD NATIONAL CONFERENCE ON LAW
OFFICE ECONOMICS AD MANAGEMENT -
October 19, 1968

#28 .UNIVERSITY OF FLORIDA TELEVISION
'e. Constitution Revision
Gainesville, Florida
October 24; 1968

#29 SPECIALIZATION.IN THE LAW WHITHER NOW?.,
MIDYEAR MEETING OF THE LOUISIANA ""
STATE BAR ASSOCIATION
December 14, 1968

VOLUME II (cont.)

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#30 BOARD OF DIRECTORS,
AMERICAN JUDICATURE SOCIETY
January 26, 1969

#31 SPECIALIZATION IN THE LAW WHITHER NOW?.
ANNUAL MEETING OF THE NEW YORK STATE
BAR ASSOCIATION -
January 31, 1969

#32 SPECIALIZATION IN THE LAW WHITHER NOW?
ANNUAL MEETING OF THE SOUTH CAROLINA
STATE BAR -
June 6, 1969

#33 GRADUATING CLASS COLLEGE OF LAW -
UNIVERSITY OF FLORIDA
Gainesville, Florida
August 31, 1969

#34 BENEFITS OBTAINED FROM A CONFERENCE
OF LOCAL BAR PRESIDENTS-
FIRST ANNUAL MIDYEAR MEETING -
SATE BAR OF MICHIGAN -
January 24, 1970

#35 WH4T IS A LAWYER? WHAT IS HIS FUTURE? -
TENNESSEE BAR ASSOCIATION, EAST
TENNESSEE MID-WINTER MEETING -
January 30, 1970

#36 SPECIALIZATION IN THE LAW WHITHER NOW?
MID-WINTER MEETING OF THE YOUNG
LAWYERS SECTION, ABA -
Atlanta, Georgia
February 21, 1970

VOLUME II (cont.)

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#37 WHAT IS A LAWYER? WHAT IS HIS FUTURE?
ST. PETERSBURG BAR ASSOCIATION
INSTALLATION BANQUET -
April 1, 1970

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 23

VOLUME II

ADDRESS OF:

CHESTERFIELD SMITH

AMERICAN BAR ASSOCIATION

BEFORE:

COMMENCEMENT WEBBER COLLEGE

DELIVERY DATE:

TITLE:

SATURDAY, MAY 18, 1968

INDIVIDUAL RIGHTS AND
RESPONSIBILITIES

TIME:

22

* "'*'*.'"* '-'"'; -*^ .- l"--^ ---".--;~--. .^ ; .- :77

"INDIVIDUAL RIGHTS AND RESPONSIBILITIES"

ADDRESS BY CHESTERFIELD SMITH, LAKELAND, FLORIDA
COMMENCEMENT, WEBBER COLLEGE
May 18, 1968

We who are fortunate enough to live in the United

States of America are again engaged in one of our perennial

struggles between individual rights and individual respon-

sibilities. Regrettably, the advantage at present seems to

be falling to the advocates of individual rights. Everyone

now talks about civil rights; no one has much to say these

days about duty, and obligation, and responsibility. If

someone does bring up that point, not many interested hearers

are in evidence, and even those seem to feel the subject

distasteful.

Youth in general, and students in particular,

loudly proclaim their protests over any attempts to regulate

their lives by law. They claim to be mature enough, and

responsible enough, to decide for themselves what is right

and wrong, good and bad. The major change in the last few

years is in the attitude of others on campus toward students

who participate in this new morality. The popular attitude,

even among the conservatives, is to live and let live.

However, there is no valid evidence to suggest

that any very radical change has occurred in the private

morality of students in their practices with respect to

either alcohol or sex. There is no more drunkenness on

the campus today than in my time a generation ago. Freed

from some fears and inhibitions by the readily obtainable

pill, there are a few emotionally mixed-up kids who are

sexually promiscuous. There also is a fair amount of pre-

marital sex between youngsters in love and planning to be

married. But then there always has been. Student cohabita-

tion is no more prevalent today than it was in the time of

the mothers and fathers of today's students. If fellow

students judge such a relationship between students to be

meaningful, a co-ed with that arrangement no longer has a

ruined reputation. Such attitudes are considered by the

students to be a thing of the Victorian past and perhaps

they should be.

Today's students do not seriously clash at these

points with public law. Many of them drink before they are

twenty'one, and thus violate the law of most states, but

often their liquor is served to them by their parents or

their parents' friends. The debutante parties given by

the leading citizens of society fracture the law spectacu-

larly in this particular regard. Students can hardly fail

to observe that their elders honor many of the official

positions of American society very much more in the breach

than in the observance.

-2-

Today's clashes between students and college and

university administrations are again nothing new. The Presi-

dent of Amherst College in the 1890's was forced to resign by

a student riot led by a young radical named Harlan Fiske

Stone, later Chief Justice of the United States. In the

1770's, the President of King's College in New York was so

terrified by a student torchlight parade to his house that he

fled down the back stairs to a British warship in the harbor,

on which he sailed home to England, never to return. The

student leader of that parade was Alexander Hamilton.

What is new in this particular conflict is the

fact that students are clamoring today for all of the rights

and privileges of full citizenship. Aided and abetted by

certain faculty members, they are demanding that in all

academic discipline, the full paraphernalia of adversary

proceedings be used, including the right to counsel, to

cross-examine accusers, to trial by a jury of peers. They

want their dormitory rooms protected against search without

a warrant. They want to be able to refuse to answer ques-

tions on grounds of self-incrimination. They want due

process with a capital D and a capital P.

There has been a historic concordat between town

and gown, due to which college students have always enjoyed

a certain immunity from the civil authorities. Students

apprehended by local police actually committing a crime have

-3-

traditionally not been arrested and brought to trial but

rather turned over to the college for its discretionary

discipline. In 90 per cent of cases involving student

dereliction, the problem has not been one of establishing

guilt or innocence. The student unquestionably has been

guilty and has openly admitted it! The problem was to let

the punishment fit the crime, and on the whole school

administrators have historically been pretty good at that.

Much better by and large than student courts, who have in

the past tended to be overly severe.

What students are now saying is that they no

longer want to be treated so, no longer want the college or

university to be "in loco parentss. They are not, they

say, minors but majors, and they demand all of the privileges

appertaining thereto. They say that the manner in which

they conduct themselves outside of classes is not the

school's concern. Their attitude is that students are

responsible and should have opportunity and environment

to do what they want to do. They contend that no college

should have sole jurisdiction over the social life of its

students.

The glaring omission in this position is the failure

to recognize as a necessary corollary that they must also

accept the responsibilities that accompany those rights.

If deans can no longer stand in place of parents, if

-4-

academic administrators must act in all respects like the

civil authorities, then there will inevitably be increasing

resort to these authorities. To be blunt, the college will

"call the cops". Student misdemeanors will no longer be

dealt with privately, with wide discretionary powers ex-

ercised by the dean, but in court with counsel and other

trappings of due process. Convictions will become a part of

the student's permanent and public record, not kept in a

confidential school personnel file, regarded as youthful

pranks to be forgotten and forgiven.

Where narcotics are involved, and we must acknowledge

that the use of narcotics is regrettably on a sharp increase

on most campuses, administrators requiring search warrants

will go to the police and offenders will be treated as vio-

lators of federal statutes. Unfortunately, many students

today regard their own private notions of morality concerning

marijuana and other psychedelic substances as superior to and

surpassing the public laws. It is doubly unfortunate that

they are given aid and comfort in this position by supposedly

competent medical authorities who regard the use of some of

these substances as relatively harmless. Using that kind of

expert ammunition, students argue that these drugs are merely

like alcohol both only give one a pleasant buzz. No one

seems able to make them see that pot may have a severe psycho-

logical impact or encourage the use of addictive drugs. In

-5-

that regard, it can be compared with extreme alcoholism, that

is, the situation where an alcoholic takes one drink and then

loses contact with reality and ceases any longer to be a

responsible human being.

I personally believe that student demands for

protection under the law are going to have consequences un-

foreseen by them and their advisers. They are appealing

from one law, which they currently regard as arbitrary, to

another, which they find more just. Their private moral

judgments see only the rights due them as individuals under

adversary proceedings. They cannot see that behind every

right lies a responsibility; behind every privilege there is

an obligation. The first cannot exist in the absence of

the second. Without some form of public order, no individual

has any civil rights. He has only what he can protect by

his own brain and brawn. Just now, youth is obsessed with

demanding their rights. But if history is any judge, youth

will learn that those rights carry a price tag. No society

can long endure on the philosophy of only taking without

giving. Unless students have a willingness to accept respon-

sibility, no enduring rights can be achieved by them. In

actuality therefore, our new student philosophy is not an

appeal to private morality in contradistinction to public

law. It is only an exchange of the law of the police and

the courts for the law of the dean and the trustees. The

alternative is anarchy.

-6-

A similar principle holds with respect to the

civil rights movement. In the early stages of the sit-ins,

the demonstrations, the marches, the boycotts, the prime

purpose of the participants was to test certain public

laws, local ordinances clearly discriminatory in nature,

against another and higher public law, the Constitution of

the United States. The private consciences of the protesters

told them that the local laws were wrong, and they deliberately

disobeyed them, seeking arrest and trial so that these laws

could be tested in the higher court against the higher law.

That sort of relationship between private morality and public

law is altogether legitimate and has a long and noble tra-

dition behind it. To argue on the other hand, however, that

my private morality is superior to the highest law of the

land and that I can disobey that law with entire impunity

is quite another matter.

The individual, of course, always has the option

of martyrdom. Against arbitrary tyranny, disobedience and

resistance are often heroic, and the annals of human nobility

shine with the courage of such stars. But those great ones

were never under any illusions that the regime against which

they moved would simply say to them, "There, there, that is

perfectly all right. Here is a mild slap on the wrist. Now

go, and sin no more." They knew perfectly well that they

risked apprehension, imprisonment and often death.

-7-

What our contemporary leaders of protest movements

are demanding is that in the name of their private morality

they be permitted to violate laws that are perfectly consti-

tutional and then be excused for such violations on the

grounds that they were done for conscience's sake.

They seriously believe that they should be allowed

to stop traffic during rush hour at busy city intersections,

to move in and occupy buildings and offices, making it impos-

sible for the rightful owners and occupants to transact normal

business, to prevent trains carrying troops or munitions from

arriving at their destinations.

No matter whose conscience is involved, I know of

no law or court decision which makes that kind of behavior

permissible in an orderly society. If it is excusable on

grounds of conscience for a group of civil rights demonstra-

tors to disrupt a city's traffic, then why is it not equally

excusable for a white citizen's council also on grounds of

conscience to disrupt a civil rights rally?

Many, indeed most, of our present protesters will

not only accept but demand the full protection of the law

for their rights to dissent, to demonstrate, to speak, publish

and assemble. If the police do not act to shield them from

hecklers and bullies, they are outraged. But they cannot

see that those same police are merely doing their same duty

when they break up an illegal sit-in or march. There is a

-8-

hint of philosophical anarchism behind some of the more

bizarre protest groups in our midst, the hippies and mods,

the beatniks and Vietniks, who drop out, op out or cop out,

thumbing their noses at society and its values. They suggest

in their actions, if not in their words, that all authority,

all order, all structures of law are beneath contempt. What

they curiously fail to recognize is the strong likelihood

that if their vision of society prevailed, they would them-

selves be the first victims of the lawlessness they advocate.

Unrestrained by police and civil law, an outraged public

would move in on these societal defectors, and clean them

out! The police who are so often accused of brutality and

prejudice come in very handy when illegal bullies attempt to

disrupt legal demonstrations.

I am not suggesting that direct action should

be banned, though techniques once effective because they

were called forth to dramatize desperate situations have

lost much of their effect by being used to express a sometimes

merely petulant disapproval. There are situations, as in

labor strikes, where negotiations break down, and no other

avenue is open except to strike and picket. In those

situations, extreme measures are demanded, but they do not

call for violating the rights of other American citizens.

Not in a democratic society, where the people are governed

by their own consent.

-9-

Societies do sometimes reach the point where the

people have no recourse except revolution. The United States

of America of all nations should know that. Our country has

been known across the years to support a revolution or two

elsewhere in the world. But until that time comes, any

nation-state has not only the right but the duty to protect

itself and its citizens from minorities who attempt to set

their private morality above the public law. When and if

the time comes when the public decides the minority is

right and the law is wrong, then the law will be changed or

there will be a revolution. But until then, we must assume

that the law represents the wish of the public, or at least

the majority thereof, and it must be enforced.

We as a nation have been remarkably tender toward

dissenters. We can boast a better record in that area than

any other nation in the world. We have some scars here and

there: the denial of habeas corpus during the Civil War,

the Communist hysteria and its tragic excesses after both

World Wars, the relocation of Japanese-American citizens

during World War II, but on the whole we do not come off

too badly. People today in the heat of passion over Vietnam

forget that there has been a noisy, strong-minded minority

vocally opposed to every war we have ever fought, saving

only World War II. It was true of Korea, of World War I,

of the Spanish-American War, of the Mexican War. Many op-

ponents of our own Civil War were absolutely persuaded that

-10-

military victory was impossible in that one. And both 1812

and the Revolution were bitterly opposed by many Americans.

We have allowed the dissenters their voice, have tolerated

those who lash out savagely at the whole fabric of our

society, yet never in our history have the protections ac-

corded under the law to individuals and groups been stronger.

We cannot permit espionage, sabotage or treason. But subject

only to the clear and present danger limitation, we allow

even a lunatic fringe to sound off at will. When a speaker

can stand before an audience and exhort them to "Burn it

down, baby, burn it down!", and that not only once but numerous

times, and stay out of .jail, I have no fear for the civil

liberties of dissenters! Even the accused American criminal

today has greater protection than the upstanding citizens of

half the world.

And yet, despite that record, despite a heritage

which should evoke pride, there are large numbers today who

seem to hate their country and virtually everything it stands

for. Our press, our educators, our churchmen, our political

leaders outdo one another in damning and denouncing our

President, our Supreme Court, our Departments of State and

Defense, our admirals and generals, our Governor, our legis-

lators, our sheriff and police, our superintendents of

schools, our national policies, foreign and domestic. If

you read the editorials, the columns, the speeches and panel

-11-

discussions of the so-called "opinion makers" of our society

today, whether conservative, liberal or middle-of-the-road,

you really will wonder why anyone should be proud to be an

American. All we hear any more from them is what is wrong

with us, and those few individuals who dare now and then to

speak up in defense of our really very impressive past and

present are accused of being administration finks' It has

become very fashionable nowadays to be very sophisticated,

very cynical and very critical. Dissent and difference from

whatever party or person happens at the moment to be in power

is one thing an important and essential part of any democracy.

But we lack and must promptly develop the concept of a "loyal

opposition", opposed to the present administration, but

nevertheless always faithful to the nation.

In many of the Iron Curtain countries, the schools

and universities of the socialist countries do an extra-

ordinarily impressive job of educating their young people

toward a thoroughly positive desire to make their own in-

dividual contribution to the larger goals of the society as

a whole. The students are not by and large brainwashed or

propagandized Communists. They are properly skeptical about

the more extreme and outlandish claims of the bureaucrats.

But they are all the same thorough patriots, devoted to their

countries.

We used to do this. All of us were subjected to

civics courses which made us glad and proud to be Americans.

-12-

But no more. Today it is fashionable not to praise but to

blame, not to emphasize the advantages of being part of this

society, but rather to point out the way in which we deprive

individuals of opportunities and rights.

Of course our society does have shortcomings.

So long as men are men and not gods, we shall falter and

fail. It becomes largely a question of emphasis, whether one

concentrates on one's blessings as compared with other actual

societies or on one's bane, as compared with "Utopia". The

young can properly see only one dimension forward from

where we are to the future world of their hopes and ideals.

Older people must from the imperatives of experience take

account of two other equally valid dimensions backward to

the way things used to be, and sideways to the way things

are in other societies.

So today, understandably, the young person stresses

the individual and his rights and privileges. He must, he

claims, be allowed to decide whether he will fight to defend

his country. He and his private morality must likewise, he

feels, be free to disobey public laws he does not like. He

accordingly cannot be expected to cooperate with police,

reporting crimes he witnesses. But America has been here

before. We have been through periods in which the individual

rights of our citizens have taken precedence over their

individual responsibility to others and to our country.

-13-

And without such periods and such protest, there is always

the danger that the State will become a monster, devouring

and depriving its citizens instead of serving them. The

dialectic is an indispensable part of our tradition, which

has always protected us from tyranny. But the pendulum has

in the past invariably swung back, and there is every reason

to believe that it will do so again.

In conclusion, you as students entering into

mature citizenship must take all possible measures to insure

that the good sense of the American people will once more

assert itself, and that we shall again find the proper

balance between individual rights and individual responsi-

bility. It is an exciting challenge which must be met, or

as a nation we have no future. Young people never achieve

distinction by inertia. Our society can only be re-established

to greatest by those willing to demand not only their rights,

but also to accept their responsibilities. As a graduate, you

can and should help the pendulum swing.

(The End)

-14-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 24

VOLUME II

/

Address of: Chesterfield Smith, Lakeland, Florida,
Chairman, American Bar Association Special
Committee on Specialization

Before: General Assembly, Mississippi Junior Bar,
at Sixty-Third Annual Meeting, Mississippi
State Bar, Buena Vista Hotel, Biloxi, Mississippi.

Title of
Address: "Legal Specialization Pros and Cons"

Date of
Delivery: Thursday, June 27, 1968, 4:00 P.M.

Recognition and regulation of specialization in

the practice of law is not a new subject for the legal pro-

fession, nor for the American Bar Association. Active con-

sideration thereof began at least as early as 1952, with the

appointment of a Special Committee on Continuing Specialized

Legal Education. The report of that committee came to be

known as the "Tweed Amendment", which may be properly credited

as the original American Bar Association document on the

subject.

In the following year, a new committee was appointed

to make specific recommendations; the House of Delegates as

a result thereof adopted the following resolution:

RESOLVED:

1. That the American Bar Association ap-
proves in principle the necessity to

regulate voluntary specialization in
the various fields of the practice of
the law for the protection of the pub-
lic and the bar; and

2. That the American Bar Association ap-
proves the principle that in order to
entitle a lawyer to recognition as a
specialist in a particular field, he
should meet certain standards of ex-
perience and education; and

3. That the implementation, organization,
and financing of a plan of recognition
to carry out such principles is dele-
gated to the Board of Governors, subject
to final approval by the House of
Delegates.

Efforts were made in the House of Delegates in

1954 and again in 1962 to implement that resolution without

success. In spite of that apparent unwillingness of the

American Bar Association either to control specialization

or to accept regulation thereof, the fact of legal speciali-

zation continues to persist and expand.

In August, 1967, the Committee on Availability of

Legal Services reported to the House of Delegates its firm

conclusion that the recognition of specialization in the

practice of law measurely would improve the availability

of legal services to those who stand in need of such ser-

vices. That report was approved by the House of Delegates

in Honolulu, and the Board of Governors thereafter established

a special seven-man Committee on Specialization, directing

it to assemble and study information relevant to all aspects

-2-

of voluntary specialization, and if the committee should

determine that the promulgation of a plan of voluntary

specialization is desirable, to prepare a plan in various

fields of the practice of law for the consideration of the

Board of Governors and the House of Delegates.

The organizational meeting of the Special Commit-

tee on Specialization was held in January, 1968, and subsequent

meetings were held in March, April, May and June. All Sections

and all committees of the American Bar Association, all other

bar interest groups which have come to our knowledge, whether

or not they are affiliated with the American Bar Association,

all state bar associations, and all large local bar associa-

tions, were invited by our committee to present their views

on the subject of whether it is desirable that a plan of

formal recognition of voluntary specialization by the legal

profession be promulgated, and if such a plan should be

recommended, what form it should take. A public hearing

was held by the committee in Chicago on Saturday, April 6,

at which time the committee received many position and letter

statements from sections, committees, lawyers in their indi-

vidual capacity, state bar associations and other lawyer

interest groups setting forth their views on this complex

and difficult subject. Many of those statements and let-

ters were reflective, studious, and thought-provoking.

Undoubtedly, the views advanced at that public hearing will

-3-

be of inestimable help to us in reaching our final conclusions.

After the public hearing, the committee mailed

a letter to some 1700 leaders of the Sections of the American

Bar Association requesting their advice and council on the

subject of voluntary specialization. The response thereto

has been amazing. An extremely large number of meaningful

replies have been received as a result of this mailing, and

those replies are now being carefully studied by our committee.

To wade through the mass of literature and other

material we have assembled on the subject of specialization

is obviously a monumental and time consuming task which will

take several more months of committee work. Our committee

does hope sometime in the fall to disseminate to all those

who have expressed substantial interest in our assignment

our tentative conclusions. After considering comments thereon

from wherever received, a consensus of the committee will

hopefully be presented to the House of Delegates for action

at the 1969 Mid-year Meeting.

As you can see, our committee obviously has only

really recently embarked upon its assigned task, and none

of the members of our committee have yet reached a final

position on the subject. As Chairman of the committee, I

sincerely believe that all committee members still have an

open mind on the subject, amenable to argument, persuasion,

and further study. I am even more firmly persuaded that the

tentative views hereafter expressed by me are not now endorsed

or accepted by the committee as a whole, or any one or more

of its other members, and may never be. In fact, I am ab-

solutely positive that many of them will not ultimately be

accepted by the committee.

While any reasonably prudent lawyer would therefore

promptly acknowledge that taking an individual position at

this time is premature, and then simply discuss the pros and

cons of the subject, or outline the problems that must be

solved without discussing possible solutions, I being neither

reasonable or prudent shall throw caution to the winds, forget

that I am Chairman of a committee composed of zealous and

fiercely independent men who may never concur with me, and

bravely set forth as an individual practitioner from a

moderate size community in central Florida to give you the

benefit of the tentative conclusions which I personally

have reached at this point in time of our overall effort.

While most lawyers still at least pay lip service

to the obsolete myth that a lawyer can be a jack of all

legal trades, I submit that in fact no modern lawyer can

validly purport to act with competence throughout the entire

spectrum of legal problems, and that most lawyers now clearly

recognize that fact.

At least some degree of specialization is obviously

an existing necessity of modern law practice, and it properly

-5-

should be. Our ever-expanding society makes the problem

solving needs of lawyers' clients increasingly complex, and

will of course inevitably lead to an even higher degree of

specialization. The failure of the organized bar to regulate

and control specialization will not terminate the existing

de facto legal specialization. Legal specialization, pro

or con, is here. For that reason, I submit that the or-

ganized bar ultimately has little choice other than an

intelligent regulation of specialization.

It is true that we could, as many lawyers advocate,

simply allow the present trend to continue to its ultimate

destiny. This I have personally rejected, as I do not

believe that lawyers can look the other way when a serious

structural deficiency exists in the legal profession.

Alternatively, we can discourage the spread of

specialization. Again, it is my personal judgment that the

existing trend cannot be reversed, and if tried the result

may be disastrous. The public will inevitably turn else-

where for expertness.

I submit that the only reasonable choice which

the organized bar has is to wholeheartedly encourage the

existing trend to legal specialization by so channelling

it as to preserve our traditional ethical concepts.

Certainly, the historical belief that any good

-6-

lawyer, given sufficient time, can handle any type of legal

problem should be reanalyzed, at least from the standpoint

of our clients. Even if it be a true assumption, which I

doubt, I suggest it now to be both unethical and improper

for a lawyer to put his client to the expense of paying him

for the time essential for the proper discharge of the

entrusted responsibility, when there are lawyers already

proficient in handling such matters who could perform the

same service at less cost. Yet I personally suspect that

many lawyers routinely accept professional employment in

areas in which they are not individually competent.

Under our present system, lawyers who do in fact

specialize are of course only self-proclaimed specialists.

While it is true that our existing system of de facto legal

specialization is only implicitly sanctioned by the organized

bar, we must also admit that the organized bar as an entity

does nothing to insure the integrity of that self-proclamation.

A lawyer who styles himself a specialist in one

field of law may or may not have an expertise and competence

therein. If a lawyer is to specialize and be an expert in

one field, it is hardly arguable that the organized bar

should require a minimum competence from him. It seems to

me that the problem of certification is an integral part of

the issue of whether or not to regulate legal specializa-

tion. A bar represented expertness, or even a bar countenanced

-7-

self-certification of expertness, that does not in fact

exist, would be far worse in its effect upon the public

image of the bar than any of the present detriments to that

image attributable to the non-regulation of specialization.

A certification procedure for those lawyers who

do specialize must therefore be promptly devised; self recog-

nition of special proficiency which is not verified and factual

just is not an acceptable substitute. The difficulty with

self-certification, apart from the case of the lawyer of

little integrity and no actual expertise who will claim ex-

pertise for self aggrandizement, is with the lawyer who

honestly believes that he is qualified for specialized practice

but who would be rated as a novice by those lawyers clearly

entitled to accreditation as experts.

The public is entitled to much more than unregulated

specialization based upon self-certification. If the public

image of the organized bar is to be unblemished, lawyers

as a group must exercise a high degree of responsibility

to those far less informed members of the general public

seeking a lawyer and who rely or may tend to rely upon

what may be a false claim of special proficiency.

Lawyers who undertake legal services which they

are individually incompetent to perform lend credence to

the claim of lay groups that attempts by the bar to deter

-8-

the unauthorized practice of law by specialized laymen is

motivated solely by the economic self-interest of the com-

plaining lawyers. The failure of the organized bar to make

the availability of competent legal specialists widely known

to the public can only increase the chance that a person

needing legal services will turn to a well-publicized

specialized layman rather than to a lawyer.

Another possible benefit from the recognition and

regulation of specialists is the increased competence of

lawyers as a group. Recognition of the limitation of one's

practice to a specified branch of the law by experienced

practitioners of demonstrated capacity seems to me to be

clearly in the public interest, and if permitted, obviously,

would increase the quality of the legal services performed

by those limiting their activities.

Our committee acknowledges that any specific

program will be opposed by at least a substantial number of

lawyers, because many lawyers will fear that they will not

be able to qualify in a particular field in which they are

interested, especially if the certification procedure im-

poses high standards. Other general practitioners who do

not specialize and who have no desire or interest in specializing

will fear a loss of practice to those who do qualify as legal

specialists and who are so certified. Also, many lawyers who

presently specialize will fear that a formal program may

-9-

result in their having to give up work which such lawyers

are now doing in legal areas outside of their own specialty.

Certainly, those obstacles, fears and objections

are not to be casually brushed aside. To advocate the case

for regulated specialization is not to deny that there are

major obstacles to its effective implementation, and that

significant changes must be made in the way that many lawyers

have been doing things.

Preparation of a workable and acceptable plan

for the recognition, certification and regulation of legal

specialists will not be an easy task. Consideration of

graduate study, experience and demonstrated capacity, and

examinations by specialty boards must all be fully consi-

dered as appropriate qualifications for a specialization

certificate. A recognition of specialization at the same

time must not disregard the importance of a broad legal

education. Specialization must be the result of both

experience and particularized training and study.

It is somewhat ironic that the lawyers who seem

to object most to recognition and regulation of speciali-

zation advance arguments concerning the supposed harmful

effect upon the sole practitioner and the small partnerships

in rural areas. The big firm lawyer already has the bene-

fits of specialized practice. Large law firms in general

are not adversely affected by the failure of the bar to

-10-

recognize and regulate specialization, because a large law

firm usually has little difficulty in making the availability

of the specialized services of its individual lawyers col-

lectively known to its prospective clients. Recognition and

regulation of legal specialization will tend to equate the

sole practitioner and small law firm with the large law

firm in also making the availability of specialized services

known to their prospective clients.

Realistically, one of the principal reasons for

the success of large law firms is that they have had no

difficulty in communicating to the public that they offer

specialized services, and that the collective abilities of

their lawyers enable them to be specialists in every field.

The official recognition of specialists would enable the

public to learn of specialization by certified sole practi-

tioners, or by lawyers in the small firms. Certainly it

would aid those lawyers in informing the public that

specialized legal services can be made available by general

practitioners as well as by large law firms. I frankly

believe that it will enable the small practitioner more

effectively to compete with the large law firms, and that

it may well be the best means available to insure the

ultimate survival of the independent sole practitioner.

Admittedly, many of the statements I have made

are argumentative. Other assertions upon challenge are

-11-

difficult or impossible to prove. Nevertheless, if our

committee is to discharge its entrusted responsibilities,

it must ultimately take positions based upon an application

of sound judgment objectively applied to all of the facts,

to all of the surveys, to all of the legal articles, to all

of the position papers, to all of the oral and written

arguments which have been presented to it.

If that standard is to be reached, the thoughts

and conclusions finally achieved by our committee certainly

will stand up better on final consideration if they have

been thoroughly critiqued, carefully analyzed and strenuously

debated. In an effort to provoke that critique, analysis

and debate, the following tentative positions on matters

which I personally believe should be included in our com-

mittee's final report are offered for your consideration:

FIRST, specialization in the practice of law

actually does improve the quality of legal services avail-

able to the public; therefore, specialization by lawyers

should be encouraged, even though specialization is not

synonymous with expertness. However, the certified specialist

must still be a lawyer and not a mere legal technician.

A competent lawyer is not required to know the law without

research; he must only have the ability to find and evaluate

the law. Even a true expert, with substantial repetitive

-12-

experience in a given area, will rarely, if ever, give a

firm commitment as to the law on a particular point without

research. His advantage arises from the shorter research

time required.

SECOND, the transition from the present unregu-

lated specialization to a system of officially recognized

and regulated specialization would cause economic hardship

to many present practitioners, particularly if certified

specialists should ultimately be permitted to notify the

general public of their certification.

The importance of the lawyer in general practice,

historically and currently, to the public and to the legal

profession, can hardly be overstated. Any plan for the

regulation of specialization must preserve the usefulness

and effectiveness of general practicing lawyers. The

contribution of the general practitioner in the ongoing

activities of the organized bar is and has been monumental.

General practice is one of the most difficult

practice areas in the law. It requires being currently

familiar with several subject areas of law the areas

varying in different geographic areas. Many continuing

legal education programs are especially designed to help

the general practicing lawyer to keep up to date in those

law areas. It is readily apparent that any acceptable

system for the regulation of specialists must not tend

-13-

to eliminate county-seat lawyers, nor benefit, by reason

of provisions inherent in the system, the middle and large

sized law firms to the detriment of small firms and indivi-

dually practicing lawyers.

Any plan of regulation must therefore be consis-

tent with recognition of the importance of a broad legal

education, and must minimize any adverse effect on the general

practitioner.

THIRD, the practice of medicine and the practice

of law are so different that the experience of the medical

profession in developing plans of specialization are not of

great benefit to lawyers. Except in a few areas, de facto

legal specialization has not been conducted in the narrow

fields typical of medical specialization, but rather in

broad areas which frequently cut across several fields of

law. Our committee has already concluded that while the

experiences of the medical profession do provide some use-

ful analogy to the bar's problems in the area of specialization,

the significant differences in the legal profession and the

medical profession limit the use of the analogy.

FOURTH, because of the inexperience of the legal

profession in dealing with specialization, a broad, flexible

program of regulation is desirable initially so as to permit

unforeseen problems which develop in practice to be solved

practically and fairly. No matter how much care is now

-14-

devoted to a specific plan for the certification and recog-

nition of legal specialization, such programs cannot possibly

provide against many practical problems which will develop.

Pitfalls will inevitably occur, means of adjusting those

deficiencies will have to be worked out, and the program

ultimately adopted will unquestionably have to be modified

by experience. As time goes on, a body of experience will

develop which will inevitably lead to better criteria for

providing quality legal services in specialized areas.

It is only when those developments have occurred

that consideration should be given to the subsidiary issues

which presently occasion so much concern and dialogue

among lawyers debating the "HOW" of legal specialization.

It is not timely now finally to determine the extent to

which the certified specialist should be required to limit

his practice, and the extent to which uncertified lawyers

should be permitted to practice in specialized areas.

FIFTH, the determination of continued proficiency

is closely related to the question of initial certification.

What is the law today in a specialized area may not be the

law tomorrow. The lawyer who does not keep up cannot be

called proficient. If representations of proficiency are

to be made to the public with bar sanction, the certifica-

tion system should also provide for an assurance of continued

-15-

expertness.

SIXTH, the initial requirements for obtaining a

certificate of competence in a particular field of law

should not be excessively difficult. "Grandfather clauses"

should be applied to those presently able to show appropriate

experience in the branch to be certified as a legal specialty.

As time goes on, however, certification of legal specializa-

tion would naturally become more difficult.

SEVENTH, the fields for certification of legal

competence at the commencement of the program should be

rather broad. For example, it might be appropriate to have

the whole field of business law included as a specialty.

When the particular program of legal specialization catches

hold and develops, the definition of the areas of legal

specialization can be further defined.

EIGHTH, plans of recognition and regulation of

legal specialization should be developed on a state-by-

state basis. The nature of legal practice differs from

state to state, and there are significant differences :among

the states in both substantive and procedural law.

The practice of law is now regulated almost ex-

clusively within the various states. Both initial admission

and professional discipline are handled at the state level.

Regulation of specialization is intrinsically related to

-16-

those other aspects of the regulation of the practice of

law. The fact that the power to regulate the legal pro-

fession now exists only at the state level compels me to

believe that state level regulation of legal specialization

is the only way in which this desirable reform will be

achieved. State participation certainly is a necessary

and obvious ingredient of any acceptable plan.

At the same time, I do believe that fifty (50)

different systems of specialization in the fifty (50)

different states of the United States would create an

undesirable situation, serving neither the public nor the

profession. Obviously, a model code for the recognition

and certification of specialists in the legal profession

should be drafted at the national level for adoption at

the state level. In this way, a substantial degree of

uniformity among the systems so adopted could ultimately

be achieved. Many states are now actively considering

whether such states should promulgate their own plans for

the certification and regulation of legal specialists

without waiting for action by the American Bar Association.

Among those states are Florida, Virginia, Oregon, Colorado,

California, Missouri, Pennsylvania, New Jersey, and several

others.

A system for the recognition and regulation of

legal specialization by a state bar on a non-uniform basis

-17-

would contain deficiencies that would not be present in a

national system. Of course, if uniform standards for

certification of specialists should be generally adopted

in the various states, much of the demand for a national

system of certification of specialists would be obviated.

Certainly, the quality of the legal specialists certified

should be as uniform on a nationwide basis as practical,

just as it is desirable that the standards of initial

admission of lawyers to practice throughout the states be

uniform. But the necessity for a national standard of

competence for legal specialists is no greater in degree

than the necessity for a national standard for the original

admission of lawyers to the practice.

In addition, effective liaison among the states

and with the American Bar Association should quickly provide

a very broad range of experience; hence, a quicker solution

of the problems which will inevitably arise can be obtained.

If regulation is at the state level, the regulatory body

certainly will be much more flexible and responsive in

reacting to emerging problems than if the regulatory body

is placed at the national level.

NINTH, legal specialization would be enhanced

if the existing Canons of Ethics were amended to provide:

(a) A lawyer should not knowingly assume legal

-18-

representation beyond his then existing competence, or that

he cannot then perform without unreasonable risk or expense

to his client;

(b) A certified specialist should encourage the

referred client to return to the referring lawyer for the

handling of his future legal needs, and he should take no

action to retain the referred client himself. However, the

client must remain free to select his own lawyers in the

future, including the referred lawyer;

(c) Legal specialists certified by a state may

give appropriate and dignified notice to other lawyers and

to the public that they are certified legal specialists,

designating the particular branch of law in which they are

so certified.

TENTH, and finally, and as a means for the imple-

mentation of the previous nine positions, it seems imperative

to me that the American Bar Association create a standing

committee on specialization with the following responsibilities:

(a) To draft, in the nature of a model code, for

adoption by the House of Delegates a "Statement of Standards

and Practices for Regulating and Certifying Legal Specialists"

for use by the various states in the adoption of their own

specific plans, and to thereafter continuously recommend

improvements therein.

-19-

(b) To collect data, make surveys, and generally

act as a clearing house for information and experience ob-

tained from the states in certifying and regulating specialists.

(c) To conduct studies, make specific recommenda-

tions and generally assist state bar organizations in developing

their respective specialization programs.

(d) To make recommendations for changes in the

Canons of Ethics of the American Bar Association needed to

accommodate the specific plans of voluntary specialization

adopted by the various states.

(e) To study and further consider the feasibility

of a national plan for the certification and regulation of

specialists, so that if at any future time the adoption of

a national plan becomes practical, the best such plan which

can be devised will be available for consideration.

In conclusion, I submit that the organized bar

just can no longer ignore or fail to correct the deficiencies

in the structure of the legal profession which presently

restrict the availability of legal specialists to the average

citizen who needs specialized legal services.

In advocating the case for regulated specialization,

I readily concede that there are numerous problems, some real

but some obviously only imagined or feared. In resolving

those problems, the organized bar must keep always in mind

that the issue is not whether we will have specialization.

-20-

Specialization is already upon us, and it will inevitably

increase. The sole and only issue before the organized bar

is whether the legal profession will have regulated speciali-

zation. I submit that the Mississippi State Bar and other

state bar associations should promptly take the position

that the best interest of the public and the legal profession

will be served by no longer permitting the unregulated develop-

ment of legal specialization.

The time to act is here and now.

(end)

-21-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 25

VOLUME II

Pt.

REMARKS BY CHESTERFIELD SMITH BEFORE THE
ADMINISTRATIVE LAW SECTION ON AUGUST 6, 1968

Recognition and regulation of specialization in

the practice of law is not a new subject for the legal pro-

fession, nor for the American Bar Association.

In 1954, the House of Delegates adopted the follow-

ing resolution:

RESOLVED:

1. That the American Bar Association ap-
proves in principle the necessity to
regulate voluntary specialization in
the various fields of the practice of
the law for the protection of the pub-
lic and the bar; and

2. That the American Bar Association ap-
proves the principle that in order to
entitle a lawyer to recognition as a
specialist in a particular field, he
should meet certain standards of ex-
perience and education; and

3. That the implementation, organization,
and financing of a plan of recognition
to carry out such principles is dele-
gated to the Board of Governors, subject
to final approval by the House of Dele-
gates.

Since that time, several efforts have been made in

the House of Delegates to implement that resolution without

success. In spite of the apparent unwillingness of the American

Bar Association to regulate specialization, the fact of special-

ization in the law practice has continued to expand.

In August, 1967, the Committee on Availability of

Legal Services recommended to the House of Delegates that the

Board of Governors renew its efforts to implement the 1954

resolution providing for the recognition and regulation of

voluntary specialists in the various fields of the practice of

the law for the benefit and protection of the public and of

the bar. As a result of action by the House of Delegates on

that recommendation, the Board of Governors established a special

7-man committee on specialization directing it to assemble

and study information relevant to all aspects of voluntary

specialization, and if the committee should determine that

the promulgation of a plan of voluntary specialization is desir-

able, to prepare a plan in various fields of the practice of

law for the consideration of the Board of Governors and the

House of Delegates.

The members of that Committee are Louis Davidson of

Chicago, Illinois, C. B. Dutton of Indianapolis, Indiana,

Charles Joiner of Detroit, Michigan, Leonard Janofsky of Los

Angeles, California, William Marschall of San Angelo, Texas,

and Charles Post of Boston, Massachusetts. I am from Lakeland,

Florida, and I serve as Chairman of the Committee.

The organizational meeting of the committee was held

in January, and subsequent meetings have been held in March,

-2-

April, May, June and September, 1968. All sections and all

other committees of the American Bar Association, all other bar

interest groups which came to the knowledge of the committee,

whether or not they are affiliated with the American Bar Associa-

tion, all state bar associations, and all large local bar associa-

tions, were invited by the committee to present their views on

the subject of whether it was desirable that a plan of formal

recognition of voluntary specialization by the legal profession

be promulated, and if such a plan should be recommended, what

form it should take. A public hearing was held in Chicago on

Saturday, April 6, at which time the committee received many

position and letter statements from sections, committees, lawyers

in their individual capacity, state and local bar associations

and other lawyer interest groups setting forth their views on

this complex and difficult subject. Many of those statements

and letters were reflective, studious, and thought-provoking.

After the public hearing, the committee mailed a letter

to approximately 1700 leaders of the Sections of the American

Bar Association requesting their advice and counsel on the

subject of voluntary specialization. The response thereto was

amazing. The meaningful replies received as a result of that

mailing will undoubtedly be very helpful to the committee in

reaching its final conclusions.

It is of course quite obvious that the Committee is

just getting well underway in its assigned task, and no final

or even tentative conclusions have been reached by the Committee

as a group. In such a situation, a reasonably prudent lawyer who

serves as Chairman of a committee of seven zealous but fiercely

independent lawyers should refuse to take positions, should

talk around and on both sides of all issues, and be very careful

not to stick his neck so far out that his Committee might later

chop it off.

I am neither reasonable nor prudent, as a trial lawyer

from a small county-seat in Central Florida just doesn't get

along by being reasonable or prudent. I shall therefore charge,

giving you my own individual thoughts. I hope that the Committee

will later accept some of them, but I am dead sure that the

Committee will never agree to all that I say.

As an individual lawyer, I have now firmly concluded

that regulation of specialization in the law practice will im-

prove and increase the availability of legal services to the

general public. While recognizing that beneficial result, I have

also become firmly convinced that the regulation of specialization

will also create certain problems for both the public and the

legal profession.

Many lawyers still at least pay lip service to the con-

cept that a lawyer can be a jack of all legal trades. As an in-

dividual lawyer, I find that in fact modern lawyers cannot be

-4-

fully proficient and efficient in all fields of the law, and

that most lawyers now clearly accept that fact by self-imposed

restrictions on their own practice.

Some degree of specialization is properly an existing

necessity of modern law practice. The complexity of our society

and the increasing participation therein by government makes it

clear to me that no individual lawyer can be proficient in the

performance of all legal tasks. I believe that our ever-

expanding economy will inevitably lead to an ever-increasing

pattern of specialization by practicing lawyers, and that the

refusal of the organized bar to regulate specialization in the

law practice will neither terminate nor slow down the existing

de facto legal specialization.

After reaching those conclusions, it was apparent to

me that the organized bar ultimately has little choice other

than an intelligent regulation of specialization in the practice

of law.

It is true that we could, as many lawyers advocate,

simply allow the present trend to continue to its ultimate

destiny. This course I have rejected on the ground that the

organized bar has a duty to both the public and lawyers generally

to correct or mitigate the problems arising out of the unregu-

lated but de facto specialization which now exists. It seems to

-5-

me that if specialization in law is to be implicitly sanc-

tioned by the organized bar, the integrity of the legal profession

requires that the organized bar take every possible measure to

protect the public who rely upon that implied sanction.

Alternatively, we can discourage the spread of speciali-

zation. Again, it is my judgment that if we tried to reverse

the existing trend, the result would be disastrous with the

public inevitably turning to specialized laymen for expertness.

It is my belief that the only reasonable choice is

to wholeheartedly encourage the existing trend to specialization

in the law practice, but by regulations to so channel it that

our traditional ethical concepts will not be impaired.

While I believe that specialization in the practice

of law actually does improve the quality of legal services

available to the public and therefore should be encouraged,

I do find that specialization is not synonymous with expert-

ness. The certified specialist must still be a lawyer and

not a mere legal technician. A competent lawyer is not required

to know the law without research; he must only have the abi-

lity to find and evaluate the law. Even a true expert, with

substantial repetitive experience in a given field, will rarely

if ever, give a firm commitment as to the law on a particular

point without research. His advantage arises from the shorter

research time required.

Under the existing system of unregulated but de facto

specialization, lawyers who do in fact specialize are of course

only self-proclaimed specialists. A lawyer who styles him-

self a specialist in one field of law may or may not have

competence therein. If a lawyer is to specialize in one field

of the law, it is hardly arguable that he should meet certain

minimum standards of experience and education, It thus seems

to me that ultimately certification must be an integral part

of any complete plan or program designed to regulate speciali-

zation in the law practice. A bar represented expertness, or

even a bar countenanced self-certification of expertness, that

does not in fact exist, would be far worse in its effect upon

the public image of the organized bar than any of the present

detriments to that image attributable to the non-regulation

of specialization. Certainly all lawyers now know that the

attempted performance of professional services by lawyers who

are individually incompetent to perform such services has

brought disfavor on the legal profession as a whole.

Shortly after our committee began its work, I quickly

concluded that self-recognition of special proficiency which

is not verified and factual is not the ultimate answer, nor is

it even now an acceptable substitute for certification. The

difficulty with self-certification, apart from the case of the

lawyer of little integrity and no actual expertise who will

-7-

claim expertise for self-aggrandizement, is with the lawyer who

honestly believes that he is qualified for specialized practice

but who would be rated as a novice by those lawyers clearly

entitled to accreditation as experts. Those of you in compli-

cated and specialized administrative law know this breed of

cats well.

The public is entitled to much more than unregulated

specialization based upon self-certification. If the public

image of the organized bar is to be unblemished, lawyers as

a group must exercise a high degree of responsibility to those

far less informed members of the general public seeking a

lawyer and who rely or may tend to rely upon what may be a

false claim of special proficiency.

Lawyers who undertake legal services which they are

individually incompetent to perform lend credence to the claim

of lay groups that attempts by the bar to deter the unautho-

rized practice of law by specialized laymen is motivated solely

by the economic self-interest of the complaining lawyers. I

believe that if the organized bar can provide an effective

method whereby the public can identify and select competent

legal specialists, the chance that a person needing legal ser-

vices will turn to well-publicized specialized laymen, rather

than to lawyers, will be minimized.

Another possible benefit which might well flow from

the recognition and regulation of specialists is the increased

competence of lawyers as a group. It appears to me that an

increase in the number of lawyers who specialize in and of

itself would improve the overall quality of the total services

rendered by lawyers to the public, simply because those lawyers

who specialize will have an opportunity to concentrate their

experience and their continuing legal education.

Limitation of practice to a specified branch of the

law by experienced practitioners of demonstrated capacity

seems to me to be clearly in the public interest, and no sub-

stantial reason why it should not be permitted has been advanced

to our committee. I personally believe that increased repeti-

tive experience which is a necessary corollary to a restricted

practice will permit those lawyers who voluntarily so choose

to perform quality legal services in their specialized field of

the law at a decreased consumption of their time, with resultant

potential savings to their clients.

Information presented to our committee indicates that

some lawyer interest groups have created an impression among

some members of the public that their members are certified

legal specialists. It seems to me that the actions of such

interest groups are less likely to be governed in that regard

-9-

by the legitimate objectives of the organized bar as a whole,

or by the best interests of the public. I believe that the

organized bar in its entirety should formulate an appropriate

program to regulate specialization in the law practice in order

that the lawyers who presently specialize do not develop into

narrow and autonomous self-policing units. The experience of

the medical profession in that regard leads us to believe that

this possibility is a real and present danger. General super-

vision of lawyer interest groups should be maintained at all

times within the organized bar as a whole in order to prevent

a similar fractionalization of the legal profession.

Other than in the area of fractionalization of the

profession, the practice of medicine and the practice of law

are so different that the experience of the medical profession

in developing plans of specialization is not of great benefit

to lawyers. With few exceptions, the de facto legal specializa-

tion as we have known it has not been conducted in the narrow

fields typical of medical specialization, but rather in broad

areas which frequently cut across several fields of law. While

the experiences of the medical profession does provide some

useful analogy, the significant differences in the legal pro-

fession and the medical profession do limit the use of the

analogy.

After working on legal specialization for eight months,

-10-

I am convinced that any specific program of regulation will

be opposed by some lawyers, because those lawyers will object

to the time and effort they feel will be involved in obtaining

certification. Other lawyers will fear that they will not be

able to qualify in a particular field of the law in which they

are interested, especially if the certification procedure im-

poses high standards. Many general practitioners who do not

specialize will fear a loss of practice to those who will

qualify as legal specialists and who are so certified. A few

lawyers presently specializing will be apprehensive that they

may be required by regulation to give up work which they are

now doing in legal areas outside of their own specialty. Many

lawyers, whether specialists or generalists, also will fear

that a program of certification would tend to create narrow

specialties and thus make it more difficult to assure adequate

service to clients in areas which overlap several specialties.

Those obstacles, fears, and objections are not to be

casually brushed aside. Such questions as what is to be the

certifying authority, what standards are to be established, what

should be done about existing specialists for whom it might be

an unreasonable burden to impose the same strict certification

requirements, and what means are to be utilized to inform the

general public of the qualifications of a certified legal

-11-

specialist, are areas of great concern to our committee,

occasioning many long hours of discussion, and we have not yet

reached a consensus. The belief that specialization in the law

practice should be regulated does not force me to deny that

there are major obstacles to its effective implementation; I

readily admit that if my recommendations are adopted, signifi-

cant changes will eventually occur in the existing form of the

practice of law.

In considering the merits of official recognition

and regulation of specialization in the law practice, I have

attempted to analyze the benefits and detriments which might

be obtained therefrom in the context of specific programs.

Our committee is now considering at length the limitations

which may be placed upon practice by a certified specialist.

We have recognized that under existing law the standard of

care required for lawyers of certified status would be increased

with additional exposure to liability for error and omissions.

While the committee has not yet taken a position, as an indivi-

dual member of that committee, I have become convinced that

those items, and many more, should be resolved by experiment,

by trial and error, by pilot programs, before I can state with

finality that a particular plan of voluntary specialization is

most desirable. It is for that reason alone that I now recommend

that no one plan at this time should be promulgated for nationwide

-12-

use. I strenously urge that the organized bar promptly obtain

appropriate and adequate experience in the regulation of legal

specialization by experimenting with varying proposals at the

state level. Then, and only after a full evaluation of the

results obtained in such experiments, will it be timely to

consider a uniform plan for use in all jurisdictions.

The nature of legal practice differs from state to

state, and there are significant differences among the states

in both substantive and procedural law. The practice of law

is now regulated almost exclusively within the various states.

Both initial admission and professional discipline are handled

at the state level. Regulation of specialization is intrinsi-

cally related to those other aspects of the regulation of the

practice of law. The fact that the power to regulate the legal

profession now exists only at the state level compels the com-

mittee to believe that state level regulation of specialization

is the only way in which this desirable reform will be achieved.

State participation certainly is a necessary and obvious ingre-

dient of any acceptable plan. Because so many of you in ad-

ministrative law are based in Washington, I point out that the

District of Columbia is a state in the reference I here make.

At the same time, I recognize that fifty different

systems of specialization in the fifty different states of the

-13-

United States would create an undesirable situation, serving

neither the public nor the profession. It is obvious that

long before this occurs a model code for the recognition and

certification of specialists in the legal profession based

upon the experience of those states which have promulgated plans

of their own should be drafted by the American Bar Association

at the national level for adoption by the various states. In

this way, a substantial degree of uniformity among the systems

so adopted could ultimately be achieved. Several states are

now actively considering whether such states should promulgate

their own plans for the certification and regulation of legal

specialists without waiting for action by the American Bar

Association. Among those states are California, Colorado,

Florida, Illinois, Missouri, New Jersey, Oregon, Pennsylvania,

Virginia, Wisconsin, and several others. Many others, in-

cluding the District of Columbia, have committees working on

the problems involved, and possible solutions thereto.

A system for the recognition and regulation of spe-

cialization in the law practice by a state bar on a non-uniform

basis admittedly would contain deficiencies that would not be

present in a national system; however, those deficiencies are

not dissimilar to those arising from state rather than national

certification of lawyers for initial admission to the bar. Of

course, if uniform standards for certification of specialists

should be generally adopted in the various states, much of the

demand for a national system of certification of specialists

-14-

would be obviated. Certainly, the quality of the legal spe-

cialists certified should be as uniform on a nationwide basis

as practical, just as it is desirable that the standards of

initial admission of lawyers to practice throughout the states

be uniform. But the necessity for a national standard of com-

petence for legal specialists is no greater in degree than the

necessity for a national standard for the original admission

of lawyers to the practice.

In addition, effective liaison among the states and

with the American Bar Association should quickly provide a

very broad range of experience; hence, a quicker solution of

the problems which will inevitably arise can be obtained. If

regulation is at the state level, the regulatory body certainly

will be much more flexible and responsive in reacting to emerging

problems than if the regulatory body is placed at the national

level.

While I have as an individual member of the committee

concluded that the promulgation for a plan of specialization

in the law practice by the American Bar Association on a nation-

wide basis is not desirable at this time, I do wish to assure

the members of the Section of Administrative Law that I reached

that conclusion only after carefully studying drafts of several

different proposals. Our committee has prepared a national

plan which I believe warrants future study and consideration,

-15-

but I individually am unable to recommend its adoption at

this time.

During our deliberations, the committee has also

drafted a model code for use by the various states in the adop-

tion of their own specific plans of specialization in the law

practice. That "Statement of Standards and Practices for

Regulating and Certifying Legal Specialization", is also

worthy of study by any state interested in the adoption of a

pilot program on specialization, but again I am not willing

to recommend that the American Bar Association promulgate it

as a model code for use by the states, until pilot programs

of specialization in the practice of law have been instituted

by those states wishing to experiment and the results thereof

evaluated.

For the guidance of those states who do conclude to

promulgate a plan of their own for regulating specialization

in the law practice, I recommend on the bases of my work to-date

that the following minimum provisions be included:

1. Participation therein should be on a completely

voluntary basis.

2. A certified specialist should encourage the

referred client to return to the referring lawyer for the

handling of his future legal needs, and he should take no

-16-

action to retain the referred client himself. However, the

client must remain free to select his own lawyer in the future,

including the referred lawyer.

3. Certified legal specialists should be permitted

to give appropriate and dignified notice to other lawyers and

to the public that they are certified legal specialists, de-

signating the particular fields of law in which they are so

certified.

4. Any lawyer, alone or in association with any

other lawyer, should have the right to practice in any field

of the law, even though he is not certified therein; any law-

yer, alone or in association with any other lawyer, should

also have the right to practice in all fields of law, even

though he is certified in a particular field of law.

5. A lawyer may be certified in more than one

field of the law if he meets the standards established there-

for.

6. All responsibilities and privileges derived

from the certification as a specialist should be individual

and may not be attributed to or fulfilled by a law firm.

7. Any lawyer may publish in reputable law lists

and legal directories a statement that his practice is con-

fined to one or more fields of law, whether or not he is

certified as a specialist therein.

-17-

8. Appropriate safeguards to insure continued

proficiency as a specialist should be provided.

9. Adequate financing to cover the cost of ad-

ministration should be derived from those who are certified

as specialists.

Realistically, I admit the possibility that the

transition from the present unregulated specialization to a

system of officially recognized and regulated specialization

may cause economic hardship to present practitioners in indi-

vidual cases, particularly if the program adopted by a parti-

cular state permits certified specialists to notify the general

public of their certification. For that reason, I urge that

initially a state concluding to regulate specialization should

adopt a broad, flexible program so as to permit the unforeseen

problems which will develop in practice to be handled.

I do believe that the determination of continued

proficiency is closely related to the question of initial

certification. What is the law today in a specialized area

may not be the law tomorrow. The lawyer who does not keep

up cannot be called proficient. If representations of pro-

ficiency are to be made to the public with state bar sanction,

I urge that the certification system also provide for an as-

surance of continued expertness.

-18-

For many practical reasons, the initial requirements

for obtaining a certificate of competence in a particular field

of law should not be excessively difficult. "Grandfather

clauses" appropriate for each state plan should be applied

to those presently able to show adequate experience in the

branch to be certified as a legal specialty. As time goes on.

however, certification of legal specialization would naturally

become more difficult.

The fields for certification of legal competence at

the commencement of the program should be rather broad. For

example, it might be appropriate in a particular state to have

the whole field of administrative law included as a specialty.

That would not be true in most states. When the particular

program of legal specialization catches hold and develops, the

definition of the areas of specialization in the law practice

may be further refined.

Above all, I urge that any plan of regulation be

consistent with recognition of the importance of a broad legal

education and minimize any adverse effect on the general prac-

titioner. The importance of the lawyer in general practice,

historically and currently, to the public and to the legal pro-

fession, can hardly be overstated. I am unalterably convinced

that any plan for the regulation of specialization must preserve

the usefulness and effectiveness of general practicing lawyers.

-19-

The contribution of the general practitioner in the ongoing

activities of the organized bar is and has been monumental.

General practice is one of the most difficult prac-

tice areas in the law. It requires being currently familiar

with several subject areas of law the areas varying in dif-

ferent geographic areas. Many continuing legal education

programs are especially designed to help the general practicing

lawyer to keep up to date in those law areas. It is readily

apparent that any acceptable system for the regulation of

specialists must not tend to eliminate county-seat lawyers,

nor benefit, by reason of provisions inherent in the parti-

cular system, the middle and large sized law firms to the

detriment of small firms and individually practicing lawyers.

While the committee recognizes that an evaluation

of the experience gained by those states who do regulate

specialization in the law practice might later prove these

positions unwarranted, the foregoing conclusions reached by me

are included in my remarks in order that those who would wish

to educate me during the panel discussion will have the issues

before them.

It is apparent to me that no matter how much care

is now devoted to a specific plan of regulation of specialized

law practice, such program cannot possibly provide against

many practical problems which will develop. Pitfalls will

-20-

inevitably occur, means of adjusting those deficiencies will

have to be worked out, and the program ultimately adopted

will unquestionably have to be modified by experience. As

time goes on, a body of experience will develop which will

inevitably lead to better criteria for providing quality legal

services in specialized areas.

It is only when those developments have occurred

that consideration should be given to the subsidiary issues

which presently occasion so much dialogue among lawyers de-

bating the "HOW" of legal specialization. The organized bar

needs experience at all levels before final positions are

taken.

The most frequently voiced objection to regulation

of specialization presented to our committee is its supposed

harmful effect upon the sole practitioner and the small part-

nership in rural areas. Everyone agrees that the big firm

lawyer already has the benefits of specialized practice. They

argued that large law firms in general are not adversely af-

fected by the failure of the bar to regulate specialization,

because a large law firm usually has little difficulty in

making the availability of the specialized services of its

individual lawyers collectively known to its prospective

clients, and that regulation would only encourage clients to

leave general practitioners to go to those large conglomerates

-21-

of legal specialists. I personally do not agree with that

argument as I believe that recognition and regulation of legal

specialization will tend to equate the sole practitioner and

small law firm with the large law firm in making specialized

services available to clients.

Realistically, one of the principal reasons for the

success of large law firms is that they have had no difficulty

in communicating to the public that they offer specialized ser-

vices, and that the collective abilities of their lawyers enable

them to be specialists in every field of the law. I believe

that the official recognition of specialists would enable the

public to learn of specialization by certified sole practi-

tioners or by lawyers in the small firms. Certainly, it would

aid those lawyers in informing the public that specialized

legal services can be made available by general practitioners

as well as by large law firms. Frankly it seems to me that

official regulation of specialization will enable the small

practitioner more effectively to compete with the large law

firms, and that it may well be the best means available to

insure the ultimate survival of the independent sole practitioner.

Admittedly, many of my statements are argumentative.

Other assertions upon challenge are difficult or impossible to

prove. Nevertheless, if the American Bar Association is to

discharge its entrusted responsibilities, it must ultimately

take positions based upon an application of sound judgment ob-

-22-

jectively applied to available facts, to all of the surveys,

to all of the legal articles and arguments, to all of the

opinions contained in the position papers and oral and written

statements of position which have been directed to the matter

of regulation of specialization in the practice of law. This

is the task which our committee is going to do to the best

of its ability.

In advocating the case for ultimate regulation by

the states of regulated specialization in the law practice,

I quickly concede that some of the arguments always presented

against any specific program of regulation are real, but I

do believe that most of them are only imagined. I have found

that the need for regulated specialization in many states is

minimal, but in other states, I believe that the public interest

demands that some action on the matter be taken immediately

by the organized bar.

In encouraging the states with real need for regu-

lated specialization in the practice of law to seek solutions

to the numerous practical and theoretical problems involved,

the American Bar Association must keep in mind that the issue

it is deciding is not whether the legal profession will have

specialization. Specialization is already here, and it will

inevitably increase. The sole and only issue before the Ameri-

can Bar Association is whether specialization in the practice

-23-

of law will be regulated or unregulated.

In conclusion, I believe that while specialization

in the practice of law should be regulated and controlled for

the benefit of the public and the legal profession, at this

time the promulgation by the American Bar Association of a plan

for voluntary specialization in the various fields of the law

on a nationwide basis is not desirable. The inexperience of

the legal profession in regulating specialization, the diffi-

culty of defining fields of specialization, the want of objec-

tive criteria for judging legal proficiency, the uncertain cost

of administration, and the inability of the organized bar posi-

tively to determine that lawyers who are at present either

generalists or specialists will not be adversely affected by

such regulation to the ultimate detriment of the public make

it desirable that pilot or experimental programs be instituted

at the state level before any one single plan is endorsed by

the American Bar Association. The ever-increasing pattern of

specialization in the practice of law has beneficial aspects,

but at the same time, it has created certain multiple problems.

The continuation of the present system of unregulated specializa-

tion will not eliminate those problems. Plans for the regula-

tion by the several states of voluntary specialization in the

law practice should at the option of that state be therefore

-24-

permitted in order that the organized bar as a whole might

have the benefit of the experience thus obtained.

Secondly in states which determine that it is

presently undesirable to promulgate a plan for the regulation

of specialization in the law practice, special attention should

nevertheless be given in those states to ways and means whereby

the availability of lawyers possessing unusual legal skills

may be made known to the public. Among those are:

(a) Lawyers who specialize in fields of law

which require specialized technical non-legal training.

(b) Lawyers who specialize in fields of law

which affect a very small or extremely narrow segment of

the public.

(c) Lawyers who specialize in fields of law

requiring a knowledge of a foreign language.

(d) Lawyers who specialize in fields of the

law requiring information and reference material not readily

available to all lawyers.

(e) Lawyers who specialize in fields of law

that are extremely complex.

Third, in order to assist lower income and middle income

members of the public in more easily obtaining competent legal

services, lawyers participating in legal aid programs and

lawyer referral systems should be allowed by all states to

set forth the fields of law in which they consider themselves

competent and in which they are willing to accept employment

in such program or system.

-25-

I also believe that the existing Canons of Ethics

should be amended to provide:

(a) A lawyer should not knowingly assume legal

representation beyond his then existing competence, or that

he cannot then perform without unreasonable risk or expense

to his client;

(b) A lawyer has a duty to maintain and enhance

his legal ability by periodically participating in those con-

tinuing legal education programs essential to the proficient

handling of the legal work of his particular clients.

These are my views, and since I am first my colleagues

on the panel are invited to attack them. The purge of debate

will undoubtedly improve them, and even though I sound posi-

tive and firm, I really am neither. I hope to improve on my

thoughts from today discussion, and from many other similar

discussions, before I finally conclude my work.

Thank you very much.

-26-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 26

VOLUME II

Address of:

Before:

Title of
Address:

Date of
Delivery:

Chesterfield Smith, Lakeland, Florida,
Chairman, American Bar Association Special
Committee on Specialization

Omaha Bar Association, Omaha, Nebraska

"Specialization in the Law Whither Now?"

Thursday, September 12,.1968.

Recognition and regulation of specialization in

the practice of law is not a new subject for the legal pro-

fession, nor for the American Bar Association.

In 1954, the House of Delegates adopted the following

resolution:

RESOLVED:

1. That the American Bar Association ap-
proves in principle the necessity to
regulate voluntary specialization in
the various fields of the practice of
the law for the protection of the pub-
lic and the bar; and

2. That the American Bar Association ap-
proves the principle that in order to
entitle a lawyer to recognition as a
specialist in a particular field, he
should meet certain standards of experience
and education; and

3. That the implementation, organization,
and financing of a plan of recognition
to carry out such principles is dele-
gated to the Board of Governors, subject
to final approval by the House of Delegates.

Efforts were made in the House of Delegates in

1954 and again in 1962 to implement that resolution without

success.

In August, 1967, the Committee on Availability of

Legal Services recommended to the House of Delegates that

the Board of Governors renew its efforts to implement the

1954 resolution providing for the recognition and regulation

of voluntary specialists in the various fields of the practice

of the law for the benefit and protection of the public and

the bar. As a result of action by the House of Delegates on

that recommendation, the Board of Governors established a

special seven-man Committee on Specialization, directing it

to assemble and study information relevant to all aspects of

voluntary specialization, and if the committee should determine

that the promulgation of a plan of voluntary specialization is

desirable, to prepare a plan in various fields of the practice

of law for the consideration of the Board of Governors and

the House of Delegates.

e organizational meeting of the Spe 'l Commit-

tee on Speciali tion was held in Januar and subsequent

meetings were held in arch, April ay and June. Another

meeting of the committee wi e held Saturday and Sunday.

All sections and all ittees o the American Bar Association,

all other bar J erest groups which ha come to our knowledge,

whether o not they are affiliated with the rican Bar

sociation, all state bar associations, and all Large local

bar associations, were invited by our committee/to present

their iews on the subject of whether it is desirable that

a plan o formal recognition of voluntary Weecialization by

the legal ofession be promulgated, and if such a plan should

be recommended what form it should taje. A public hearing

was held by the committee in Chicago/on Saturday, April 6,

at which time the smmittee received many position and letter

statements from sections, committees, lawyers in their indi-

vidual capacity, state ar ass ciations and other lawyer

interest groups setting f t their views on this complex

and difficult subject. Ma pf those statements and let-

ters were reflective, stu ious, and thought-provoking.

Undoubtedly, the views advanced a tthat public hearing

will be of inestimable help to us in reaching our final

conclusions.

After the/public hearing, the mmittee mailed

a letter to some 1700 leaders of the Sectio s of the American

Bar Association /equesting their advice and c unsel on the

subject of voluntary specialization. The respo se thereto

has been ama ing. An extremely large number of m aningful

replies hav been received as a result of this mailing, and

those replies are now being carefully studied by our \kmmittee.

To wade through the mass of literature and ot\er

material we have assembled on the subject of specialization

is obviously a monumental and time consuming task which will

take several Trore months of committee w Our committee

does hope sometime L.the fall o inter to disseminate to

all those who have express substantial interest in our

assignment our tenta i e conclusi s. After considering

comments there p from wherever received, a consensus of the

committee ill hopefully be presented to the ~ese of Dele-

gat for action sometime in 1969.

IAs ean s, A9ur committee -oeri~only has only

really recently embarked upon its assigned task, and none

of the members of our committee have yet reached a final

position on the subject. As Chairman of the committee, I

sincerely believe that all committee members still have an

open mind on the subject, amenable to argument, persuasion,

and further study. I am even more firmly persuaded that the

tentative views hereafter expressed by me are not now endorsed

or accepted by the committee as a whole, or any one or more

of its other members, and may never be. In fact, I am ab-

solutely positive that many of them will not ultimately be

accepted by the committee.

While any reasonably prudent lawyer would therefore

promptly acknowledge that taking an individual position at

this time is premature, and then simply discuss the pros and

cons of the subject, or outline the problems that must be

solved without discussing possible solutions, I being neither

reasonable or prudent shall throw caution to the winds, forget

that I am Chairman of a committee composed of zealous and

fiercely independent men who may never concur with me, and

bravely set forth as an individual practitioner from a

moderate size community in central Florida to give you the

benefit of the tentative conclusions which I personally

have reached at this point in time of our overall effort.

must recognize tha-tese tentative conclusions

are at best only e sta ng point for the final conclu-

sion that I willL Ivive lly reach on recognition of vol-

untary spe ialization in the lawpsatctice; certainly I do

no t this time have a specific plan whickd- .advocate.

While I recognize that regulation of specialization

in the law practice may well increase the availability of

legal services to the general public, I am firmly convinced

that such regulation will create certain problems for both

the public and the legal profession.

tWteAlost lawyers still at least pay lip service

to the obsolete myth that a lawyer can be a jack of all

legal trades, I submit that in fact modern lawyers cannot be

fully proficient and efficient in every field of the law, and

t-at most lawyers now clearly accept that fact by self-

imposed restrictions on their own practice.

At least some degree of specialization is obviously

an existing necessity of modern law practice, and it properly

-5-

should be. The complexity of our society and the increasing

participation therein by government make it clear that no

individual lawyer can be proficient in the performance of

all legal tasks. I therefore believe that our ever-expanding

economy will inevitably lead to an ever-increasing pattern

of specialization by practicing lawyers in a limited number

of the various fields of the law practice. It also appears

to me that an increase in the number of lawyers who specialize

in and of itself would improve the overall quality of the

total services rendered by lawyers to their clients, simply

because those lawyers who specialize will have an opportunity

to concentrate their experience and their continuing legal

education.

While I believe that specialization in the practice

of law may thus improve the quality of legal services rendered

by the particular lawyer thus specializing to his clients, I

do find that specialization is not synonymous with expertness.

The certified specialist must still be a lawyer and not a

mere legal technician. A competent lawyer is not required to

know the law without research; he must only have the ability

to find and evaluate the law. Even a true expert, with

substantial repetitive experience in a given field, will

rarely if ever, give a firm commitment as to the law on a

particular point without research, unless his recent experiences

contain the answer. His advantage arises primarily from the

-6-

shorter research time required, as well as from his experiences.

One becomes a real expert only by both experience and con-

stant study in a particular field or fields of the law

practice extending over a period of several years, and not

by certification as a specialist. A certified or an uncer-

tified specialist may or may not be an expert.

If a lawyer is to specialize in one field of the

law, it is hardly arguable that he should meet certain mini-

mum standards of experience and education. It thus seems to

me that certification by a competent authority must be an

intregal part of any complete plan or program ultimately

promulgated to regulate specialization in the law practice.

A bar represented expertness, or even a bar countenanced

self-certification of expertness, that does not in fact

exist, would be far worse in its effect upon the public

image of the organized bar than any of the present detri-

ments to that image attributable to the non-regulation of

specialization. Certainly all lawyers now know that the

attempted performance of professional services by lawyers who

are individually incompetent to perfrom such services has

brought disfavor on the legal profession as a whole.

Shortly after getting involved in legal speciali-

zation, I quickly concluded that self-recognition of special

proficiency which is not verified and factual is not the

ultimate answer, nor is it even now an acceptable substitute

-7-

for certification. The difficulty with self-certification,

apart from the case of the lawyer of little integrity and no

actual expertise who will claim expertise for self-aggrandizement,

is with the lawyer who honestly believes that he is qualified

for specialized practice but who would be rated as a novice

by those lawyers clearly entitled to accreditation as experts.

If the public image of the organized bar is to be unblemished,

lawyers as a group must exercise a high degree of responsi-

bility to those far less informed members of the general

public seeking a lawyer and who rely or may tend to rely upon

what may be a false claim of special proficiency.

Lawyers who undertake legal services which they are

individually incompetent to perform lend credence to the

claim of lay groups that attempts by the bar to deter the

unauthorized practice of law by specialized laymen is moti-

vated solely by the economic self-interest of the complaining

lawyers. I believe that if the organized bar can provide

an effective method whereby general practitioners on behalf

of their clients can identify and select competent legal

specialists, the chance that a person needing legal services

will turn to well-publicized specialized laymen, rather than

to lawyers, will be minimized.

Almost every lawyer who has appeared before our

committee has emphasized that it is extremely important

that the lawyers who presently specialize do not develop

into narrow and autonomous self-policing units. The experience

of the medical profession in that regard leads me to believe

that this possibility is a real and present danger. A similar

fractionalization of the legal profession could ultimately

be detrimental to both the public and the specialized lawyer

interest groups, and extreme vigilance on the part of the

organized bar is warranted, whether specialization be regulated

or unregulated, in order that general supervision of all

specialized lawyer interest groups is exercised by the organized

bar as a whole.

During the public hearing Ef9the Special Committee

on Specialization, I became convinced that any specific

program of regulation will be opposed by some lawyers. Some

lawyers will object to the time and effort they feel will be

involved in obtaining certification. Other lawyers fear that

they will not be able to qualify in a particular field of

the law in which they are interested, especially if the certi-

fication procedure imposes high standards. Many general

practitioners who do not specialize fear a loss of practice

to those who will qualify as legal specialists and who are

so certified. A few lawyers presently specializing are

apprehensive that they may be required by regulation to give

up work which they are now doing in legal areas outside of

their own specialty. Many lawyers, whether specialists or

generalists, also fear that a program of certification would

tend to create narrow specialties and thus make it more dif-

ficult to assure adequate service to clients in areas which

overlap several specialties.

Those obstacles, fears, and objections are not to

be casually brushed aside. Such questions as what is to be

the certifying authority, what standards are to be established,

what should be done about existing specialists for whom it

might be an unreasonable burden to impose the same strict

certification requirements, and what means are to be utilized

to inform the general public of the qualifications of a

certified legal specialist, are areas of great concern to me.

Until those issues are resolved to my satisfaction, I shall

not recommend that the American Bar Association take a final

position on this controversial subject.

In considering the merits of official recognition

and regulation of specialization in the law practice, I have

analyzed the benefits and detriments which might be obtained

therefrom in the context of specific programs. I considered

at length the limitations which could be placed upon practice

by a certified specialist. I recognized that under existing

law the standard of care required for lawyers of certified

status would be increased with additional exposure to liability

for error and omissions. Such studies convinced me that those

items, and many more, should be resolved by experiment, by

-10-

trial and error, by pilot programs, before the American Bar

Association could determine whether or not a particular plan

of voluntary specialization was desirable. Consequently,

at this time there is no one plan which I can recommend for

nationwide use. I do believe that the organized bar can

promptly obtain appropriate and adequate experience in the

regulation of legal specialization by experimenting with

varying proposals at the state level. Then, and only after

a full evaluation of the results obtained in such experi-

ments, will it be timely to determine whether a uniform plan

for use in all jurisdictions should be adopted.

The nature of legal practice differs from state

to state, and there are significant differences among the

states in both substantive and procedural law. The practice

of law is now regulated almost exclusively within the various

states. Both initial admission and professional discipline

are handled at the state level. Regulation of specialization

is intrinsically related to those other aspects of the

regulation of the practice of law. The fact that the power

to regulate the legal profession now exists only at the state

level compels me to believe that state level regulation of

specialization is the only way in which this reform could

ever be achieved. State participation certainly is an

obviously indispensable ingredient of any acceptable plan.

Several states are now actively considering whether

-11-

such states should promulgate their own plans for the certi-

fication and regulation of legal specialists. Among those

states are California, Colorado, Florida, Illinois, Missouri,

New Jersey, Oregon, Pennsylvania, Virginia and Wisconsin. In

fact, at least twenty-five state bar associations have com-

mittees studying the matter of specialization.

A system for the recognition and regulation of/

specializat n in the law practice by a state bar on non-

uniform basis a ittedly would contain deficienci that would

not be present in a national system. Of course if uniform

standards for certific ion of specialists would be generally

adopted in the various stats, much of e demand for a national

system of certification of spe iali s would be obviated.

The necessity for a national sa rd of competence for legal

specialists is not material greaterin degree than the

necessity for a national standard for th0 original admission

of lawyers to the p ctice, and state leve21regulation of

specialization o balance seems best to me a \this time.

If regulation is placed at the state l el, the

regulator body certainly will be much more flexible and

respo ive in reacting to emerging problems than if the\

re latory body is placed at the national level.

During the deliberations of our committee, we have

considered model and state plans drafted by both committee

members and by other interested lawyers. The committee has

-12-

already rejected several national plans, and at least up

until now we are not even willing to recommend that the Ameri-

can Bar Association promulgate a model code for use by those

states wishing to experiment until after pilot programs of

specialization in the practice of law have been instituted,

and the results thereof evaluated.

However, I have reached certain conclusions of my

own, and for the guidance of those who are drafting plans Q4- Z-

their ewn for regulating specialization in the law practice,

I suggest that the following minimum provisions should be

encompassed in any plan:

1. Participation therein should be on a completely

voluntary basis.

2. A certified specialist should encourage the

referred client to return to the referring lawyer for the

handling of his future legal needs, and he should not retain

the referred client himself, except at the request of the

referring lawyer.

3. Certified legal specialists should be permitted

to give appropriate and dignified notice that they are certi-

fied legal specialists, designating the particular fields of

law in which they are so certified.

4. Any lawyer, alone or in association with any

other lawyer, should have the right to practice in any field

of the law, even though he is not certified therein; any

-13-

lawyer, alone or in association with any other lawyer, should

also have the right to practice in all fields of law, even

though he is certified in a particular field of law.

5. A lawyer may be certified in more than one

field of the law if he meets the standards established there-

for.

6. All responsibilities and privileges derived

from the certification as a specialist should be individual

and may not be attributed to or fulfilled by a law firm.

7. Any lawyer may publish in reputable law lists

and legal directories a statement that his practice is con-

fined to one or more fields of law, whether or not he is

certified as a specialist therein.

8. Appropriate safeguards to insure continued

proficiency as a specialist should be provided.

9. Adequate financing to cover the cost of admi-

nistration should be derived from those who are certified as

specialists.

also believe that the determination ofcbntinued

proficiency is ~sely related to the que oeon of initial

certification. What i he law tod in a specialized area

may not be the law tomorrow. e lawyer who does not keep

up cannot be called icient. I representations of pro-

ficiency are ebe made with state bar action, I urge that

the ce_ ification system also provide for an assurance of

-14-

Above all, I urge that any plan of regulation be

consistent with recognition of the importance of a broad

legal education and minimize any adverse effect on the general

practitioner. The importance of the lawyer in general prac-

tice, historically and currently, to the public and to the

legal profession, can hardly be overstated. I am unalterably

convinced that any plan for the regulation of specialization

must preserve the usefulness and effectiveness of general

practicing lawyers. The contribution of the general practi-

tioner in the ongoing activities of the organized bar is and

has been monumental.

General practice is one of the most difficult

practice areas in the law. It requires being currently

familiar with several subject areas of law the areas varying

in different geographic areas. Many continuing legal education

programs are especially designed to help the general practicing

lawyer to keep up to date in those law areas. It is readily

apparent that any acceptable system for the regulation of

specialists must not tend to eliminate county-seat lawyers,

nor benefit, by reason of provisions inherent in the parti-

cular system, the middle and large sized law firms to the

detriment of small firms and individually practicing lawyers.

While I recognize that an evaluation of the experience

gained by those states who do regulate specialization in the

-15-

law practice might later prove these positions unwarranted,

the foregoing conclusions reached by me are set forth here

in order that you might have the benefit of my present judg-

ment, and so that you might improve that judgment by pointing

out deficiencies therein.

It quickly became apparent to me that no matter

how much care is now devoted to a specific plan of regulation

of specialized law practice, such program cannot possibly

provide against many practical problems which will develop.

Pitfalls will inevitably occur, means of adjusting those

deficiencies will have to be worked out, and the program

ultimately adopted will unquestionably have to be modified

by experience. As time goes on, a body of experience will

develop which will inevitably lead to better criteria for

providing quality legal services in specialized areas.

It is only when those developments have occurred

that consideration should be given to the subsidiary issues

which presently occasion so much dialogue among lawyers

debating the "HOW" of legal specialization. The organized

bar needs experience at all levels before final positions

are taken.

The most frequently voiced objection to regulation

of specialization which has been presented to our committee

is its supposed harmful effect upon the sole practitioner and

the small partnership in rural areas. Everyone agrees that

-16-

the big firm lawyer already has the benefits of specialized

practice. They a4rued that;large law firms in general are

not adversely affected by the failure of the bar to regulate

specialization, because a large law firm usually has little

difficulty in making the availability of the specialized

services of its individual lawyers collectively known to its

prospective clients, and-teht regulation would only encourage

clients to leave general practitioners to go to those large

conglomerates of legal specialists. I personally do not

accept that argument as I believe that experimentation will

demonstrate that regulation of legal specialization tends to

equate the sole practitioner and small law firm with the

large law firm in making specialized services available to

their respective clients.

Realistically, one of the principal reasons for the

success of large law firms is that they have had no difficulty

in communicating to the public that they offer specialized

services, and that the collective abilities of their lawyers

enable them to be specialists in every field of the law.

Many lawyers argue that the official recognition of specia-

lists would enable general practitioners more easily to

obtain qualified specialists to assist them in situations

where they may occasionally need such specialized legal

services. Certainly, I believe that it would aid those

lawyers in informing the public that specialized legal services

-17-

can be made available by general practitioners as wel as by

large law firms. Wf experimentation deeq show that t enables

the small practitioner ynore effectively to compete with the

large law firms, A' al whdee pee.iartaitipfth may ultimately be

hailed as the means whereby the ultimate survival of the

independent sole practitioner was insured.

It presently appears to me that at the least, our

committee will recommend to the House of Delegates that in

those states which conclude that it is presently undesirable

to regulate voluntary specialization in the practice of

law, special attention should nevertheless be given to:

1. Ways and means whereby the availability of

lawyers possessing unusual legal skills may be made known.

Among such lawyers are:

(a) Lawyers who primarily specialize in fields

of law which seem to require specialized technical non-legal

training;

(b) '~Qawyers who primarily specialize in fields

of law which affect a ry sma TQr, extremely narrow segment

of the publ,

(t) (c) Lawyers who primarily specialize in fields

of law requiring a knowledge of a foreign language;

(d) La ers wo primarily specialize in ields

of law requiring inform tio nd reference material ot readily

available to all lawyers ;

-18-

( ) Lawyers who primarily specialize in fields
of law that are extremely complex.

For example, a survey undertaken by a bar

association for that purpose might be made known to the members

of the bar generally, even though not otherwise disseminated

to the public.

2.h) Voluntary limitation of practice to a specified

field of the law, or to one or more functionally related fields

of the law, by experienced practitioners of demonstrated

capacity. Limitation of practice seems toI to be clearly

in the public interest, and I believe it should be permitted.

No substantial reason to the contrary has ever been advanced

to me. Such limitation of practice is not specialization,

and I am convinced that permitting voluntary limitation of

law practice by a lawyer who wishes to restrict his clientele

is not regulating voluntary specialization. The increased

repetitive experience which is a necessary corollary to a

restricted practice will permit those lawyers who voluntarily

so choose to perform quality legal services in their specialized

field or fields of the law at a decreased consumption of their

time, with resultant potential savings to their clients.

Th presentations which have been ,pdsented to our

committee, both o and in writi ,quickly convinced me

that same of the standard uments presented against specific

programs of re ion of special tion in the law practice

-19-

staged. I have concluded that the need for regulated

specialization in many states is minimal, bWn in other states,

I believe that the public interest demands that some action

on the matter be taken by the organized bar. It appears to

me that it is a matter for each state to decide for itself

in view of its particular circumstances and economy.

In encouraging those states which might benefit

from regulated specialization in the practice of law to seek

solutions to the numerous practical and theoretical problems

involved, the organized bar must keep in mind that the issue

it is deciding is not whether the legal profession will have

specialization. Specialization is already here, and it will

inevitably increase. The sole and only issue upon which my

committee will report to the American Bar Association is

whether a plan for specialization in the practice of law will

be recommended on a national basis at this time. It is my

own personal opinion that now is not the time to take such

action.

If my tentative conclusion that the promulgation

by the American Bar Association of a plan of voluntary speciali-

zation in the various fields of the law on a nationwide basis

is not desirable at this time is accepted by my committee

as a final position, I shall also urge that we recommend to

the House of Delegates that the inexperience of the legal

-20-

profession in regulating specialization, the difficulty of

defining fields of specialization, the want of objective

criteria for judging legal proficiency, the uncertain cost

of administration and the inability of the organized bar

positively to determine that lawyers who are at present either

generalists or specialists will not be adversely affected by

such regulation to the ultimate detriment of the public,

indicate that pilot or experimental programs for the regu-

lation of voluntary specialization should be conducted at

the state level, at the discretion of those states wishing

to do so, in order that the experiences thus obtained might

be available to the American Bar Association before it

ultimately determines whether or not to promulgate a nation-

wide plan to regulate voluntary specialization.

I also believe that our committee should recommend

that in order to assist lower income and middle income members

of the public in more easily obtaining competent legal ser-

vices, lawyers participating in legal aid programs, defender

programs, prepaid legal cost insurance programs, lawyer

referral systems, and similar programs, should be allowed to

set forth to such programs or referral systems the fields

of law in which they individually consider themselves compe-

tent and in which they are willing to accept employment in

such program or system, but that the referring agency should

have the responsibility of assuring itself of the competency

-21-

of a lawyer in the fields of law in which references are

made to him.

In conclusion, I urge that until such time as it
X^ *\ <4 'C4;i6v4^ z1ZI
is determinedAwhether or.not the promulgation of a plan

of voluntary specialization in the law practice is desirable,

the existing Canons of EthicsIbe specifically amended to

provide:

(a) A lawyer should not knowingly assume legal

representation beyond his then existing competence, or that

he cannot then perform without unreasonable risk or expense

to his client.

(b) A lawyer may limit his practice to one or

more selected fields of the law, and he may make a dignified

and professional announcement concerning the limits of his

practice. Such limitation of practice by a lawyer shall in

no sense qualify him as an expert or specialist in the fields

of the law in which he has so limited his practice, but it

shall indicate that he does not accept professional employ-

ment in other fields of the law.

(c) A lawyer has a duty to maintain and enhance

his legal ability by periodically participating in those

continuing legal education programs essential to the pro-

ficient handling of legal work of his particular clients.

is a difficult and complex problem, but one

which ust ultimately be solved by lawyers everywhere. If

1/ ajr ~-22-

you find it as stimulating and challenging as I do, I will

be glad to answer your individual questions after I sit

down, which is right now.

-23-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 27

VOLUME II

Address of:. Chesterfield Smith, Lakeland, Florida,
Chairman, American Bar Association Special
Committee on Specialization

Before: Third National Conference on Law Office
Economics and Management

Title of
Address: "Specialization in the Law Whither now?"

Date of
Delivery: Saturday, October 19, 1968

Recognition and regulation of specialization in the

practice of law is not a new subject for the legal profession,

nor for the American Bar Association.

In 1954, the House of Delegates adopted a resolution

approving in principle the necessity to regulate voluntary

specialization in the various fields of the practice of the

law for the protection of the public and the bar; and approving.

the principle that in order to entitle a lawyer to recognition

as a specialist in a particular field, he should meet certain

standards of experience and education. The implementation of

that resolution was delegated to the Board of Governors, subject

to final approval by the House of Delegates. Since that time,

several efforts have been made in the House of Delegates to

implement that resolution without success.

In August, 1967, the Committee on Availability of

Legal Services recommended to the House of Delegates that the

Board of Governors renew its efforts to implement the 1954

resolution providing for the recognition and regulation of

voluntary specialists in the various fields of the practice

of the law. As a result of action by the House of Delegates on

that recommendation, the Board of Governors established a special

Committee on Specialization, directing it to assemble and study

information relevant to all aspects of voluntary specialization,

and if the committee should determine that the promulgation of

a plan of voluntary specialization is desirable, to prepare a

plan in various fields of the practice of law for the considera-

tion of the Board of Governors and the House of Delegates.

The organizational meeting of the Special Committee

on Specialization was held in January, and subsequent meetings

were held in March, April, May, June and September. All sections

and all committees of the American Bar Association, all other

bar interest groups which have come to our knowledge, whether

or not they are affiliated with the American Bar Association,

all state bar associations, and all large local bar associations,

were invited by our committee to present their views on the sub-

ject of whether it is desirable that a plan of formal recognition

of voluntary specialization by the legal profession be promul-

gated, and if such a plan should be recommended, what form it

should take. A public hearing was held by the committee in

-2-

Chicago on Saturday, April 6, at which time the committee received

many position and letter statements from sections, committees,

lawyers in their individual capacity, state bar associations and

other lawyer interest.groups setting forth their views on this

complex and difficult subject. Many of those statements and

letters were reflective, studious, and thought-provoking.

After the public hearing, the committee mailed a

letter to some 1700 leaders of the Sections of the American

Bar Association requesting their advice and counsel on the

subject of voluntary specialization. The response thereto was

amazing. The meaningful replies received as a result of that

mailing have been very helpful to the committee in reaching its

conclusions to date.

On October 5, 1968, the committee disseminated to all

those who had expressed substantial interest in our assignment

our tentative Recommendations and Report, based upon a consensus

reached by a majority of the committee at our September meeting.

On December 5, 1968,the committee will consider the comments,

suggestions and criticisms thereon from wherever received, and

hopefully a final consensus of the committee will be reached

for presentation to the House of Delegates sometime in 1969.

As Chairman of the committee, I sincerely believe that the com-.

mittee members each still have an open mind on the subject,

amenable to argument, persuasion, and further study. I am even

persuaded that some of the tentative views of the majority of

-3-

IN

the committee hereafter expressed by me will not ultimately be

included by the committee in its final report. It is of course

even possible that the separate position of member Charles Joiner

will wind up as the majority position, although realistically

the chances of that eventuality seem very remote. The views I

will here espouse are presently endorsed by six of our seven

,members, at least on a tentative basis.

While recognizing that regulation of specialization

in the law practice may increase the availability of legal ser-

vices to the general public, the committee is firmly convinced

that such regulation will create certain problems for both the

public and the legal profession.

Even though many lawyers still at least pay lip ser-

vice to the concept that a lawyer can be a jack of all legal

trades, I submit that in fact modern lawyers cannot be fully

proficient and efficient in every field of the law, and that

most lawyers now clearly accept that fact by self-imposed

restrictions on their own practice.

The committee quickly agreed that some degree of

specialization is properly an existing necessity of modern law

practice. Specialization permits the lawyer to make the most

efficient use of his time, skills, and knowledge. The complexity

of our society and the increasing participation therein by

government made it clear that no individual lawyer can be proficient

-4-

in the performance of all legal tasks. We believe that our ever-

expanding economy will inevitably lead to an ever-increasing

pattern of specialization by practicing lawyers in a limited

number of the various fields of the law practice. It also

appears to us that an increase in the number of lawyers who

specialize in and of itself would improve the overall quality

of the total services rendered by lawyers to their clients,

simply because those lawyers who specialize will have an oppor-

tunity to concentrate their experience and their continuing

legal education.

While we believe that specialization in the practice

of law may thus improve the quality of legal services rendered

to his clients by the particular lawyer thus specializing, we

find that specialization is not synonymous with expertness.

The certified specialist must still be a lawyer and not a mere

legal technician. A competent lawyer is not required to know

the law without research; he must have the ability to find and

evaluate the law. Even a true expert, with substantial repeti-

tive experience in a given field, will rarely if ever, give a

firm commitment as to the law on a particular point without

research, unless his recent experiences contain the answer.

His advantage arises primarily from the shorter research time

required, as well as from his experiences. One becomes a real

expert only by both experience and constant study in a particular

-5-

field or fields of the law practice extending over a period

of several years, and not by certification as a specialist.

If a lawyer is to specialize in one field of the law,

it is hardly arguable that he should meet certain minimum standards

of experience and education. It thus seems to the committee

that certification by a competent authority must be an intregal

part of any complete plan or program ultimately promulgated to

regulate specialization in the law practice. A bar represented

expertness, or even a bar countenanced self-certification of

expertness, that does not in fact exist, would be far worse in

its effect upon the public image of the organized bar than any

of the present detriments to that image attributable to the

non-regulation of specialization. Certainly.all lawyers recognize

that the attempted performance of professional services by law-

yers who are individually incompetent to perform such services

brings disfavor on the legal profession as a whole.

Our committee concluded that self-recognition of

special proficiency which is not verified and factual is not

the ultimate answer, nor is it even now an acceptable substitute

for certification. The major difficulty with self-certification,

apart from the case of the lawyer of little integrity and no

actual expertise who will claim expertise for self-aggrandizement,

is with the lawyer who honestly believes that he is qualified

for specialized practice but who would be rated as a novice by

-6-

those lawyers clearly entitled to accreditation as experts.

If the public image of the organized bar is to be unblemished,

lawyers as a group must exercise a high degree of responsibility

to those far less informed members of the general public seeking

a lawyer and who rely or may tend to rely upon what may be a

false claim of special proficiency.

Lawyers who undertake legal services which they are

individually incompetent to perform lend credence to the claim

of lay groups that attempts by the bar to deter the unauthorized

practice of law by specialized laymen is motivated solely by

the economic self-interest of the complaining lawyers. The

committee believes that if the organized bar can provide an

effective method whereby the public, or general practitioners

on behalf of their clients, can identify and select competent

legal specialists, the chance that persons needing legal services

will turn to well-publicized specialized laymen, rather than to

lawyers, will be minimized.

Almost every lawyer who has appeared before our com-

mittee has emphasized that it is extremely important that the

lawyers who presently specialize do not develop into narrow and

autonomous self-policing units. The experience of the medical

profession in that regard leads us to believe that this possibi-

lity is a real and present danger. A similar fractionalization

of the legal profession could ultimately be detrimental to both

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