As of this writing, it appears that the Florida Bar Certification Program in State and Federal Government and Administrative Practice may soon be a reality. Given the nature of the practices of many ELULS members, the Section will want to stay involved in the further development of certification criteria and implementation. Those of us who are interested in becoming certified will likely benefit from the head start we would have as a result of our compiling records of past experience and including certification criteria when making their Continuing Legal Education plans.

    Before I go much further, I should probably point out the scope of the certification: “Government and Administrative Practice.” This term generally means the representation of public or private clients on matters before federal and state governmental entities including rulemaking and adjudication involving contracts, licenses, orders, permits, policies or rules. Administrative law judges, arbitrators, hearing officers, and members of an administrative tribunal presiding over federal and state proceedings involving the foregoing also fall under the practice description. Please note the intentional omission of local government practice, which is subject to its own certification program.

    In terms of meeting the initial certification requirement, there are Practice, Peer Review, Education, and Examination Requirements. The Practice Requirement has two parts: 1) the applicant must have at least five years of practice experience before, against, or on behalf of, Florida or federal government agencies; and 2) the applicant must accumulate at least 100 points as “lead advocate” over the course of his or her career using the point scale described below. A “lead advocate” is one who serves as the “primary attorney, whether as a team leader or alone” on behalf of a private party or government entity. “Service as a supervisor or signatory of legal documents, but without substantial participation in the preparation of those documents,” does not qualify one as a “lead advocate.” A presiding member of a tribunal or panel adjudicating a dispute is treated as a “lead advocate.”

    The point scale is somewhat complicated, and undoubtedly many of us who are interested in the certification will find ourselves trying to dust off our collective memories and files, whichever is less dusty. Under the point scale, and bearing in mind the “lead advocate” requirement, five points are assigned for fully adjudicated administrative hearings under the Florida or Federal Administrative Procedure Acts. Four points are assigned to other fully adjudicated state or federal administrative or civil proceedings in which the applicant represents a party in a lawsuit brought by or against a government entity. Among the types of cases contemplated by the criteria are constitutional or statutory claims, state or federal regulations, and matters involving ethics, open government, public records, or sovereign immunity. The Certification Committee can increase the number of points given in each of these categories if the applicant was involved as a lead advocate in an administrative hearing that lasted more than six days.

    Three points are assigned to representation in rulemaking proceedings (through rule adoption) under Chapter 120. Two points are assigned to state or federal actions that are considered to provide a “point of entry” or its equivalent. Examples cited are policies, orders, emergency orders, permits, licenses, contracts, and other agency decisions or notice of intended decision. Administrative proceedings that resulted in a written settlement agreement or withdrawal of a challenge or the government action also qualify for two points. Points are not awarded if the applicant’s involvement was limited to preparing “documents requiring merely clerical completion.”

    If the applicant wishes to qualify other actions on behalf of state or federal government agencies, including rulemaking or military ad judicatory proceedings, the Certification Committee has the discretion to award one to four points.

     Finally, in separate categories (and this is important for reasons discussed below), one point is awarded for obtaining an advisory opinion from the Florida Commission on Ethics, the Florida or U.S. Attorney General, or the Florida Supreme Court. One point is also assigned for experience as legislative staff member working under specified statutes such as Public Records or the APA. One point is assigned for work as a staff member to a tribunal in fully adjudicated matters recognized under the certification.

    For those of you scoring at home, there are some additional complications. You can receive a maximum of 40 points from the categories which award one point (including the “other actions” category of one to four points). In addition, if an applicant does not qualify for any points in the categories that assign four or five points, then the applicant cannot obtain all of his or her points from a single one of the remaining categories.

    Turning to Peer Review, the applicant will need to obtain recommendations from five individuals, at least four of whom are attorneys and one of whom is an administrative law judge or agency head that the applicant has appeared before during the past five years. The Committee may also approve references from the agency general counsel or the highest-ranking attorney who supervised the applicant during the last five years. There are other restrictions on who can provide a reference, so be mindful of the criteria before you go soliciting all of your law partners.

    As to Education, the Florida Bar Board of Legal Specialization and Education will establish the criteria, but at a minimum, you are looking at least 50 hours in qualifying CLE over the five years prior to application. The ELULS Executive Council will be following this requirement very carefully to make sure as many of our CLE’s, past and future, qualify towards certification.

    Finally, Examination. There will be one. Unless you are exempt. Congratulations to those of you who will have at least 20 years of practice prior to the second application period. For the rest of you, bone up on State and Federal APA, Chapter 119, constitutional issues, advisory opinions, ethics, and other miscellaneous matters none of which you are likely to have any familiarity with since law school (if then). The jurisdiction of the Court of International Trade? I hope the answer is “C.”

    There will also be a need to re-certify every five years. Re-certification will involve practical experience requirements under the same point scale described above (you will need ten points), CLE, and Peer Review criteria.

    As this process winds its way through BLSE and the Board of Governors, we will keep you up to date.