January 1, 2004 Gary Blankenship Senior Editor Regular News Certification appeal process clarified Certification appeal process clarified Senior Editor A proposal to revamp the certification appeal process has been abandoned in favor of clarified policies, following Bar Board of Governors action last month.The board also accepted the recommendation of the Program Evaluation Committee for a compromise on real estate certification standards that had upset out-of-state Bar members.In past meetings the board had been reviewing a plan to change certification appeal because of problems involving confidential peer review. Under current Bar procedures, only the area certification committee and the Board of Legal Specialization and Education see the peer reviews during an appeal.The peer review is not shown to the appellant, nor is it shared with the board’s Certification Plan Appeal Committee or the board itself when it gets an appeal.That caused concern among CPAC and board members that they couldn’t make an informed decision when the appeal was based on peer review. The BLSE argued that those appeals were supposed to be only on procedural issues and not the actual content of the reviews.CPAC and the BLSE worked out a compromise where the peer review would be shared with an independent appellate committee, and the committee would have the final say with appeals no longer going to the full board. But the two groups disagreed on the membership of the new appellate committee, so the issue was sent to the Program Evaluation Committee for further study.Board members also raised concerns about not letting appellants see the peer review when those were the basis of the appeal.PEC Chair Hank Coxe reported to the board that his committee looked at the issue and recommended returning to the BLSE’s starting position.“Essentially it involves the decision that CPAC would do a procedural due process review and would not be involved in an actual review of the peer review,” Coxe said. “There is a significant, overriding concern of confidentiality with the peer review.”He added that CPAC had approved the proposal. The agreement also raised questions about CPAC’s role, since the revised rules are likely to significantly reduce its workload, Coxe said. PEC will address that matter in future meetings.Board member Jennifer Coberly opposed the revised policies, saying they didn’t address board members’ concerns with peer review. “The whole issue is whether peer review is properly vetted. . . and that has not been properly explored,” she said.The board’s approval adds a new subsection to BLSE policy 2.13, which says that the BLSE’s action on an appeal “shall close the application and peer review evaluation process.”It also clarifies another subsection on appealing to CPAC and the board by saying those appeals can deal only with procedural issues. The new language, in part, states: “Such appeal and review shall not extend to or include further application or peer review evaluation, or review or consideration of confidential peer review responses.”On the real estate certification, Coxe said the issue had ramifications for many other certification areas. The dispute began with requested changes to real estate certification standards that specified an applicant have involvement with Florida real estate law and transactions. That raised concerns from out-of-state Bar members, who might effectively be excluded from getting Bar real estate certification.Coxe said the BLSE, out-of-state lawyers, and PEC reached a compromise, which called for less emphasis on Florida real estate work. The original amendment required applicants to have “continuing substantial experience and involvement with Florida real estate law and transactions” while the compromise dropped the words “continuing substantial.”The current rules require applicants to submit the names of five lawyers or judges who are familiar with their work. The proposed amendment would have required those five to be licensed to practice in Florida, while the compromise says three of the five must be licensed in Florida.The agreement was presented to the board on first reading. It will come back to the board’s January meeting for final approval.Coxe also said many other certification areas have requirements that may need to address a Florida component. “Different areas do it differently,” he said. “Some do it with peer review, saying it must come from Florida lawyers and judges. Others say only Florida trials count [toward certification].”He said PEC voted to ask the BLSE to review each area’s standards for consistency, and to include out-of-state members in the process.