A History Of The American Board Of Professional Liability Lawyers

Chapter I
In The Beginning

By 1972, in Michigan, professional liability malpractice lawsuits against lawyers, accountants, and other professionals, but especially against physicians, had been increasing rapidly for almost a decade.  Medical malpractice suits had not only become commonplace, but also somewhat chaotic, with Detroit alone seeing 700 medical malpractice lawsuits filed in the space of one year.  Michigan was not alone.  Almost all states were seeing dramatic increases in professional malpractice suits, especially medical malpractice.  Michigan physicians, like doctors elsewhere, were also seeing insurance premiums skyrocket and once easily obtained insurance coverage disappeared.  Physicians were in crisis.  The Michigan legislature grappled with medical malpractice tort reform, but was only slightly successful in stemming the lawsuit tide.  It was this continuing malpractice crisis that motivated three Detroit trial lawyers to analyze whether Michigan lawyers themselves were contributing to the malpractice chaos. 

One of these lawyers, Lawrence S. Charfoos, was a highly successful Detroit plaintiffs’ trial lawyer.  He had been a plaintiff personal injury lawyer for many years when medical malpractice lawsuits exploded on the scene.  Primarily self-taught in the novel medical malpractice arena, Charfoos became a leader of the Michigan medical malpractice plaintiffs’ bar.  In 1973, Charfoos published one of the nation’s first how-to books for preparing, prosecuting, and defending medical malpractice lawsuits—The Medical Malpractice Case:  A Complete Handbook.  The book was a guide for all lawyers engaged in the intricate balance of deciding what precisely is malpractice and how to determine what medical practices were or were not below the standard of care. 

Charfoos’ book arose out of his long held belief that the Michigan professional malpractice crisis was aggravated by many questionable professional liability lawsuits, especially medical malpractice suits.  The resulting crisis atmosphere would, Charfoos predicted, eventually precipitate misguided legislative actions harmful to the meritorious, deserving victims of negligent professionals.  Charfoos also personally observed that a good number of professionals were being defended by lawyers unqualified to defend the intricate details of professional negligence cases.  These unqualified lawyers were simply adding to the existing crisis atmosphere in Charfoos’ opinion. 

So it was in 1972, while also writing his guidebook, that he took action to remedy the chaotic professional malpractice scene.  Charfoos’ idea was to form a professional society dedicated to all lawyers—plaintiff and defendant—engaged in the professional liability arena to share their knowledge and wisdom openly with those interested in learning the details of professional liability claims, elevate the legal ethical atmosphere, and work together to reduce the chaos existing in the professional liability marketplace. 

Charfoos called on two of Michigan’s foremost professional liability defense lawyers—William D. Booth and Richard A. Kitch—each having previously expressed like-minded thoughts about the ethical downfall associated with malpractice claims and how to deal with the professional liability chaos.  Together they formed an organization that they named the American Board of Professional Liability Attorneys.  The collective hope of these founders was that ABPLA would be a forum for lawyers proficient in handling professional liability claims to further their collective knowledge while simultaneously providing an educational opportunity for lawyers not yet proficient in the complex world of professional malpractice. 

The founders set about recruiting plaintiff and defense attorneys to join the fledgling organization.  The founders’ ultimate dream was that ABPLA would be recognized by the American Bar Association and would provide a basis upon which those attorneys engaged in professional liability prosecution and defense would be able to demonstrate their proficiency in handling such cases, and would be allowed to be a sophisticated resource for those who believed they were victims of malpractice, as well as those who were accused of malpractice.  Certification of specialized lawyers was the founders’ ultimate dream. 

In 1973, an unexpected boost to the founders’ specialization certification efforts came in the form of the Chief Justice of the United States Supreme Court—Warren Burger—who publicly, along with other judges, said that one-third-to-one-half of trial lawyers in the United States were unqualified to represent clients in serious civil and criminal trials.  The solution, according to the Chief Justice, was the long overdue step of testing and certifying lawyers who specialized in courtroom trials.  The Chief Justice’s comments received wide publicity and were, at the time, thought by the founders to be the impetus for legal specialty certification and, in particular, certification for professional malpractice trial lawyers, just as they had proposed when first founding ABPLA. 

Unfortunately, legal specialization certification was not to be.  Despite the founders’ attempts to solicit the cooperation of ABA and the Michigan State Bar Association, they were rebuffed, as were most other legal certification efforts in the United States, by bar associations opposed to the concept of certifying attorneys within a legal practice specialty area.  Organized bar opposition to legal certification, almost a century old, did not change until 1990.  It was at that time that the United States Supreme Court finally held that lawyers with legal specialty certifications were entitled to advertise their certifications to the legal services consuming public.  In the interim, before the Supreme Court acted in 1990, ABPLA continued to grow, slowly, with membership spreading by word of mouth beyond the Michigan borders, in particular to Illinois. 

By 1977, the organization had grown to such an extent that the original founders incorporated ABPLA as a non-profit Michigan corporation with offices on the 40^th floor of the City National Building in Detroit.  This was the address of the first President, Lawrence S. Charfoos.  The Articles of Incorporation defined the corporation’s purpose:

To define adequate criteria and systems for identifying attorneys qualified in appraising and handling cases involving allegations of professional errors and affording recognition to those trial attorneys so qualified, and to help improve the standard of practice in the legal profession. 

It was the last phrase of the corporation’s purpose that was the founders’ fundamental, guiding motivation.  Improving the standard of practice in the legal profession was the founders’ phrase for improving the professionalism of ABPLA lawyers.  The founders realized that lawyer competency was only one part of a true profession.  Competency without professionalism amounted to little.  The founders believed passionately that the linchpin of any profession was its dedication and adherence to the moral-ethical behavior often referred to as professionalism.  Thus, ABPLA emphasized ethics as strongly as it emphasized competency.  This dedication to the spirit of professionalism was captured by Charfoos in his how-to book first published in 1973:

This book is dedicated to the large majority of physicians who are themselves dedicated both to their profession and their individual patients’ care.  It is these physicians who by their daily activity create and define the medical standard of care. 

Although this book has been devoted to . . . exposing medical error, I think in fairness to . . . medicine that I close on a different theme.  And that is a reminder to you, as well as myself, that the majority of physicians in this country serve medicine and their patients with responsibility and dedication . . . . I personally have and will continue . . . to live up to the following credo:  I will not accept a case for suit until I have reasonably investigated it and until I have received an opinion from a qualified physician that what happened to my prospective client was most likely a result of medical care that was below the medical standard of care.

ABPLA’s dedication to professionalism can be summed up by the founders’ thoughts about professionalism—zealous, competent advocacy, while encouraging respect for the law and respect for the courts, opposing lawyers, and all others involved in litigation.  In short, the three founders dedicated ABPLA and its members to competency, civility, dignity, and integrity.