“Privacy law specialist” has a nice ring, doesn’t it? Soon, lawyers who devote a substantial portion of their full-time law practice to privacy law can call themselves a privacy specialist without running afoul of state ethics or advertising rules.
On Saturday, Oct. 22, the American Bar Association’s Standing Committee on Specialization voted unanimously to recommend the IAPP’s new “Privacy Law Specialist” designation for formal ABA accreditation. Much work remains to be done, and many states have their own processes separate from the ABA’s, but it’s clear that privacy has arrived as an official area of specialty akin to trial practice, estate planning, and the like.
The Privacy Law Specialist designation will be conferred upon an applicant demonstrating admission in good standing to a U.S. state bar, as well as: passage of (a) the CIPP/US exam; (b) either the CIPM or the CIPT exam; and (c) an ethics exam prepared by the IAPP exclusively for Privacy Law Specialist applicants in compliance with the ABA’s accreditation standards. Applicants must also demonstrate their “substantial involvement” in the practice of privacy law over the three years prior to their application, submit evidence of privacy-related continuing legal education credits for the prior three years, and provide peer references to corroborate the “substantial involvement” claims.
Applications will be available online in the first quarter of 2017.
Update, Feb. 7, 2017: The IAPP is still working with the ABA toward accreditation of the IAPP’s Privacy Law Specialist designation, but the ABA has postponed House of Delegates consideration of the accreditation application until its annual meeting in August, 2017.
States have long been concerned about lawyers potentially misleading consumers through advertising, especially in areas of claimed specialization. In 1990, the United States Supreme Court ruled in Peel v. Attorney Registration and Disciplinary Comm’n of Illinois that states may not bar lawyers from truthfully communicating that they are certified as a specialist by a bona fide organization.
The ABA thus established a Standing Committee on Specialization in 1993 to review applications by organizations certifying attorneys as specialists in a particular legal field, and to provide such organizations with accreditation of their “bona fides” if they meet certain standards. Because lawyers receive and maintain their licenses to practice law through their state boards, most states require that the lawyers’ certifications be accredited by the ABA, approved by state regulatory authorities, or both, before lawyers may publicize their certification.
So far, the ABA has accredited just seven organizations that offer specialist designations for lawyers: American Board of Certification; American Board of Professional Liability Attorneys; National Association of Counsel for Children; National Association of Estate Planners & Councils Estate Law Specialist Board; National Board of Trial Advocacy; National College for DUI Defense; and National Elder Law Foundation.
The IAPP has now taken a major step toward receiving its accreditation to offer lawyers the Privacy Law Specialist certification. The Oct. 22 vote by the ABA’s Standing Committee on Specialization recommends the IAPP’s application for approval by the ABA’s House of Delegates, which meets this coming February to vote upon the recommendation. Soon after that, should the IAPP receive the approval as expected, IAPP lawyer-members may apply to receive Privacy Law Specialist designation.
Privacy Law’s Growth
In the last decade, many law firms have added practice groups devoted exclusively to data privacy and security law. Recognizing the unique role lawyers play in the privacy profession, the IAPP recently formed the Privacy Bar Section to offer its attorney-members dedicated web conferences, networking opportunities, conference tracks, forums, and opportunities to help develop young lawyers seeking privacy specialization.
Law schools throughout the United States and elsewhere are also offering courses in privacy law and a few have devoted considerable resources to helping students find a career in privacy law. Two of those schools — Santa Clara Law School and the University of Maine School of Law — even offer certificates in privacy law. And Washington & Lee Law School, in collaboration with the IAPP and the Future of Privacy Forum, is launching through its Law Review an annual online edition devoted exclusively to privacy.
Lawyers interested in the Privacy Law Specialist designation should consult their states’ own model rules regarding specialization claims and advertising. Several states will recognize the IAPP’s ABA accredited Privacy Law Specialist designation as meeting rule 7.4 of the Model Rules of Professional Conduct. Several states require that the IAPP be identified as the certifying body, and also require certain additional statements and disclaimers. Still other states require that the IAPP seek state-specific approval of the specialist designation, which often mirrors the ABA’s standards and requirements. And some states do not regulate specialist claims, or don’t permit them regardless.
As always, stay tuned to the IAPP’s Daily Dashboard. We will have additional information on the ABA accreditation and on state-specific privacy law specialist requirements in the coming weeks and months.
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