Michigan Needs to Recognize the Title “Appellate Specialist”
Defining “Appellate Specialist”
Using the word “specialist” however is a loaded term. The State Bar of Michigan (unlike some states) doesn’t certify “appellate specialist.” Any lawyer is deemed as legally qualified to handle an appeal as the other even if that attorney has not set foot in courtroom in his entire career.
States such as Florida certify attorneys to be “appellate specialists.” Their criteria are as follows:
- A minimum of five years in law practice.
- A satisfactory showing of substantial involvement in the
field of law for which certification is sought.
- A passing grade on the examination required of all
- Satisfactory peer review assessment of competence in the
specialty field as well as character, ethics and
professionalism in the practice of law.
- Satisfaction of the certification area’s continuing legal
Michigan doesn’t have any tests, so I can’t take them but I’ve sat on the Bench/Bar Committee that reversed engineered the Court’s internal operating procedures. I also sat on the State Bar Committee which drafted the original parole appeals rules which adopted by the Michigan Supreme Court (with one exception). I can’t help but think that I could pass the examination (if one were written).
I’ve not only attended CLEs on appellate and post-conviction law, but have taught them for the Criminal Defense Attorneys of Michigan, the Michigan Appellate Assigned Counsel System, the Wayne County Criminal Defense Bar Association, the Prison & Corrections Section of the State Bar, and the Criminal Law Section of the State Bar. My education requirements exceed those required in most states.
Free Speech Arguments
Free speech law might permit me to call myself an appellate specialist. The Oklahoma Court of Appeals dealt with the question of whether a medical doctor (Dr. Steelman) could use the phrase “board certified” or a “specialist” in Bariatric Medicine when the doctor was certified by a private board rather than the State.
Dr. Steelman had a good legal argument. In Peel v Attorney Registration & Disciplinary Commission of Illinois, 496 US 91, 110 S Ct 2281, 110 LE 2d 83 (1990), the United States Supreme Court struck down an Illinois bar on attorneys claiming board certification when the certification came from a third-party organization. Mr. Peel made it clear that the certification came from National Board of Appellate Advocacy. The Court, however, stated that the power to display this third party certifications was not unlimited:
“We do not ignore the possibility that some unscrupulous attorneys may hold themselves out as certified specialists when there is no qualified organization to stand behind that certification. A lawyer's truthful statement that “xyz board” has “certified” him as a “specialist in admiralty law” would not necessarily be entitled to First Amendment protection if the certification was a sham. States can require an attorney who advertises “xyz certification” to demonstrate that such certification is available to all lawyers who meet objective and consistently applied standards relevant to practice in a particular area of law. There has been no showing-indeed no suggestion-that the burden of distinguishing between certifying boards that are bona fide and those that are bogus would be significant or that bar associations and official disciplinary committees cannot police deceptive practices effectively.” 496 U.S. at ----, 110 S.Ct. at 2292, 110 L.Ed. at 100.Therefore, while Steelman is entitled to commercial free speech, the right is not absolute. The Board, as an arm of the State seeking to protect the public's health and safety may make reasonable restrictions on Steelman's right to advertise himself as “board certified”. He may not so advertise himself, when he has not met the reasonable requirements set by the Board to do so.
Peel, however, is not as clear as it first appears. It is a plurality ruling in an area where the United States Supreme Court has been less than clear. State regulatory authorities are hostile to the principle. They are afraid that a number of vanity awards, certifications, and awards will start being sold with little or light review. Doctors (and lawyers) will start competing based on Super-Doctor, Top Doctor, vanity awards. Oklahoma ruled that Dr. Steelman could not hold himself as “board certified” despite the Peel ruling. Steelman v Oklahoma State Bd of Med Licensure & Supervision, 824 P2d 1142, 1144-45 (Okla Civ App 1992).
Earlier this year a New York Attorney, J. Michael Hayes, received a similar reception from the New York Attorney Grievance Committee. Hayes v New York Attorney Grievance Comm of the Eight Judicial Dist, 672 F3d 158, 170 (CA 2 2012). Mr. Hayes had an impressive career. He was a lecturer for the Buffalo Law School, taught courses for the New York Bar Association, and published numerous articles on civil litigation. In 1995, Mr. Hayes was awarded board certification by the NBTA – the same organization that certified Attorney Peel and which is accredited by the prestigious American Bar Association.
The New York discipline authority wrote Mr. Hayes taking issue with the certification. They first asked him to disclose that the certification was by the NBTA and that it was a private certification. They then complained about the type size. Mr. Hayes replaced his advertising with larger disclaimers exceeding the standards required for cigarette health warnings.
After determining that New York would not be satisfied with his compromises, Mr. Hayes sued the disciplinary authority in New York’s federal court relying on Peel. The District Court denied him a restraining order and ultimately granted summary judgment against him. The Court found that despite New York’s evolving requirements, the regulation was not unconstitutional. A bench trial was held on the one remaining issue; Mr. Hayes lost and he appealed it to the Second Circuit. For reasons I don’t fully understand, the case took ten years to decide.
In March of 2012, the Second Circuit largely ruled for Mr. Hayes. The Court noted that the law is sharply divided around the county about the use of the term “board certified” or “specialist.” Most states permit the designation when there is a clear disclaimer, but differ about how clear the disclaimer has to be. The Second Circuit then noted that there is a tension between free speech and trying to protect the public.
The Second Circuit further stated that the U.S. Supreme Court’s teachings in this area are “not entirely clear.” 672 F3d at 165. The Court noted that the law was tilting in favor of free speech and implied that a Bar Association must provide clear guidance to the additional required mandatory language. Michigan’s rules suffer some of the infirmities outlined above. RI-142 permits us to use the phrase “certified by” or “specializing in” subject to many of these conditions. If that were the only ethics opinion on the subject, I would rush out and get certified by one of the organizations and proudly post “Stuart G. Friedman – Appellate Specialist” on all my business cards, websites, and other advertising. The problem is that Ethics Opinion C-232 is still on the books and expressly prohibits this designation. Stated another way, if I wanted to use the phrase “appellate specialist,” I’d better be prepared for ten years of litigation with the State Bar of Michigan or the Michigan Attorney Discipline Board and/or Grievance Administrator. That is why I am using the phrase “Concentrating in” on my website.
Practical Reasons Why Michigan Should Recognize the Title
The reasons why people need an appellate specialist are massive. My colleague on the Appellate Practice Section Council (Jill Wheaton of Dykema) cogently identifies these reasons in her July 2012 article in the Michigan Bar Journal. These include:
- Knowledge of a complicated set of rules and procedures. Ms. Wheaton makes the point that every attorney is capable of reviewing the court rules, but the Court of Appeals has an institutionalized hierarchy and history in interpreting them. Some “rules are more equal” than other rules. A good criminal example of this is the competing doctrines that you cannot expand the record on ex parte but you can attach non-record documents to seek a remand. Many non-appellate specialists think this means you can seek a remand based on non-record evidence, but you may not attach it your brief on the merits;
- A fresh pair of eyes and perspective. The trial process warps what people think an appeal is about. By the time that a case moves to the appellate level, the issue is often not directly about innocence or guilt, but instead about procedural irregularities. Michigan law gives an attorney fifty pages to argue why a defendant’s conviction should be reversed. This sounds like a lot of pages, but it really isn’t. Many categories of errors rarely pass the harmless error threshold and will need to be discarded. Trial attorneys routinely a problem doing so;
- The other side has an appellate expert. Ms. Wheaton spoke about civil experts, but the same is true on the criminal side. Last week, the Prosecuting Attorney’s Coordinating Council put on a seminar at Crystal Lake for prosecution Appellate Specialists. Their topics included:
Ms. Wheaton also makes the point that an appellate specialist should be brought in to consult on a case prior to its conclusion. Issue preservation requirements are often complex and trial attorneys will often miss these points. While her examples are civil, they are instructive. Many civil summary disposition appeals fail because trial counsel has not properly made something part of the record. It may have been talked about at various places, attached to other pleadings, and even been covered in discovery. Unfortunately this is often not good enough. If it is not attached to a summary disposition motion, it might be deemed waived. At the same time a summary disposition motion which has excessive attachments might never be read. This creates a complex balancing act.
Criminal law is no different. Criminal trial judges often deal with objections at the bench or in chambers so that they do not have to send the jury to the jury room or put them on break. These breaks slow proceedings down and are contrary to most interests. Unfortunately, these objections are rarely acceptable to appellate courts. If it is not identified in the record, it does not exist. Similarly, many trial judges avoid actively ruling on cases using a variety of techniques that never bring the matter to finalization. I have seen many valuable issues lost because the trial court never ruled on the matter.
This fall, I will use my position on the Council of the Appellate Practice Section to push for official State Bar Certificate of Appellate Practitioners. If you support my initiative or have any opinions about what such a criteria should or should not have please contact me