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Sunday, June 16, 2024 | Back issues
Courthouse News Service Courthouse News Service

Lawyer Can’t Sue the Bar Over Feather for Her Hat

(CN) - The Florida bar did not stigmatize a lawyer when it refused to recertify her as a marital and family law specialist because she got bad reviews during the confidential peer-review process, the 11th Circuit ruled.

The Atlanta-based federal appeals panel found that bending the certification rules would render the distinction of specialization meaningless.

First certified as a marital and family law specialist in 1985, Carolyn Zisser renewed that certification every five years until 2000, when her application was denied on the basis of unsatisfactory peer reviews. After it happened again in 2005, and Zisser exhausted the bar's internal appeals system, she filed a petition in the state Supreme Court and sued the bar in District Court, claiming that the anonymous peer-review system violated her due process rights under the 14th Amendment.

The appeals ruling, filed Jan. 19, states that the Florida Supreme Court "issued a one-sentence order denying her petition for review," and a federal judge dismissed her complaint for injunctive and declaratory relief on the grounds that the court lacked jurisdiction and because it found she was not "deprived of a constitutionally protected property or liberty interest."

"A denial of certification, at most, denotes that the candidate, in the eyes of the Florida Bar, does not fall within this select group, nothing more," the district court found, according to the appeals ruling. "Surely not all can claim the vestiges of the elite."

The three-judge appellate panel upheld those findings.

"Federal district courts generally lack jurisdiction to review a final state court decision," Judge Edward Carnes wrote for the court, adding that review of such cases is reserved to the U.S. Supreme Court.

The court also found that Zisser's due process challenge to the Florida Bar's confidential peer-review requirement for recertification fell short.

Zisser tried to defend her claims by pointing to the 11th Circuit's ruling for a physician who challenged a hospital that revoked his staff privileges.

"Her reliance is misplaced," Carnes wrote.

Unlike hospital staff privileges, the court found that board certification is irrelevant to an attorney's ability to practice law.

"Certification is contingent on a number of factors, including favorable results from a confidential peer review," Carnes wrote. "That part of the process is no secret. It is set out in the rules themselves, and every applicant for certification acknowledges that in a waiver she signs."

The court also rejected Zisser's claim that her lack of certification damaged her reputation in the legal community.

"The lack of certification in a field of specialty simply means that an attorney is, like the vast majority of attorneys, not certified in that field," Carnes wrote. "The failure to convey a badge of distinction is not stigmatizing.

"Second, there is nothing in the record to suggest that the Florida Bar publishes the names of attorneys who have been denied certification or recertification, or the reasons why," the judge added. "The fact that Zisser's application was denied apparently became public only because she appealed that denial and filed this lawsuit."

He also reiterated that being certified is not a protected interest because it is not required to practice law.

"'When everyone is somebody, then no one's anybody,'" Carnes wrote, quoting the famous line from "The Gondoliers," a 19th century Savoy Opera. "The same is true of a state bar's certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that field. The easier it is to be certified, the less that certification means."

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