Defining lawyer competence

Think about these two questions for a moment:

1. What would you want to know about a person before agreeing they should be allowed to become a lawyer?

2. What would you want to know about a person before agreeing they should be allowed to remain a lawyer?

How would you answer them?

These are the two fundamental questions that lie behind lawyer licensing and regulation — a person’s initial entry into, and continuing membership in, the legal profession. The main reason why lawyer licensing and regulation are so messed up is that the profession has not been asked — by itself or by anyone else — the two questions above, and it would not have a good answer to either one if it were.

Here, effectively, is how a typical lawyer might answer these two questions today:

I jumped through all the bar admission hoops. Now I get to be a lawyer for as long as I want.

For the record, that’s a lousy answer. It’s a response rooted in entitlement rather than duty, framing membership in the profession as a jealously guarded right rather than a granted privilege. It doesn’t speak to the responsibility lawyers owe to their clients, the public, and their society in exchange for the benefits and prerogatives bestowed by a law license.

But most of all, it says nothing about the skills and attributes that collectively justify a person’s claim to law licensure — who this person is, what this person has done, and what this person can do that warrants their initial and ongoing possession of a law license.

My definition is this:

The two questions at the start of this post are really about one thing: A lawyer’s competence. That concept lies at the heart of lawyers’ professional identity and function — yet the legal profession has not really defined what it means. Most examples cited by regulators are based on or resemble this definition from the ABA, its very first Rule of Professional Conduct, 1.1, the American legal profession’s Book of Genesis:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

That is an empty, self-referential definition, providing no illumination or guidance. It hinges on “reasonably necessary,” the all-inclusive and all-forgiving flexible measuring stick beloved by the legal profession that means whatever the person doing the measuring thinks it should mean.

Search the Comment to Rule 1.1 for specific standards or examples by which we might understand what competence means, and you’ll find a collection of vague terms like “relative,” “general,” “requisite,” “adequate,” “reasonably necessary” (again), and “will depend upon the circumstances.” Check out this beauty in Comment 5:

Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.

Competent practice is that which meets the standard of competent practitioners. Got it.

It speaks volumes about the legal profession that only now, two decades into the 21st century, are we making real efforts to define in practical terms what the “competence” of a lawyer actually means. The British legal profession, as usual, has been leading the way, as demonstrated by the Statement of Solicitor Competence from the Solicitors Regulation Authority and the CILEX Competence Framework from CILEX, the regulator of Chartered Legal Executive Lawyers, as well as this excellent report from the Legal Services Board.

In the United States, I’ve been especially impressed with the IAALS Building a Better Bar report’s “building blocks of minimum competence,” apparently the first real empirical effort to actually define baseline competency in American lawyers. The IAALS’s report has already been favourably cited by regulatory authorities in Oregon and New York looking to design new pathways into the legal profession.

Here in Canada, the Competency Framework from the Nova Scotia Barristers’ Society was the first step in this direction. Most recently, the Law Society of Ontario’s Competence Task Force released a report in June, “Renewing the Law Society’s Continuing Competence Framework,” that included a robust “working definition” of lawyer competence (see pp. 8-9), and asked for input from law society members on how the definition might be further enhanced.

As it happens, I’m a member of the Law Society of Ontario. And as you might have gathered if you’ve been reading this blog for awhile, asking me for input is like asking rain if it would like to fall.

So I prepared and sent in an extensive response to this request, which I won’t burden you with in full. But I did want to excerpt the essence of my submission, which was to try to define “lawyer competence” as clearly, concisely, and accurately as I could. What follows is my attempt to frame the competence of lawyers in both principle and practicality.

Specific vs. General Competence

At the outset, I drew what I considered to be an important distinction between two closely related understandings of “competence” — what I called specific and general.

“Specific competence” is what lawyers usually think of when the subject of professional competence is raised. You could define it as “the ability of a lawyer to effectively carry out a particular client engagement.” This type of competence is “specific” to the lawyer and to the particular matter that a potential client has brought to them.

A lawyer should ask themselves, explicitly or implicitly, about this type of competence on the cusp of every retainer they consider: “Am I qualified and able to take on this assignment? Do I have the knowledge, skills, experience, resources, time, and bandwidth necessary to carry out this engagement in a satisfactory manner and bring it to a satisfactory conclusion?”

Where do you dare me to draw the line?

For the most part, lawyers answer this question accurately: They know when to say, “Yes, I can do that,” or “No, that’s outside my comfort zone.” They understand their own capabilities and, averse to failure and embarrassment as they are, they shy away from the repercussions of acting beyond their capabilities. Difficulties arise with answers that lie somewhere between Yes and No: “I think so,” “Probably,” “I can figure it out as I go along,” and so forth. Any regulator will tell you that these answers frequently lead to unsuccessful engagements, unhappy clients, and negligence claims.

“Specific competence” is critical to the ability of members of the legal profession to carry out client tasks effectively. It’s incumbent upon every lawyer to understand the content and limits of their own specific competence and to accept only engagements that fit comfortably within its contours.

But that’s not really the subject of our current inquiry. We’re looking to understand what “lawyer competence” means outside the confines of any particular lawyer and any particular engagement.

Each individual lawyer regularly determines their own “specific competence” — but it’s the role of the regulator, acting on behalf of clients and the public, to determine whether a person is fit to begin acting (upon admission to the bar) or continue acting (as a licensed professional) as a lawyer. This is the “general competence” of a lawyer, and our professional status and identity depend on it.

A Definition of Lawyer Competence

In pursuit of this general understanding of the competence of lawyers, I offer the following for your consideration.

Lawyer competence is the demonstrated ability of a lawyer to meet high standards of integrity, proficiency, client service, civility, and wellness in the delivery of legal services. A competent lawyer:

  1. is ethical, honest, and trustworthy, [integrity]
  2. knows and applies the law accurately and effectively, [proficiency]
  3. advances clients’ goals, interests, and peace of mind, [client service]
  4. acts in a courteous and professional manner, [civility] and
  5. safeguards their own well-being. [wellness]

I’ll elaborate on each of these five aspects of lawyer competence, before making some general observations about the entire definition.

1. Integrity

This is the indispensable foundation of every good lawyer. The first element of integrity for lawyers is to be “ethical,” which encompasses both acceptance and application of the Rules of Professional Conduct, as well as the more general sense of “ethical” that people use in everyday contexts. “Honest” and “trustworthy” are deeply personal attributes that support a lawyer’s adherence to ethics codes.

If a person is honest, keeps their word, and can be trusted, that person has sufficient integrity to be a lawyer. Integrity is inseparably associated with “character,” a cardinal personal attribute essential to a lawyer’s ability to successfully fulfill all five of these elements of competence.

2. Proficiency in the Law

“Proficient” is a term positioned halfway along what you might call the “spectrum of effectiveness,” between “adequate” at one end and “expert” at the other. To be a proficient lawyer means to “know the law” — a lawyer can immediately detect the presence of a legal issue whenever one arises, and can quickly and accurately locate and acquire specific details about the law in order to advise and serve a client appropriately.

To be clear, “accurately” is not meant to rule out the possibility of error in legal knowledge and action. Competence is not a guarantee of perfection; it signifies a lawyer’s effective ability to routinely understand and carry out what the law enables and requires.

Everybody’s got advice they just keep on giving

3. Client Service

Simply put, this is the lawyer’s ability and commitment to “serve the client” — to prioritize the client’s concerns, look after their interests, and help bring them to a better position than when they began. Clients hire lawyers to advance their goals; but good lawyers also identify a client’s “interests” and strive to protect those too. “Peace of mind,” about which I’ve written before, refers to not just the satisfactory completion of a retainer, but also the conscientious performance of it.

Competent lawyers communicate regularly and proactively with their clients, connect with them in culturally appropriate ways, and display empathy as a matter of course. Competent lawyers are mindful of and attentive to their clients’ human needs.

4. Professional Civility

This aspect of competence represents a standard of personal behaviour, composure, and disposition that goes beyond what mere politeness requires, more than what society deems “reasonable in the circumstances.”

Anyone can be courteous if they’re treated well and fairly. It’s the mark of a truly civil individual that they can rise above unreasonable demands, difficult personalities, challenging situations, and ad hominem attacks (although this does not mean a lawyer should accept personal abuse or harassment, of course). “Professionalism,” a term often stretched beyond its meaning, can be taken here to reflect a person’s equanimity, patience, and fortitude.

5. Wellness

This last item is a recent entrant to conversations about the competence of legal professionals, but its arrival is timely. To an unprecedented degree, many lawyers today work long hours under tremendous stress while suffering from chronic fatigue; younger lawyers in particular suffer the additional burden of obscenely heavy debt loads. A legal professional who is unwell struggles to display integrity, be proficient, serve others, and be civil.

Physical, mental, and emotional well-being are not merely aspects of competence, but collectively form the foundation of a licensee’s capacity to do their job. In the words of the National Task Force on Lawyer Well-Being: “To be a good lawyer, one has to be a healthy lawyer.”

General Observations on the Definition

The Order of Aspects

Never believe someone who says, “These are in no particular order” — it’s always in their specific order. So it is with the five elements above, but not because they’re listed in order of importance. Rather, they’re bookends. The first and last aspects (integrity and wellness) apply to who the person is and what their personal condition is like, and together they frame the lawyer as a human being. The middle three aspects (proficiency, service, civility) apply to others — how the lawyer deals with the law, with their clients, and with the world in general — and together, they describe the real-life external impact of the lawyer’s actions. None of these five elements is more important than another. (Actually, that’s not true. Integrity is #1. Always has been, always will be.)

The Development Continuum

One strength of this definition, to my mind, lies in its equal applicability to both the initial licensing of a lawyer and a licensed lawyer’s ongoing ability to retain that status. As I wrote here at Law21 earlier this year, lawyer development is a continuum that starts before law school and continues even up to the point of a lawyer’s retirement — it is one process that requires unification, not three separate processes subject to three different administrators. One process of lawyer development requires one definition of lawyer competence that applies throughout — there’s no point using one standard for law school, another for bar admission, and a third for continued licensure and professional development. These five aspects of competence can apply equally to a lawyer on their first and last days in the profession.

“Demonstrated” Competence

Two adjectives in the primary definition of competence deserve some attention. “Demonstrated” means that the person seeking to become or remain a lawyer must have successfully established, to the satisfaction of a qualified third-party assessor, their possession of all five elements of competence. Rather than using “input”-based measures of competence (a three-year degree from an accredited law school, a grade higher than the state-mandated cut score on the bar exam, time served in apprenticeship), this approach uses “output”-based measures: “What kind of person have you shown yourself to be?” “What essential lawyer abilities have you proven you possess?” I’ll go into more detail on all these points in a follow-up post in the coming weeks, “Demonstrating lawyer competence.”

Did you think I’d just accept you in blind faith?

“High” Standards

I also modified “standards” in the definition with “high,” and I did so because I wanted to ensure that the threshold for becoming and remaining a lawyer was really demanding. I mentioned earlier that I used “proficiency” to mean more than mere adequacy in knowledge of the law, but that standard really applies to the entire definition. It should be hard to become a lawyer, and it should be hard to remain a lawyer — not because the person who wants to be a lawyer is the wrong colour or gender, or comes from the wrong socio-economic background, but because it’s incredibly important that lawyers are good at what they do. Would you describe yourself as a “competent lawyer” or a “good lawyer”?  Obviously, as the second — so make “a good lawyer” our desired standard of competence.

Continuing Qualification

You might have noticed that I keep referring to the process of both “becoming” and “remaining” a lawyer. We’re familiar with the “becoming” part — the lawyer licensing process — but maybe not with “remaining.” As suggested at the start of this post, most lawyers consider their law license to be permanent and irrevocable for any reason other than malfeasance. The suggestion that they’d need to prove themselves worthy to retain that license on a regular basis would be considered absurd, if not insulting — yet the Legal Services Board is considering that idea seriously, and they will not be the last regulator to do so. “Re-qualification” is a concept lawyers had better become accustomed to, and our definition of competence should be ready to accommodate that turn of events.

I could go on at length — the good people at the Law Society of Ontario can assure you that I have — but I’ll stop here and submit this to you for your assessment. Defining lawyer competence will be the work of multitudes, and not only lawyers will be involved. I’m looking to further refine and improve this definition, so please let me know where and how you think the foregoing gets it right and/or goes off track.

But don’t take too long. We need to define lawyer competence fully and correctly, and that’s not an overnight project. But the pace of regulatory change is accelerating rapidly, and a large number of people and institutions outside the legal profession is taking an increasingly active interest in how we set and enforce standards of who we are and what we do.

Lawyers can differ on what “lawyer competence” should mean. But I think lawyers would all agree that we do not want that meaning decided without our participation or consent.



4 Comments

  1. Mazyar Hedayat

    Jordan, great piece (as always).

    When I started to read the article, I noticed you were being rather academic in your treatment of the topic. Since when are “competent” lawyers the ones who get hired? Make Judge? Become Bar Association leaders? Remember, it isn’t what you know, it’s … you get it.

    Then I noticed, later in the piece, you were working up to your own definition of “competence.” Again, this is academic. I can summarize your piece in this phrase: 10,000 Hours. You know, the Malcolm Gladwell book. I’m sure you know the premise. Takes about that long to really get the hang of … anything. So, we could say that the more experienced lawyer (read: old) is most competent.

    Except, that’s not always true either. Which makes me wonder (again) why the piece? Just an exercise? Just thinking out loud. As I said though, great piece.

  2. Gary Luftspring

    An interesting piece Jordan. Graduated licensing is another area you may want to tackle. Why do we need to be everything to everyone. Most professions have graduated licensing why don’t we embrace instead of waiting for its imposition

  3. Deborah Merritt

    An excellent piece! My one suggestion (since you ask for them) is that your description of proficiency feels too limited to IRAC (issue-rule-application-conclusion). In the law practice I have done, there is much more to proficiency. E.g., understanding local customs and situating the legal problem within a broader problem context.

    As a prosecutor, I sometimes see first-time defendants who hire their family’s business lawyer to represent them on a misdemeanor charge. The lawyer identifies the legal issues, knows the rules of law, and can apply them to the facts. But the lawyer has no idea about the usual pleas for that charge or how to leverage factors like the clients’ willingness to attend AA meetings, get a substance abuse evaluation, etc. The lawyer often gets a worse deal than a more experienced criminal defense lawyer would have gotten.

    You might term that a lack of specific competence, but I think the business lawyers who undertake these misdemeanor defenses believe they are competent partly because we emphasize IRAC as the gold standard of proficiency in legal work.

    I suspect criminal defense is not unusual in this way. Proficient representation requires something more than just the law and the facts. There’s also an awareness of custom and context. What do you think?


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