Lawyer competence in three dimensions

Suppose that a person has obtained a law degree from a recognized and accredited law school. Suppose further that this person has successfully completed the bar admission process in their jurisdiction and has been admitted to practice by the relevant authority. Are you satisfied, all other things being equal, that this lawyer is competent to practise law? I’d imagine you are.

Now, let’s start making other things less equal — but more realistic.

Let’s say this lawyer has been hired by a very small law firm where the staff consists of a part-time administrator and a legal secretary, subscriptions to major research databases have lapsed, and there is no centralized system for case management or deadline reminders. The lawyer is quickly buried under extensive drafting and research work on short timelines by impatient partners whose feedback is rarely constructive.

Let’s say further that this lawyer owes more than $150,000 in student loans, must commute (in non-pandemic times) 45 minutes each way to the office every day, has had to assume responsibility for a chronically ill parent who requires frequent trips to the hospital, and is increasingly dependent on painkillers to relieve crippling headaches and backaches at the end of each day.

Do you still think this lawyer is competent? You might say that technically, yes they are — the knowledge and skills they possessed upon their call to the Bar are all still there. But here’s a different question: Would you feel confident about hiring this lawyer to solve your problems or carry out your important tasks? Would you be comfortable — given their circumstances — that the lawyer could effectively apply their knowledge and skills to get the job done cleanly and correctly?

You might be less sure. I know I would be. And that’s why I think we need to start re-conceptualizing what we mean by “lawyer competence.”

Reaching into the future, in 3D

I spent much of last year researching and writing a report on lawyer licensing and competence for the Law Society of Alberta. One of the things that struck me during that process was that we define lawyer competence solely in intellectual terms — as the possession of minimum levels of knowledge and skill sufficient to satisfy regulatory requirements.

Possessing that knowledge and skill is obviously important — but it’s also incomplete, because it fails to appreciate that what matters to the client and to the public is not what the lawyer knows, but what the lawyer actually does with their knowledge.

The public is not protected by a lawyer who merely possesses knowledge and skill in a passive, static sense; the public is protected by a lawyer who applies that knowledge and skill correctly and effectively in the real world. The first understanding of competence is technical; the second is practical. I think the second one is better. Lawyer “competence” concerns clients much less than does lawyer “performance.”

I need to be careful here, because when I first discussed these ideas on Twitter, some people thought “performance” referred to the outcomes lawyers obtained for their clients or the experience they delivered. Client outcomes and experiences are super-important, but that’s not what I mean here by “performance” — I mean, can the lawyer actually deliver and implement the knowledge and skills they possess to solve client problems? Can they carry out the work? Can they perform it? That’s where the rubber hits the road — lawyer qualifications meet the public interest at the point of implementation and execution.

If a lawyer possesses what we consider the complete toolkit of competence — all the required knowledge and skills — but is unable to use those tools effectively because of various circumstances, is that lawyer competent to practise law? Our current regulatory model says yes. Clients who are inadequately served by lawyers who cannot apply their knowledge and skills would say no.

Let’s go back to our unhappy hypothetical lawyer at the start of this post. They’re grinding every day in a sketchy workplace with few quality controls or professional standards, and they’re afflicted at home with financial, family, and addiction issues. It doesn’t matter whether this lawyer got a perfect score on their bar exam — they are not in a position to apply their competence qualifications effectively, and that will ultimately be to the detriment of themselves, their clients, and the public in general.

I think regulators should strive to ensure an ongoing level of lawyer competence that encompasses not just the possession of baseline legal knowledge and skills, but also two additional factors that crucially affect the lawyer’s ability to apply their competence: the lawyer’s workplace environment, and the lawyer’s personal well-being. Regulators obviously cannot control these other two factors in lawyers’ lives. But they can take steps to strengthen and reinforce them.

● Workplace environment. Does the lawyer’s workplace help to promote, or at the very least support, their ability to apply their knowledge and skills to client matters? Is the lawyer given adequate technological and staff resources? Does the workplace maintain systems and standards in client intake, matter management, client communication, conflicts checking, and trust accounting? How sound is the firm’s “ethical infrastructure,” its systems and culture of professional conduct? The degree to which these questions have positive answers will affect the ability of lawyers within this workplace to provide competent service to clients.

It’s important to give your trainees a good office environment.

How can regulators oversee the workplace environments of the lawyers whose conduct they govern? Jurisdictions such as Australia and England & Wales have provided us with one good answer: entity regulation, whereby the individual lawyer is not the sole focus of regulatory oversight. An entity that provides legal services to the public should feature structural standards to ensure and enable the effective delivery of those services. In essence, you regulate not just lawyer competence, but also law firm competence.

● Personal well-being. Nobody pretends that practising law is a stress-free career. But there’s a difference between doing hard work for high stakes (the lot of every lawyer) and suffering from debilitating levels of pressure and anxiety. The latter description fits too many lawyers today: deep in debt, either trying to keep a practice afloat in a pandemic or constantly in fear of being laid off or “de-equitized,” unable to get or remain healthy, and so on. The results, as we already know, can include burnout, depression, addiction, and suicide.

How can regulators improve the well-being of the lawyers they regulate? “The Path To Lawyer Well-Being: Practical Recommendations for Positive Change,” the under-appreciated 2017 report of the National Task Force on Lawyer Well-Being, delivers on its title with 44 recommendations (and 88 tips in a separate mini-toolkit) to improve lawyers’ mental, emotional, and physical health. Regulators could implement the four recommendations targeted to them and strongly encourage all other stakeholders to do the same for theirs. They could make well-being not merely one component of competence, as many regulators are now doing, but consider well-being a critical catalyst without which a lawyer’s knowledge and skills cannot be effectively applied.

To be competent means that you can do something. Lawyer competence is functional, not abstract. It has three dimensions: knowledge and skills, workplace environment, and personal well-being. Regulators should start thinking about how they can ensure not just that lawyers possess the knowledge dimension of competence, but also that their personal and workplace circumstances allow them to effectively deploy that knowledge in service to clients. That’s the next step in the ongoing effort to continually enhance the competence of lawyers.



3 Comments

  1. Don Thompson

    Interesting analysis Jordan, and one I agree with.

    The challenge is: how to apply this analysis in the the real world of legal practice? You posit that regulators should be doing something – as I’ll describe, they are.

    But I fear the problem is deeply seated in the mores, cultures and attitudes of professions. Off the top of my head I can think of relevant horror stories about physicians, dentists and nurses who are caught in the same kinds of challenging circumstances as those you describe. Many of them come crashing down, and get caught in the web of their professional regulatory bodies; some regulators treat them as personal problems to be addressed, others treat them as matters for professional discipline. Historically, Canadian law societies have tended to take a hands off approach, unfortunately waiting until the practitioner has crashed and burned. But that’s (slowly) changing.

    Canadian law societies are looking at what they can do to address the kinds of workplace issues you’ve described. As with their colleagues in England and Australia, this takes the form of some kind of firm (or more generally, entity) regulation. It sets out requirements for the kinds of practice systems you’ve described. This is just being started in Nova Scotia, and is being carefully examined by some western law societies.

    Some work is also being done to re-conceptualize the approach to competence. Alberta has a program that identifies at risk lawyers, and takes a non-disciplinarian approach to helping them identify what’s getting in the way of competent practice, and then addressing those issues. Early results look promising.

    And as readers will have seen, regulators (law societies) and bar associations have begun to openly discuss issues of mental health. That conversation has been taking place in the background for years; now it’s up front and personal. And that can only be for the better.

    But the culture issue will ultimately have to be addressed, and that will take work by a number of actors: law schools, law firms, lawyers, regulators and bar associations. In my experience most lawyers fear and hate discussion about competence. They quickly translate discussions of ‘competence’ into allegations of ‘incompetence’. And as many have said to me during my career in law societies: “call into question whether I’m ethical, but don’t you dare call into question whether I’m competent.”

    Maybe we need to change the terminology; or maybe we just need to keep working on the challenge. Professional competence in the delivery of legal services is what we all want, and is pretty much what independently regulated professions say they are delivering.

  2. Lewis Eisen

    Great article, Jordan. LSA couldn’t have hired a better person for the job…

  3. Patrick J. McKenna

    Great article Jordan as it really made me think.
    Might there be a fourth dimension to lawyer competence – the continuing ability and personal time investment in learning and unlearning?
    Ask a lawyer, “what is it that you can do for clients today, that you could not do a year ago?” and see what kind of answer you elicit.
    There may not be enough attention being directed toward those lawyers, however competent, but who tend to do the same schtick day-in and day-out.
    I’m told that the total amount of knowledge being produced in any given industry is growing exponentially. In the medical profession, there are over 8000+ peer reviewed medical journal articles published . . . daily!
    Would any of us want to be treated by some medical specialist who was not keeping up on their craft, but with that kind of an explosion of data/knowledge, how is it even possible to stay competent?


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