History

Happy 25^th Birthday to the ABC!!

Patricia B. Fugée, FisherBroyles, LLP, Toledo, OH/Cleveland, OH

October, 2017

Bio: Patricia B. Fugée is a partner with the law firm of FisherBroyles, LLP, where she is based in the Toledo, OH area and is affiliated with the firm’s Cleveland, Ohio, Columbus, Ohio and Detroit, Michigan offices.  Tricia has been Board Certified Creditors’ Rights by the The American Board of Certification (“ABC”) since 2009, and has enthusiastically supported certification and professionalism generally, serving on the ABC Board of Directors since 2014, the Toledo Bar Association Grievance Committee (which is approved by the Ohio Supreme Court to investigate and prosecute grievances against attorneys) since 2015, and regularly writing and speaking about professionalism and creditors’ rights issues since the mid-1990’s.

The American Board of Certification (“ABC”) turns 25 this year, which is an achievement well worth celebrating.  And we will be doing that; stay tuned for more info about an ABC celebration at an upcoming ABI event!  The importance of this anniversary is amply demonstrated by events leading to the formation of the ABC, and the existing rules of professional conduct.

Back in 1990, the United States Supreme Court had occasion to note the “growing interest in lawyer certification programs.”  Peel v. Atty. Registration & Disciplinary Commission, 496 U.S. 91, 94 (1990).  The Court further noted that in the 1973 Sonnett Memorial Lecture, “then Chief Justice Warren E. Burger advanced the proposition that specialized training and certification of trial advocates is essential to the American system of justice.”  Id.  Endorsing that proposition, a group of lawyers formed the National Board of Trial Advocacy (“NBTA”), which developed a set of objective, demanding standards for certification of trial counsel that many states accepted as evidence supporting the designation.   Id. at 95-96.

Attorney Peele, an attorney licensed in Illinois and Arizona, was certified in civil trial advocacy by the NBTA in 1981, and NBTA renewed the certification thereafter.  Id. at 96.

Beginning in 1983, Mr. Peele’s letterhead reflected this certification.  Id. at 97.  The Illinois Attorney Registration and Disciplinary Commission (“ARDC”) filed a complaint against Mr. Peele in 1987, alleging that the letterhead violated the Code of Professional Responsibility (the “Code”).  After the Commission and the Illinois Supreme Court ruled against Mr. Peele, the Supreme Court considered the constitutionality of prohibiting lawyers from advertising their board certification.  Id. at 99-100.   In ruling in favor of the attorney, the Supreme Court emphasized that “a claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer’s work or a promise of success” but a verifiable fact.  Id. at 101.  The Court also emphasized that where the certifying organization has rigorous, objective requirements, stating that one is certified by such an organization is not an inherently misleading communication that can be curtailed.  Id. at 102.   The Court concluded by stating that “[d]isclosure of information such as that on petitioner's letterhead both serves the public interest and encourages the development and utilization of meritorious certification programs for attorneys.”  Id. at 111.

Following the Supreme Court’s decision in Peele, the ABI leadership worked for over a year to design an objective certification program for business and consumer bankruptcy lawyers.  Known initially as the “American Board of Bankruptcy Certification,” the ABI sponsored the ABC in 1992 as a non-profit organization “dedicated to improving the quality of the bankruptcy bar.”  ABI Annual Report, 1991-1992, p. 14.  “The rigorous ABBC certification standards are designed to encourage bankruptcy practitioners to strive toward excellence and to recognize those attorneys who are especially knowledgeable in the bankruptcy field.”  Id.  They were developed after months of in-depth review of ethical regulations, applicable judicial and administrative decisions, and an exhaustive review of existing and proposed state bar endorsed certification programs.  Id.

The inaugural year of the ABC was certainly a success.  In 1992, more than 300 attorneys applied for certification.  And, the initial officers and directors of the ABC were an extraordinary group of bankruptcy lawyers, judges and law professors, shown below with their affiliations at the time:

In 1993, the American Bar Association (“ABA”) approved accreditation standards for private attorney certifying organizations like the ABC.  ABI Annual Report, 1993, p. 12.  “The ABBC was intimately involved in the promulgation of these standards and was among the first to apply to the ABA for accreditation.”  Id.  The ABC obtained ABA accreditation and has maintained it since then, and has been approved by many states as an authorized board for certification purposes.  See state; see e.g., Ohio Rules of Professional Conduct 7.1 (prohibiting misleading statements in advertising); 7.4(e) (Prohibiting statements about specialization unless the lawyer has been certified as a specialist by an organization approved by the Ohio Supreme Court Commission on Certification of Attorneys as Specialists and the name of the certifying organization is clearly identified in the statement) and https://www.supremecourt.ohio.gov/Boards/certification/accredited/ (showing ABC as an approved organization).

While the ABI was working towards the ABBC, as it was initially known, the Commercial Law League of America (“CLLA”) developed a separate program to identify commercial law practitioners with special expertise, which was ultimately merged on January 1, 1998 into the ABC.  Accordingly, ABC certification now includes certification in business bankruptcy, consumer bankruptcy, and creditors’ rights, and is designed to recognize lawyers who have met discrete, objective certification standards.

The achievements of the ABI and CLLA in sponsoring and developing the ABC, and the founding officers and directors are significant, as reflected by the success of the program over its 25-year history.  The ABC, which has certified well over 1,000 professionals, is the sole national organization providing board certification for insolvency lawyers, and its certification provides an objective standard that assists the public in making informed decisions about choosing counsel while encouraging attorneys to strive toward excellence and recognizing those who have met ABC’s rigorous standards.  ABC is proud to have a long list of United States Bankruptcy Judges and other judges among its members.  See certified-judges.   And, Congress has recognized the value of certification by amending Bankruptcy Code section 330 to provide that board certification is a factor to be considered in determining compensation.  11 U.S.C. § 330(a)(3)(E).

From my personal experience, becoming certified by the ABC has been an accomplishment that I am very proud of.  It demonstrates my commitment to my competency in the practice area, as well as my professionalism and ethics.  In addition, serving on the Board of the ABC has been a wonderful experience, providing me with the opportunity to work with amazing lawyers all over the country, including some old friends and new.

The ABC, including its officers, directors and board-certified lawyers across the country, is very proud of its accomplishments and so will be inviting ABC members and ABI attendees to a commemoration of the 25-year anniversary honoring the founding officers and directors and celebrating the success of the ABC, while looking forward to the future of continued excellence.  Look for details about the event to be announced in coming months, and we hope to see you all there!