American Bar Association Considers Privacy Specialty

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By Stephen Joyce

Nov. 2 — The American Bar Association’s House of Delegates is expected in February to consider accrediting a “privacy law specialist” designation to allow certified privacy lawyers to hold themselves out as specialists in the field.

The ABA is considering whether to allow the privacy competency certification designation of the International Association of Privacy Professionals as a standard for a lawyer to market themselves as a privacy specialist.

“Privacy is a recognized area of growth for legal specialization and there aren’t any other organizations in the United States that credentials people as privacy specialists,” Rita Heimes, IAPP research director, told Bloomberg BNA.

Although legal specialists said no spike in lawyers misrepresenting themselves as privacy specialists has compelled the ABA to consider the move, many states are concerned lawyers may make misleading comments about their privacy-related abilities when seeking new business.

“The concern is that calling yourself a specialist can be misleading because it misleadingly implies that some outside organization has recognized your expertise when in fact that’s not true,” Fordham University School of Law professor Bruce Green told Bloomberg BNA.

Maurice Deane School of Law at Hofstra University professor Ellen Yaroshefsky told Bloomberg BNA recognition of the designation by state attorney regulators could benefit the legal community and consumers.

“I think it’s advantageous both to lawyers seeking to obtain business but also hopefully to clients who want to reach out to the most sophisticated lawyer they can find,” she said.

“Particularly because cyber and security and intellectual property are rapidly expanding fields, there is a perceived need to have a recognized specialty,” Yaroshefsky said.

ABA Conduct Rules

The ABA’s Model Rules of Professional Conduct state lawyers shall not state or imply they are certified as specialists in a particular field of law unless they have been certified as specialists by an organization that has been approved by an appropriate state authority, such as a state bar association or a state Supreme Court, or approved by the ABA.

As now envisioned, applicants wanting to receive the IAPP privacy law specialist designation would need to be:

  •  admitted in good standing to a U.S. state bar;
  •  attain an IAPP Certified Information Privacy Professional/United States credential;
  •  attain either an IAPP Certified Information Privacy Manager credential or a Certified Information Privacy Technology credential; and
  •  pass an ethics examination that would be developed by IAPP specifically for privacy law specialist applicants in compliance with the ABA’s accreditation standards.
Applicants would also have to submit peer affirmation of their substantial involvement in the practice of privacy law over a three-year period prior to their application.

Privacy Qualifications

The ABA accreditation may provide lawyers with an opportunity to claim a specialization without running afoul of state legal standards.

Some states prohibit lawyers from making specialization declarations unless they are certified as specialists by a legitimate accreditation organization. Slightly less than half of U.S. states expressly recognize ABA-accredited organizations as an acceptable accreditation group.

“We will need to go to the other states that allow a claim of specialization, but only under certain circumstances, and one at a time meet their credentialing expectations,” Heimes said.

“We could use the exam which we already have and create an application process that met the ABA accreditation standards and allow lawyers to signal their specialties in the field, much like they would if they specialized in bankruptcy or trial advocacy or some of the other legal specialists,” she said.

To contact the reporter on this story: Stephen Joyce in Chicago at sjoyce@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com

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