Don’t scrap program just because lawyers are lazy

When Stewart Saxe, a certified labour law specialist at Baker & Mackenzie LLP in Toronto, works on a legal project with partners from his firm’s California office, clients can take comfort in knowing that they are dealing with legal specialists.

That’s because Saxe and a number of his colleagues in California have obtained their specialist designation in the areas in which they practise. “There’s just an expectation you are going to have it.”
Lloyd Ament, a certified immigration specialist at Basman Smith LLP in Toronto, says for him, obtaining the designation has been a “boon.”

“It’s terrific. I do a lot of international work and travel to a lot of places. So it’s an introduction. It is a confidence builder. For people who may not know me, it gives instant credibility.”
Indeed specialization in professions is growing, as industries such as law, accounting, and engineering become much more complex.

The medical profession has more specialties than Carter has liver pills. There are gastro-intestinal experts, cardiologists, radiologists, anesthesiologists, and pediatricians - the list is endless. Doctors spend years training to obtain designations.

While specialization in the legal community has grown, it hasn’t reached the state of the medical profession. Nonetheless, the general practitioner is a dying breed. Most lawyers have focused on some area of the law in which they want to make their living.

However, Ontario is the only province that has tried to make a business out of specialization.
Today, it has 719 specialists operating across 15 categories. The largest is civil litigation, which has more than 300 certified specialists, followed by criminal, family, immigration, and construction law. More than half of the specialists are in Toronto, followed by Ottawa, Hamilton, and London. But a number are spread out smaller in centres such as Sarnia, North Bay, and Goderich.

The problem is that the 719 specialists amount to only 3.6 per cent of the profession and the program eked out an $8,000 net profit, a margin of less than one per cent. Now the Law Society of Upper Canada wants to scrap the program because it’s not profitable and hasn’t lived up to expectations - at least in its eyes.

A recent report to Convocation from the professional development, competence, and admissions committee, which monitors the program, feels that scrapping it is the best plan. However, there are two other options it put forward. One is to continue the program and allow lawyers to add the CS designation after their name to denote them as a certified specialist and subsidize the program for another two years, at which point the program would be reviewed.

The other is to allow the CS designation and raise the fees to make the program self-sustaining. That would see certification fees rise, the subsidy would continue for another two years, and the program would again be reviewed.

When the law society revamped the program in 2002, it added new categories and undertook a membership blitz, the expectation was that it would achieve six per cent of the membership by 2004 and 10 per cent by the end of 2006. It was supposed to be self-funding by 2004 and turning a 10-per-cent profit by the end of 2006. It has failed miserably on both fronts.

The committee says there is little point in trying to “fix” the program, despite the fact that the Certified Specialists Board, which is responsible for overseeing and regulating the program, thinks it’s premature to terminate.
The Ontario Bar Association has also come out in favour of extending the program’s life and the benchers are mulling over what to do next.

So why has the profession largely ignored certification? One reason, according to a law society survey, is procrastination. An informal survey of members found that 100 per cent were aware of the program and 69 per cent had considered applying. However, 68 per cent cited procrastination and lack of time as stumbling blocks.

Saxe calls the process for obtaining labour certification “horrendous,” noting that it took many hours of his and his support staff’s time to complete. The report to Convocation notes that there is a lack of star appeal to the categories and the plan to have those who oversee the program achieve their designation hasn’t panned out as expected.

Paul Rabinovitch, a certified specialist in real estate law at Graham Wilson & Green in Barrie, says, “It would be better if the top people in each field did apply,” but it’s important not to ease the requirements and “water it down” to make it more attractive to achieve certification.
He says being certified has “merit” and would like to see it continue, though he says it doesn’t necessarily bring more business.

That seems to be part of the problem - a lack of awareness in the marketplace about certification. One survey respondent notes that it’s a “meaningless designation in the marketplace.”

That’s the rub. Spending $124,000 on promotion over five years isn’t much in a world where advertising lurks on every street corner. The CS designation is essentially a branding effort and that costs money. It’s also a bit of a Catch-22. Lawyers won’t join because they don’t see value or are too lazy and clients aren’t aware of the designation so they use any old lawyer.

If the value proposition is built around the end user - the client - who then starts asking only for specialists, that will be an incentive. But you can’t build brand awareness among the public with a few ads in daily newspapers. It requires an ongoing commitment and brand building exercise, much in the same way that the accounting profession has been marketing the CGA and CA designations.

The specialist designation should continue and more effort should be spent on marketing it to the consumers. It might mean having to raise the fees to achieve certification, but should the regulator be targeting a 10-per-cent profit for oversight? No, it should break even at best.

It’s likely the legal education requirements that specialists must endure each year reduces the insurance risk, so the profession is better off by having more people enticed to seek certification.
Don’t scrap it - fix it by shifting the focus to consumers and marketing the hell out of it. Make it upper most in their minds, and lazy lawyers will flock to the opportunity.

Jim Middlemiss is editor of  Canadian Lawyer magazine and co-author of Your Guide to Canadian Law.

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