There is one set of clear-cut rules regarding the issue of competence of an attorney to practice a particular area of law (some folks may hold themselves out as having a particular "specialization", but not all such commendations are equal).  These are listed in the State Bar of Georgia Handbook under Rule 1.1 on Competence, and the two most pertinent to the discussion of "specialization" are below:

[1B] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

This idea isn't universally accepted, however, and the cases have recently proposed using medical professional certification standards for expert witnesses to qualify expert witnesses on areas of "specialization" in legal malpractice cases.  One case in particular, Wilson v. McNeely, Ga.App., S.E.2d (Ct. App. 2010) contains an excellent discussion of the logic behind these requirements for attorneys as for medical doctors.

        ELLINGTON, C. J.,

        ANDREWS, and DOYLE, JJ.

        NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)

        Ellington, Judge.

        In 2000, attorney Richard McNeely represented Gary Wilson in connection with Wilson's purchase of certain real property in Emanuel County, and Wilsonsubsequently brought this legal malpractice action against McNeely.¹ On the eve of trial, Wilson identified his brother, Rodney Wilson, as the witness who would testify as an expert regarding the acceptable standard of conduct of an attorney in a real estate closing. McNeely moved in limine to exclude the witness's testimony, arguing that the witness did not qualify as an expert because he did not practice law at the relevant time. After empaneling a jury, the trial court conducted an evidentiary hearing on McNeely's motion in limine and granted the motion. When Wilson announced that he was not prepared to call any other witness on the issue of the applicable professional standard of care, McNeely moved for a directed verdict. Because Wilson was unable to support his malpractice claim with expert testimony as to the standard of care, the trial court granted McNeely's motion for a directed verdict. Wilson appeals pro se, contending that the trial court erred in finding that the witness was not qualified as an expert. For the reasons explained below, we affirm.

        1. Expert testimony is admissible when "scientific, technical, or other specialized knowledge will assist the trier of fact... to understand the evidence or to determine a fact in issue." OCGA § 24‑9‑67.1 (b). Generally, a witness may be qualified to give such testimony by his or her "knowledge, skill, experience, training, or education[.]" Id. The Evidence Code imposes special requirements on expert testimony that is offered in a professional malpractice action on the issue of the acceptable standard of conduct of the professional whose conduct is at issue. OCGA § 24‑9‑67.1 (c). Such testimony "shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time[.]" (Punctuation omitted.) OCGA § 24‑9‑67.1 (c). As we have held, "in order to comply with the licensing requirement of OCGA § 24‑9‑67.1 (c) (1), an expert in a professional malpractice action must be licensed and practicing (or teaching) in one of the states of the United States at the time the alleged negligent act occurred." (Emphasis added.) Craigo v. Azizi, 301 Ga. App. 181, 186‑187 (687 SE2d 198) (2009). "The determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion." (Citation and punctuation omitted.) HNTB Georgia, Inc. v. Hamilton‑King, _ Ga. _ (Case Nos. S09G1219, S09G1224, decided June 28, 2010); see also Moran v. Kia Motors America, 276 Ga. App. 96, 97 (1) (622 SE2d 439) (2005) (accord).

        In this case, it is undisputed that the witness was a member in good standing of the State Bar of Georgia at the time of McNeely's alleged negligence, although he did not have a municipal business license as an attorney or malpractice insurance coverage. On the issue of whether the witness was practicing or teaching law at the relevant time, the witness testified at the hearing on McNeely's motion in limine that he worked in a family-owned wholesale equipment distribution business, and he described his principle occupation as that of a "merchant." The witness also described himself as "somewhat corporate counsel" for that business. The witness testified, however, that, at the relevant time, he did not represent his company or any other litigant in court, although he did sometimes informally "try to help people out," did not draft or file pleadings for judicial proceedings; did not prepare deeds or other conveyancing documents; did not search property title records or issue an attorney's title certificate; and did not perform the legal tasks inherent in closing real estate transactions.² The witness nonetheless considered himself to be practicing law "every day[,] because the things that you learn, the things that you do, the things in life all involve the law."

        The practice of law in Georgia is defined as:

(1) Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body;
(2) Conveyancing;
(3) The preparation of legal instruments of all kinds whereby a legal right is secured;
(4) The rendering of opinions as to the validity or invalidity of titles to real or personal property;
(5) The giving of any legal advice; and
(6) Any action taken for others in any matter connected with the law.

        OCGA § 15‑19‑50.

        Although under this definition a licensed attorney may practice law while representing the interests of a single client, as many in-house corporate attorneys do, ³ the record in this case authorized the trial court to find that, at the time of McNeely's alleged negligence, Wilson's witness was not engaged in any of the activities that constitute practicing law in Georgia. As a result, the trial court did not abuse its discretion in granting McNeely's motion in limine. McGuire Holdings v. TSQ Partners, 290 Ga. App. 595, 598-599 (1) (b) (660 SE2d 397) (2008); Smith v. Liberty Chrysler‑Plymouth‑Dodge, 285 Ga. App. 606, 608-609 (647 SE2d 315) (2007); Moran v. Kia Motors America, 276 Ga. App. at 98 (1).

        2. Wilson contends the trial court erred in applying OCGA § 24-9-67.1 (c) (2), ⁴ which applies to medical malpractice actions, to his case for legal malpractice.

        In its order, the trial court determined that Wilson failed to show that, in addition to having been licensed by the State Bar of Georgia, the witness was practicing law in Georgia at the time of McNeely's alleged negligence and, therefore, that Wilson failed to show that his witness was qualified to testify as an expert in his legal malpractice action under the standards set out in OCGA § 24-9-67.1. See Division 1, supra. In a footnote, the court went on to say,

By analogy[,] the medical malpractice expert requirement under OCGA § 24-9-67.1 (c) (2) (D) could be applied in the legal arena. For example, just because you graduated from medical school AND obtained a license to practice medicine, does not, in and of itself, qualify you to testify in all areas of medical specialty in which you have no specialized training and/or experience; i.e.[,] a general practitioner is not an expert in cardiology[,] and so on.

        As Wilson contends, OCGA § 24-9-67.1 (c) (2) by its plain terms applies only in cases of alleged medical malpractice. It would be error, therefore, to require that an attorney witness who was qualified under OCGA § 24-9-67.1 (c) (1) was nevertheless not qualified because his or her credentials did not satisfy a legal-arena equivalent of the standards set out in OCGA § 24-9-67.1 (c) (2) for the medical field. Having reviewed the proceedings, however, we conclude that the trial court's misguided "analogy" did not result in reversible error and that the trial court did not abuse its discretion in granting McNeely's motion in limine, for the reasons explained in Division 1, supra.

        3. Wilson contends the trial court failed to show him deference as a pro se litigant but, rather, held him to a higher standard of courtroom procedure than it would have applied to a seasoned lawyer. Specifically, Wilson contends that the trial court erred when it refused to allow the witness to "give open colloquy and discussion" but, instead, required Wilson to ask the witness specific questions; refused to allow the witness to help him formulate questions; and refused to let the witness explain that a judge previously assigned to the case had said that the witness was qualified as an expert. As a matter of public policy, Georgia courts generally strive to resolve legal disputes on the merits, rather than on the punctilious enforcement of procedural rules and, therefore, may defer to a litigant's pro se status. Riley v. Dept. of Revenue, 295 Ga. App. 656, 657 (673 SE2d 49) (2009); Davis v. Lugenbeel, 283 Ga. App. 642, 645 (642 SE2d 337) (2007); Oduok v. Phillips, 269 Ga. App. 583, 584 (1) (604 SE2d 633) (2004). Still, pro se litigants are not exempt from the rules of evidence and applicable burdens of proof.Riley v. Dept. of Revenue, 295 Ga. App. at 657; Dockens v. Runkle Consulting, 285 Ga. App. 896, 899 (1) (648 SE2d 80) (2007). Furthermore, the trial court in this case repeatedly accommodated Wilson's procedural defaults, including his failures to file his portion of the pretrial order, to timely identify his expert, and to appear for a pretrial status conference. Having reviewed the proceedings, we discern no abuse of the trial court's discretion.

        Judgment affirmed. Andrews, P. J., and Doyle, J., concur.

--------

Notes:

        ^1. This is the third appearance of this case before this Court. See Wilson v. McNeely, 295 Ga. App. 41 (670 SE2d 846) (2008) (reversing a jury verdict in favor of McNeelybecause the trial judge should have recused herself), and Wilson v. McNeely, 302 Ga. App. 213 (690 SE2d 512) (2010) (vacating the dismissal of Wilson's complaint as an overly-harsh sanction for his failure to supplement his discovery responses and to submit his portion of a pre-trial order).

        ^2. Although the witness testified about his involvement in certain real estate transactions, his testimony unequivocally establishes that he participated in those closings solely in his capacity as a buyer and that he did not prepare any deeds of conveyance, prepare closing statements, have any affidavits signed, or facilitate the execution of any deeds of conveyance for the benefit of any seller, borrower, or lender. See In re UPL Advisory Opinion 2003‑2, 277 Ga. 472, 474 (588 SE2d 741) (2003) (Georgia law requires that an attorney be physically present to close a real estate transaction, that is, by preparing, and facilitating the execution of, deeds of conveyance for the benefit of any seller, borrower, or lender.); Daniel F. Hinkel, 3 Pindar's Georgia Real Estate Law And Procedure, § 26‑139 (6th ed., updated 2010).

        ^3. See AFLAC, Inc. v. Williams, 264 Ga. 351, 353 (1) (444 SE2d 314) (1994).

        ^4. OCGA § 24-9-67.1 (c) (2) provides:

In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in: 
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or
(B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and
(C) Except as provided in subparagraph (D) of this paragraph: 

(i) Is a member of the same profession;
(ii) Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or
(iii) Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and

(D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician.

This can be contrasted, though, with the rule laid down by the Supreme Court of Georgia in In the Matter of William N. Robbins, 266 Ga. 681, 469 S.E.2d 191 (Ga. 1996):

        [266 Ga. 685] Karen B. Bragman, Henry M. Perlowski, Arnall, Golden & Gregory, Atlanta, for William N. Robbins.

        James Benjamin Durham, Chairperson, Review Panel, Brunswick, for other interested parties.

        [266 Ga. 681] PER CURIAM.

        Respondent William N. Robbins challenges, on First Amendment grounds, Standard 18 of Bar Rule 4-102, prohibiting attorneys from advertising themselves as "specialists" except in limited circumstances. We hold Standard 18 is constitutional because it is sufficiently[266 Ga. 682] narrow in scope to achieve its purpose, i.e., to prevent the public from being misled about the qualifications of attorneys. We further hold that Robbins violated Standard 18, and that, under the circumstances, he should receive a public reprimand.

        The parties do not dispute the essential facts, as found by the Special Master and adopted by the Review Panel. Robbins, the sole shareholder of William N. Robbins, Attorney at Law, P.C., prepared and published a newsletter entitled Legal Beagle, copies of which were mailed to Robbins' former clients, as well as his and his employees' family and friends. An edition of the newsletter, announcing the return of a former attorney, stated, in part: "WELCOME TO Joe Maniscalco--Joe is an attorney who has returned to the firm with a specialty in personal injury and litigation."

        The newsletter further stated:

DON'T FORGET, we specialize in automobile accidents, motorcycle accidents, bicycle accidents, medical malpractice, workers' compensation and social security cases. Be sure to tell your friends about this. We appreciate referrals from our clients.

        Robbins has significant experience in handling the types of cases listed in the newsletter, and practices only in those areas.

        The State Bar filed a Complaint against Robbins, alleging that he violated Standard 18 of Bar Rule 4-102 which prohibits a lawyer from stating or implying that he is a "specialist" except: (1) where a lawyer is engaged in patent practice before the United States Patent and Trademark Office; (2) where a lawyer is engaged in admiralty practice; and (3) where a lawyer has been certified as a specialist in a particular field under a Bar approved program of legal specialization. While Standard 18 prohibits the use of the term "specialist" except in limited circumstances, Standard 19 permits a lawyer to communicate that he or she limits his or her practice to a particular field. ¹ Robbins admitted that neither he nor Maniscalco, referred to in his newsletter, had been certified as specialists in the areas stated in the newsletter through any Bar approved program. Robbins points to the fact that the State Bar has approved programs of legal specialization only in criminal and civil trial advocacy. ²

        1. We disagree with Robbins that the language contained in his [266 Ga. 683] newsletter is protected by the First Amendment to either the State or Federal constitutions. It is well established that attorney advertising is a type of commercial speech protected by the First Amendment. Florida Bar v. Went For It, Inc., --- U.S. ---- 115 S.Ct. 2371, 2375, 132 L.Ed.2d 541 (1995); Peel v. Illinois Attorney Registration and Disciplinary Comm'n, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990); In re R.M.J., 455 U.S. 191, 199, 102 S.Ct. 929, 935, 71 L.Ed.2d 64 (1982); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). However, that First Amendment protection is not absolute, and the government may prohibit entirely advertising that is misleading, per se, and may regulate advertising that is potentially misleading. In re R.M.J., 455 U.S. at 202-03, 102 S.Ct. at 937; Bates, 433 U.S. at 383, 97 S.Ct. at 2708-09. In the latter case, the government must assert a substantial interest in regulation and may only interfere with speech to the extent reasonably necessary to prevent the perceived evil from potentially misleading advertising. Peel, 496 U.S. at 107, 110 S.Ct. at 2291; In re R.M.J., 455 U.S. at 202-03, 102 S.Ct. at 936-37.

        Applying the foregoing to the advertisement in question, we have no difficulty upholding Standard 18 on its face and as applied in this case. We need not decide whether use of the term "specialist" or any variation thereof, is misleading per se because there is no question that term, in the context of lawyer advertising, is at least potentially misleading. Bates v. State Bar of Arizona, 433 U.S. 366, 383, 97 S.Ct. 2691, 2700, 2709. ³ There is sufficient evidence to support the State Bar's assertion that a substantial percentage of the public expects lawyers claiming to be "specialists" to have certain qualities which "non-specialists in the same field do not have, and to do a better job." Moreover, there is a reasonable possibility that a significant percentage of the public reading the term "specialist" in a lawyer's advertisement, might be misled into thinking an attorney has been "certified" or "designated" or has otherwise met objective standards established by a recognized organization. ⁴ Standard 18, particularly read in conjunction with Standard 19, is reasonably limited to achieve its purpose: that is, to allow attorneys to list their areas of practice without implying that they have special qualifications as established by objective standards by a recognized organization. ⁵

        [266 Ga. 684] Contrary to Robbins' argument, Standard 18 does not operate as a total ban on advertising an attorney's areas of expertise. Under the limited circumstances set forth in that Standard, an attorney may state he or she is a specialist. Otherwise, an attorney may list that his or her practice is limited to a certain area or areas under Standard 19. ⁶

        2. We next determine the appropriate level of discipline to apply in this case. The maximum sanction authorized under Standard 18 is a public reprimand. In considering any aggravating or mitigating circumstances in this case, we find the former dominates. This is Robbins' second disciplinary infraction involving false or misleading advertising. ⁷ Also, Robbins not only has substantial experience in the practice of law, but he has spoken at Bar sponsored seminars on several topics, including attorney advertising. Finally, despite his knowledge of the law in this area, Robbins has refused to acknowledge the wrongful nature of his conduct. ⁸ In mitigation we note only that Robbins, although not admitting wrongdoing, has been fairly cooperative with the Disciplinary Board during the proceedings.

        For the foregoing reasons, it is ordered that Robbins be issued a public reprimand for violating Standard 18, and that, pursuant to Bar Rule 4-220(c), such reprimand be administered in open court by the Chief Judge of the Superior Court of the county in which Robbins resides.

        Public reprimand.

        All the Justices concur.

---------------

1 Standard 19 provides: "A lawyer may state, announce or hold himself out as limiting his practice to a particular area or field of law so long as his communication of such limitation of practice is not false, fraudulent, deceptive or misleading. A violation of this Standard may be punished by a public reprimand."

2 Rule 16, Rules of Conduct and Procedure of the Review Panel of the State Disciplinary Board. State Bar of Georgia Directory and Handbook, 1994-95, p. 60-H.

3 In Bates the Supreme Court recognized claims regarding "the quality of legal services ... are not susceptible of precise measurement, [and] might well be deceptive or misleading ..., or even false."

4 Id. See also Trumbull County Bar Assn. v. Joseph, 58 Ohio St.3d 258, 569 N.E.2d 883, 884 (1991).

5 This is not a case where the advertising attorney has, in fact, received certification from an established organization pursuant to objective criteria. Compare Peel, supra, 496 U.S. at 101, 110 S.Ct. at 2288, distinguishing "statements of objective facts that may support an inference of quality" from "statements of opinion or quality."

We find disingenuous and without merit Robbins' argument that he did not violate the letter of Standard 18, and, accordingly, should not be disciplined, because he did not state that he or any member of his firm was a "specialist" but, rather, said that the firm "specialized" in certain areas. Nor do we find merit to Robbins' related argument that he should not be disciplined under a strict reading of Standard 18 because he stated that Maniscalco was a specialist, rather than stating that he, Robbins, was a specialist. See The Florida Bar v. Herrick, 571 So.2d 1303, 1307 (Fla.1990).

6 The Supreme Court has stated that listing areas of practice may be potentially misleading, In re R.M.J., 455 U.S. 191, 202-03, 102 S.Ct. 929, 937, and has suggested a government may require that such a listing be followed by a disclaimer to the effect that the state bar does not recognize the listed areas as specialties under objective standards. Id., see also Bates, 433 U.S. at 384, 97 S.Ct. at 2709. See e.g., Mississippi Bar v. Attorney R, 649 So.2d 820, 823 (Miss.1995).

7 In 1988 Robbins received a Review Panel reprimand for violating Standard 5 of Bar Rule 4-102 ("A lawyer shall not make any false, fraudulent, deceptive, or misleading communication about the lawyer or the lawyer's services.").

8 Robbins filed a Petition for Voluntary Discipline, without admitting any wrongdoing, offering to accept a Letter of Instruction pursuant to Bar Rule 4-204.5. The Special Master and the Review Panel properly concluded that level of discipline is not available after a Notice of Finding of Probable Cause and referral to a Special Master.

The Rule that the case refers to, while something I remember learning (and discovered, to my embarrassment, that I was  doing wrong), is no longer the same, apparently.  The current Rule addresses a completely different topic.