Revisions to certification appeal process being discussed September 15, 2003 Gary Blankenship Senior Editor Regular News Revisions to certification appeal process being discussed Senior EditorA proposed revision of the certification appeal process has been referred to the Program Evaluation Committee, but several Bar Board of Governors members have questioned a premise of the change – keeping peer reviews confidential.The board’s Certification Plan Appeals Committee (CPAC) and the Board of Legal Specialization and Education have proposed doing away with CPAC (which takes appeals from BLSE decisions) and subsequent appeals to the board. Instead, a new committee would be created and appeals would go directly from it to the Supreme Court.The sticking point between the two is CPAC proposed that the new committee be composed entirely of board members, a majority of whom are certified. BLSE proposed that a majority of the committee be nonboard members. The board considered the plans at its August 22 meeting in Clearwater Beach.CPAC Chair David Rothman said the committee has had problems handling appeals where certification or recertification was denied because of peer reviews.The committee found it difficult to determine if the denial was arbitrary or capricious, as set out in Bar rules, because it could not see the confidential reviews. BLSE balked when CPAC suggested making the confidential peer reviews available to both the committee and the board when they get peer review appeals.The compromise, he said, was to create the new committee, ending appeals to the board, and give the new panel access to the peer reviews.But some board members said they were troubled that no change would be made to the rule that prohibits appealing lawyers from seeing the peer reviews that caused the denial of their certification.“How is an applicant expected to prosecute an appeal without looking at the reasons for the appeal?” board member Frank Angones asked.Board member Louis Kwall questioned how the board could consider a procedural change without looking at the underlying confidentiality. “How can we send them [to the new committee] without giving the applicants the right to see them and to defend themselves?” he asked.Board member Hank Coxe rejected the suggestion the only issue before the board was the makeup of the proposed new appellate committee. “The whole train is driven by the revelation of peer review and the failure to disclose,” he said. “So why is Lou Kwall’s question and Frank Angones’ question not the real issue?”BLSE Chair Jeff Cohen and Tallahassee attorney Tom Ervin, who represents the BLSE on appeals, said peer review confidentiality has always been part of the process, and that the confidentiality is important to the certification system.BLSE has been reluctant to share any peer reviews above the BLSE level because those appeals are supposed to focus only on procedural issues, Cohen said, and the proposed new committee is a compromise so peer reviews won’t have to be shown to the entire board when it gets a peer review-based appeal.“Effective peer review is just critical to certification. . . and peer review can only be effective if confidentiality is maintained,” Ervin said.He also argued that if someone loses an appeal, the loss of certification does not affect their right to practice, nor is it a disciplinary sanction. In addition, when a certification committee is considering rejecting certification because of negative peer reviews, it contacts the attorney first to allow him or her to submit more names for peer review, Ervin said.Bar President Miles McGrane said since the board did not have the proposed rule necessary to make the change, it was best to send the proposal to the Program Evaluation Committee for more study. That included the dispute over the new appellate committee’s makeup.Rothman said CPAC favored having only board members, since they are elected by Bar members and CPAC is entirely made up of board members. If the majority is not board members, the meetings would be unlikely to be held in conjunction with board meetings which would place additional time demands on the minority board members, he said.Ervin said the BLSE thought it was better to separate the adjudicative function of appeals from the board’s legislative functions. He also said it could be difficult with some board members getting confidential information not available to all board members, and that handling the appeals could be a significant additional burden to board work.Bar Executive Director John F. Harkness, Jr., noted that the Bar’s annual rule amendment package, which would include the change in the certification appellate process, won’t be submitted to the Supreme Court until at least January.
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