When BAPCPA was enacted in 2005, 11 U.S.C. §330(3) was amended to include a new subsection (E) which states when determining the amount of compensation which is reasonable for a professional person, the Court is mandated (through the use of the word, “shall”) to consider, “whether the person is board certified or otherwise demonstrated skill and experience in the bankruptcy field.” Therefore, becoming board certified as a specialist in the area of consumer bankruptcy means that the consumer bankruptcy attorney would be justified in applying for or asking for higher fees when filing applications for compensation. While most districts have instituted a “no-look” Chapter 13 fee structure, in my district, the Middle District of Tennessee, there is a distinction made in the “no-look” fee for those attorneys who are board certified and those who are not.
In addition to the opportunity for higher fees, being designated as a board certified specialist enhances one’s marketability as an attorney who has demonstrated that he/she is a dedicated professional. The specialist can advertise that he/she is a board certified consumer specialist and can use the ABC logo on all marketing materials, including letterhead and business cards. ABC publishes a national directory of all certified specialists. I personally use my directory to refer out-of-district prospective clients to other certified attorneys. I have, likewise, received referrals from my fellow certified specialists from across the country. ABC also has a website where consumers can search for certified specialists by city and state. ABC further offers presentations and media releases to enhance exposure to the consumer bankruptcy specialty. Lastly, being called a certified specialist simply enhances one’s credentials. Some malpractice carriers even have discounted rates for board certified specialists. Peers recognize the significance of completing the process of certification.
The only national certifying body for consumer bankruptcy specialists is the American Board of Certification (hereinafter referred to as “ABC”). It’s office is located in Cedar Rapids, Iowa. It’s motto is “Board Certification should assist the public in identifying those attorneys who have the skills and have taken the extra time and effort to meet the rigorous standards of the ABC. Board Certification is the mark of a dedicated legal professional.” To become certified though the ABC, a consumer bankruptcy attorney is encouraged to strive for excellence.
Becoming a certified specialist is not an easy chore. In short, the attorney must have practiced for at least five (5) years with no less than 30% of his/her practice devoted to consumer bankruptcy law. The applicant must have worked no less four hundred (400) hours per year representing consumer debtors. In the three (3) year period before submitting an application for certification, the attorney must have received no less than sixty (60) hours of continuing legal education devoted to bankruptcy law. The attorney must also submit references from both opposing counsel and other debtors’ counsel, and those references must give good references and be familiar with the applicant’s practice and knowledge of the law. The attorney must have substantially participated in no less than 30 adversary proceedings or contested matters. The applying attorney must also have a clean grievance history with his/her local professional responsibility governing body for all jurisdictions in which the applicant is licensed. The application, which includes supporting evidence that the applicant meets the requirements for certification, is reviewed by a committee to ensure compliance.
In addition to the above requirements, the applicant must pass an exam. The exam is comprised of three (3) parts. The first is a multiple choice exam which is offered to not only consumer attorneys, but also to creditors’ rights and business bankruptcy applicants. The second portion is the ethics portion which is comprised of essays. The last section is the essay portion over substantive law. The applicant is given several hours to complete the exam and can bring a copy of the Bankruptcy Code, the UCC and a copy of their state’s ethical rules. Once the exam is completed, it is graded by the Faculty Committee which includes a wide of variety of academics, judges, trustees and the like. The examination is offered several times a year in conjunction with national and regional conferences. On April 23, 2015, ABC will offer the exam in conjunction with NACBA’s Annual Convention at the Chicago Marriott Downtown. At any time, the applicant can arrange for a proctor to administer the examination in the applicant’s office.
The application process will take several months to complete. Once the application is reviewed and approved and once the examination is successfully passed, the applicant is notified via letter and will receive a beautiful certificate to display and a lapel pin to proudly demonstrate that he/she is one of the elite.
The certified specialist must also apply for recertification every five (5) years. While one does not have to retake the test or detail participation in contested matters or adversary proceedings, he/she must give new references, show compliance with the enhanced requirement for CLE hours and maintained a good grievance history. This demonstrates that the specialist has maintained the highest level of professionalism and dedication to the practice of consumer bankruptcy.
I have been a certified specialist since 2007 and encourage all consumer practitioners to strive to be board certified. For more information on becoming a board certified consumer bankruptcy specialist, visit www.abcworld.org. Note that each state has its own rules for certification. The applicant should also review the rules and regulations of his/her individual state(s).
About the Author
Mary Beth Ausbrooks is a partner at Rothschild & Ausbrooks, PLLC. Located in Nashville, her law firm assists individuals and families throughout Tennessee with Chapter 7 and Chapter 13 bankruptcy petitions, foreclosure defense and other related debt-relief matters.