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.

The legal regulation revolution

Almost exactly three years ago, when hardly anyone was talking about a pandemic, I wrote about the California State Bar’s brand new Access Through Innovation In Legal Services Task Force, of which I remarked:

The chances that California’s task force will result in fundamental reform to law firm ownership rules in the United States are higher than they’ve ever been. That doesn’t mean they’re particularly high. … It would be foolhardy to bet against the lawyers [opposing change] here. But if you were ever going to make that bet, this would be the time to do it.

Sixteen months ago, hours before the NBA cancelled its 2019-20 season and North Americans finally began to realize how much trouble we were in, I wrote about a plethora of legal regulation reform task forces, of which I said:

By end of day on March 31, ten American jurisdictions, three Canadian provinces, the ABA, and the US Conference of Chief Justices will have either launched task forces to examine legal regulation reform or have taken significant steps towards encouraging such reforms or actually implementing them. … This wasn’t so much a series of cause-and-effect occurrences as a tectonic shift in the subterranean landscape of the law, manifested in several locations in less than a year.

Today, as North Americans venture briefly out of lockdown (rest assured, we’ll be back wearing masks and socially distancing throughout the fall and winter), we’re seeing the results of these committees, task forces, and other reform efforts arrive, during one of the craziest periods of upheaval the legal profession has ever experienced. It seems like the right time to step back and consider the extraordinary shock-waved landscape of legal regulation change, and what it means for everyone.

This is a long read, folks. Settle in as we look at four different dimensions in which law firm ethics models, legal services regulation, and lawyer licensing and competence standards are all beginning a process of transformation.

1. Regulatory changes that affect lawyers’ businesses

The star of this show is the state of Arizona, which last August repealed rules forbidding lawyers from sharing fees with, or making equity ownership in law firms available to, people who aren’t lawyers.

The state Supreme Court opened the doors to non-traditional legal services providers, and by the following spring, had authorized three such providers to begin operations, all of which were essentially multi-disciplinary partnerships with lawyer owners. Nine other applications were reportedly pending as of May, including one from online legal services giant Rocket Lawyer, although the Supreme Court’s Committee on ABS has convened just once since then and has issued no new approvals.

Setting aside for the moment Arizona’s other reforms (further below), note that three professional services firms whose owners included lawyers were the first to take advantage of the removal of Rule 5.4’s restrictions on non-lawyer ownership. This is not the apocalyptic scenario prophesied by ABS opponents — unethical fly-by-night “non-lawyers” pouring into the market to swindle unsuspecting clients with ten-dollar wills and empty promises.

But it is consistent with the experience in England & Wales, where the legal profession “has used the flexibility [of ABS] to innovate and diversify,” a British analyst observed. “Many firms convert to an ABS structure to enable non-lawyer (including corporate) owners, even as far as setting up Employee Ownership Trusts. … The profession has also used the opportunity to offer a greater breadth of services to clients through joint ventures and non-legal expertise. We’ve also seen other professionals, such as accountancy firms and financial advisers, become ABSs to add legal services to their menu of services.”

It took awhile for the English and Welsh legal profession to grasp that ABS was an opportunity for lawyers, rather than a threat to the profession or to the public. But grasp it they did, and today, more than 1,200 ABS licenses have been issued, many if not most to entities with lawyers owning or involved with them. The ABS reforms of the Legal Services Act 2007 are 14 years old. It’s not an “experiment” anymore. It’s just the way things work now, and they work just fine.

It should take the Arizona legal profession considerably less than 14 years to see the advantages of ABS status. Your law firm can bring in more professional talent; you can offer more professional services; you can deepen your capital pool; and you can spend more on marketing and technology. Arizona’s lawyers will get it, and once they do, other states’ lawyers inevitably are going to want the same opportunity. (See Florida, below.)

2. Regulatory changes that affect the wider legal market

(a) Sandboxes and Laboratories

As I told ABA Bar Leader the other day, the legal profession and the legal market are no longer synonymous, and the divergence of these two sectors is going to widen and accelerate in the coming years. As fascinating and potentially momentous for lawyers as Arizona’s move is, there are other developments in other states that will have a more profound impact on the supply side of the legal market, by opening doorways to the legal market for people who aren’t lawyers and companies that aren’t law firms.

You know about Utah’s groundbreaking regulatory sandbox (recently given an extended seven-year runway), which has already approved more than two dozen non-traditional applicants to deliver legal services in the state. Utah deserves immense credit for stepping forward as the first mover in the regressive and protectionist American legal market. But while they were first, they will be very far from the last or biggest.

California has been talking about a sandbox for a few years now, and I’m hearing some encouraging signals emerging from the State Bar of California’s Closing the Justice Gap Working Group that’s developing recommendations in this regard. California, with more than a quarter-million (!) licensed attorneys, would make a massive splash if it jumped into this pool, although that likely won’t happen before the Working Group’s reporting deadline of September 2022. Utah, meanwhile, is already out there swimming around, inviting others to come on in, the water’s fine.

Florida listened. And it’s hard to overstate how important is the Sunshine State’s entry into this space. The June 2021 final report of the Florida Supreme Court’s Special Committee to Improve the Delivery of Legal Services (note carefully the names given to these task forces) recommended the creation of a Law Practice Innovation Laboratory Program. Structured similarly to Utah’s sandbox, Florida’s laboratory would run for three years (based on experiences elsewhere, expect that period to be extended) and would invite both new and traditional providers to experiment with innovative legal services provision currently prohibited by regulation.

But the Committee went further. It also recommended allowing non-lawyer law firm employees who directly support the firm to take a minority ownership interest in the enterprise. This is a half-step towards true reform — “passive ownership” (e.g., outside investment), which is needed to really enable expansion at scale, remains verboten — but a half-step by a giant is still a long stride.

And Florida is a giant: The state has 77,000 lawyers, and although a surveyed majority of them don’t want to see anything change about legal regulation, lawyers don’t own or control the legal services sector, so while their opinions on these topics are interesting, they are not determinative. It’s to the Committee’s credit that it recognized that.

The Florida report’s Laboratory recommendation cited not only Utah’s experiment, but also two developments north of the US border. Last August, a British Columbia Law Society Task Force recommended the creation of a regulatory sandbox, which received the green light a few months later. BC’s innovation sandbox has already approved six applicants, garnering positive attention for its early commitment to increasing access to justice. Earlier this year, the Law Society of Ontario approved a report from its Technology Task Force recommending a regulatory sandbox in Canada’s most populous province, albeit one restricted to legal services that are “technology-based.”

These two provinces will help lead a much-needed transformation of Canada’s legal regulatory landscape (more on that below), but they’ll provide encouragement to US reformers as well. Those reformers might now also include the State of Washington.

Washington once held the unofficial title of the US’s most progressive legal regulatory jurisdiction, thanks to its late and lamented Limited Legal Licensing Technician project. Now, it’s climbing back into the race. In June, the Washington Supreme Court’s Practice of Law Board released a blueprint for a legal regulatory sandbox. The proposed sandbox would open the door to applicants with non-lawyer partners, although it also comes with a caveat: Successful candidates for the sandbox must show an access-to-justice component to their service. (A similar requirement was briefly floated for the proposed California sandbox, which I consider unnecessarily restrictive.)

I wrote about regulatory sandboxes at Slaw late last year, as well as earlier this year here at Law21, so you can peruse those posts for my further thoughts on this topic. But my overall view is that sandboxes’ most important contribution to the regulatory reform effort is to “normalize” change.

Every jurisdiction that develops a sandbox makes it easier for others to do so; every sandbox that finds a non-traditional legal services provider safe and reliable begins to reverse the demonization of “non-lawyer providers” that the legal profession has been engaged in for decades. Utah got things started; Florida has pushed ahead hard; and California could change everything next September. But I think other dominoes — North Carolina? Illinois? Connecticut? — will fall before then.

(b) Legal Para-Professionals

But wait, there’s more! Modelling their efforts on Washington’s LLLT program, and following (whether they realize it or not) Ontario’s groundbreaking licensing of independent paralegals in the 1990s), a number of American states have created and/or authorized legal paraprofessional programs as a direct response to the access crisis.

From New York State’s pioneering Court Navigator program, to Utah’s new Licensed Paralegal Practitioner program, to Legal Technicians in New Mexico, to Legal Paraprofessionals in Minnesota, to New York (again) potentially licensing social workers to perform legal tasks, to Ontario’s (again) potential Family Legal Services Provider Licence, regulators across North America are recognizing the vast range of legal needs that lawyers are either unable or unwilling to meet, and are arranging for technically trained professionals to start filling that gap.

Arizona requires special mention in this area, thanks to two innovative programs. The first is the establishment of a Licensed Legal Advocate, who can give limited legal advice on civil matters stemming from domestic violence, including protective orders, divorce, child custody, consumer protection and housing. LLAs are to be trained through a pilot program created by the Innovation for Justice Program at the University of Arizona College of Law.

Even more noteworthy are Arizona’s new Legal Paraprofessionals, authorized as part of the same reforms that swept away Rule 5.4 restrictions on law firms. The Legal Paraprofessionals will practice as affiliate members of the Arizona State Bar and be subject to the same ethical and rules considerations as lawyers.

Arizona Supreme Court Justice Ann Timmer has made the point that lawyers shouldn’t oppose legal paraprofessionals — they should hire them, to get basic work done more cost-effectively. And we come back again to the idea that lawyers and law firms — and ultimately, their clients — can be prime beneficiaries of these changes.

3. Reports recommending changes to lawyer licensing and bar admission

This topic intrigued me long before I wrote a report for the Law Society of Alberta last year recommending numerous amendments to the province’s licensing and competence assurance system. So when I read about the remarkable proposals delivered in June by the Oregon State Bar Board of Bar Examiners’s Alternatives to the Bar Exam Task Force, I immediately recognized them as potentially revolutionary.

The task force asked the state Supreme Court to endorse two additional pathways to licensure as alternatives to the bar exam:

I’m concerned that the initial reaction of the Supreme Court to the recommendations was lukewarm, judging from the comments of its chief justice. The task force was correct to note that these proposals do not seek to replace the bar exam and are, in fact, much more rigorous and reflective of practice-ready competence than is the exam. I hope the court’s “mulling over” period is a short one, because these proposals represent an extraordinary opportunity to overhaul the unfair and ineffective bar admission system.

The Oregon Supreme Court might take further notice that it is not the first judicial body to receive such a request. Also in June (what it is about that month?), the New York State Bar Association’s Task Force on the New York Bar Examination released its Third Report and Recommendations, which was approved by the NYSBA House of Delegates that same month.

Media coverage of the report centred on its call for the state to withdraw from the Uniform Bar Exam and develop its own bar admissions test, in a section that included a brutal takedown of the UBE and the National Conference of Bar Examiners. But more importantly for our purposes, the Task Force reiterated its belief that:

New York should consider providing two alternative pathways to admission: (a) a pathway for admission through concentrated study of New York law while in law school; and (b) a pathway for admission through supervised practice of law in New York.

Attainment of minimum competency to practice law in New York can, we believe, be demonstrated by law school achievement as well as by actual practice experience. An examination is not necessarily the exclusive means to judge minimum competence. Alternative pathways should be considered either as stand-alone alternatives or as complements to a written examination.

As far as I can tell, the report is now in the hands of the New York State Court of Appeals, which has been asked to appoint a working group in conjunction with the Board of Law Examiners to develop a New York Bar Examination. Will the Court of Appeals also consider the report’s recommendations concerning law school study and supervised practice? Your guess is as good as mine, but everyone, including the Supreme Court of Oregon, should watch closely. Because also watching New York is … California.

In June — of course — a Joint Supreme Court/State Bar Blue Ribbon Commission on the Future of the California Bar Examination was established “to develop recommendations concerning whether and what changes to make to the California Bar Exam, and whether to adopt alternative or additional testing or tools to ensure minimum competence to practice law.”

And the members of the California commission have made it clear they want to hear from the NYSBA Task Force — maybe because the first mandate given to the commission was to determine “whether a bar exam is the correct tool to determine minimum competence for the practice of law, and specifications for alternative tools, should the commission recommend that alternatives be explored and adopted.”

Hey, did someone say “minimum competence”? Say hello to the Law Society of Ontario’s Competence Task Force, which published a report (in guess which month) titled “Renewing the Law Society’s Continuing Competence Framework”. The report identified key themes that it might use to create new competence programs and requirements, and is actively seeking input from LSO members into these questions. As it happens, I’m an LSO member, and I do have some input, and I’ll address this report and its implications in my next Law21 post.

But suffice to say that the LSO has seized upon the fundamental underlying issue in all of these developments: What are the minimum competencies required to receive or maintain a license to practise law? Sooner or later, every inquiry into the nature of the law degree, the validity of the bar exam, and the effectiveness of the lawyer licensing process is going to come back to this question.

4. Developments relating to the structure and governance of legal regulators

One of the reasons — maybe the main one — that California has even been able to convene and support committees and task forces considering sandboxes and re-regulation is the massive restructuring applied to the State Bar of California back in 2017.

Formerly a unified bar, where lawyer membership was obligatory and the lawyer regulatory and advocacy roles existed uneasily side-by-side, the SBC was split into two organizations: the California Lawyers Association, to represent lawyers, and the newly re-commissioned State Bar of California, to regulate them. The new SBC immediately set about addressing governance reform to deliver on its public-protection mandate, commissioned a groundbreaking report into legal market dysfunction by Prof. Bill Henderson, and hasn’t looked back since.

We’ve not seen structural reform on this seismic a scale in any other US jurisdiction since California’s big split. But it’s worth noting an interesting recent development in Texas, where a circuit court of appeals ruled earlier this month that the Texas State Bar is mostly justified in requiring lawyers to pay membership dues.

As Prof. Milan Markovic noted, the court found the Bar could not apply mandatory dues to activities outside the Bar’s “core regulatory functions,” but most of the Bar’s activities were germane to those core functions, so they need only stop engaging in the “non-germane” ones (including law reform advocacy). Neither side got what it really wanted from the appellate decision, and the matter will return to the trial court.

But the circuit court did point to other remedies: “Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s.” Several other major states also have unified bars, and litigation similar to this case is apparently underway there. It’s likely that the plaintiffs in those cases, and perhaps the courts hearing them, will take note of the circuit court of appeals’ suggestions in this regard.

The reason I’m going into such depth here is that I view California’s 2017 decision to split its unified bar into two organizations as immensely important for US legal regulation.

It seems unlikely to me that a state bar or court-appointed entity with both regulatory and representative functions will ever truly reform regulation, because reformation carries too many risks of potentially undermining lawyers’ dominance of the legal market. The conflicts of interest are too large to overcome. Lawyer regulation and lawyer representation simply don’t belong under the same roof.

The Clementi reforms in England & Wales that eventually resulted in the Legal Services Act 2007 were driven in part by a well-founded conviction that the Law Society of England & Wales was not dealing properly with client concerns and complaints about lawyers’ performance, precisely because of its dual role. Among Clementi’s recommendations was the separation of representation from regulation. Canada drew that distinction almost a century ago, vesting regulatory authority in statutorily created law societies and coming up with the Canadian Bar Association to represent and advocate for lawyers. Achieving the same outcome in the US — no time soon, I grant you — would truly be a paradigmatic change.

And even in Canada, longstanding regulatory traditions might be in jeopardy. Earlier this month, the Law Society of British Columbia announced it had retained British consultant Harry Cayton to “conduct an independent review of law society governance and how it meets the needs and priorities of a diverse public and legal profession.”

Mr. Cayton is well-known in BC, thanks to his Inquiry into the College of Dental Surgeons of British Columbia, which recommended a thorough overhaul of the governance and regulation of these and other regulated health professionals and which was accepted by the government soon afterwards. Key among those recommendations for our purposes was this: Regulators’ boards should be smaller, should be appointed not elected, and should draw only half their members from the profession they regulate.

This is dramatically different from the status quo in Canadian law societies, whose directors (“Benchers”) are almost all lawyers who are elected by other lawyers in public campaigns (a small minority of Benchers are appointed from outside the profession). Whether this system ever worked to benefit the public interest, it’s increasingly evident that some current and prospective Benchers represent only the interests of lawyers and use their campaigns to fight regressive ideological battles.

Canada’s regulatory system for legal services has always been dominated by lawyers. I have no idea what conclusions Mr. Cayton will come to when he analyzes governance at BC’s legal regulator in light of the law society’s public-interest mandate, and I would never presume to pre-judge.

But I’ve been advising law societies here for quite some time now that diminishing or even removing lawyer control of law societies’ boards of directors would utterly change the nature of legal regulation in this country — in my opinion, for the better. As was the case in California, and as was suggested by the Clementi Report, there is too much potential for disqualifying conflict of interest, and the appearance of regulatory capture, when lawyers are effectively in charge of deciding how legal services are to be provided, and by whom.

Conclusion

There’s little value in proclaiming a revolution is underway once the citizenry has flooded into the streets with banners and protest songs. It’s kind of obvious, at that point, that change is upon us. Likewise, I don’t see any point in waiting until a majority of North American jurisdictions allow non-lawyer ownership of law firms and the widespread delivery of legal services by non-lawyers is commonplace. That day is closer than it’s ever been, although it’s also not going to be tomorrow: Plenty of jurisdictions, like Indiana, are still holding the line against regulatory reform in legal services.

But I think the tipping point has been reached. In the same way that we’re not going back to the pre-COVID world or the pre-remote-work office, we’re not going back to the pre-sandbox, pre-Arizona era of legal services regulation. There’s too much momentum now. There’s too much genuine interest among lawyers in regulatory positions (not to mention in law firms) in doing things differently. There’s too many precedents set by other states and provinces for decision-makers (especially judges) elsewhere to ignore. This train is headed in one direction.

The pandemic is forcing every one of us to re-examine our lives, to rethink our assumptions about what we do and how we’re doing it. Revolutions are starting to break out all over, as big as generations and as small as you or me. I’ve been urging lawyers for years to look around at their businesses and ask, “If we weren’t already doing it this way, is this how we would do it? If we had never done this before, is this how we would start?” And now we’re all asking those questions, as a society. We’re all asking those questions, as a profession. I’m asking this question, of you.

I think today, right now, is the time. It’s time to leave behind who and what we were, and embrace who we want to be, what we can be, and what everyone else out there needs us to be. It’s time for change.

The future of legal sector reform is now

I was happy to contribute an article to the latest issue of leading European legal industry magazine Legal Innovation and Technology Today. You should read the entire issue, which includes great pieces about DEI in the legal sector by Christy Burke, agile law firms by Chris Bull, and key corporate legal trends by Ari Kaplan.

My article, “How technology can help revolutionize legal education and lawyer development,” dives into some serious detail about the catalytic role tech can play in reforming the lawyer formation process. I’d encourage you to read the original piece in its entirety, but I’ve reproduced an excerpt below — and I encourage you to read to the end, where I share some breaking news about legal regulation reforms happening in real time.

The legal profession, to its credit, has made significant progress throughout this century improving law firm business practices, lawyer-client relationships, and the use of technology. But there’s one area of professional life that needs innovation even more: the lawyer formation system. How we go about educating, licensing, training, and monitoring the competence of lawyers desperately requires an overhaul. Technology can play a critical role in getting us there.

The Problem. Law degrees and bar admission courses drain several years and significant sums of money at the start of a legal career while providing little preparation to succeed in that career. Licensing bodies certify lawyers before they’ve developed sufficient skills to serve clients, run firms, or manage their own businesses and personal well-being. Law licenses are effectively permanent and unconditional, creating no obligation for lawyers to demonstrate their continuing fitness to practise.

In the result, many new lawyers experience whiplash when they enter practice, often deeply in debt, to find working environments disconnected to their expectations and pressures unlike any they’ve been prepared for. Unready to practise law and lacking support for ongoing skill development, many sink into despondency and depression, often leaving the profession altogether.

The Solutions. We can do better than this. The archaic and fragmented early-years development of lawyers can be unified under a single modern development process that guides professionals along a “formation continuum,” from their first day of law school through their first day of competent, confident, independent practice.

But attempts to reform the lawyer development system will be opposed both by deeply entrenched interests in academia, licensure, and regulation, as well as by equally entrenched habits and assumptions in the legal profession that “this is how we’ve always done it” (or in particular, “this is how I had to do it”) and “there’s no other way it can be done.” The time to change all that is right now.

The Role of Technology. The pandemic forced lawyers to rely heavily on tech in everyday practice, and most were pleasantly surprised by the ease of the transition and the effectiveness of their tools. Many chief judges have publicly stated that there’s “no going back” to the offline-only world of justice, while most law firms have found the majority of their lawyers unwilling to return to the office full-time.

Whether we wanted it or not — whether we were ready for it or not — we’re already a changed profession, tech-reliant and increasingly tech-comfortable. Technology should now be applied to help solve the myriad problems with the lawyer development system.

Legal Education. The online legal education experience of the pandemic should be integrated with the in-person version and become more sophisticated and student-centred. Professors could record their lectures and post them online for students to view before class, allowing in-person class time to be converted to discussion, collaboration, breakouts, and workshops. Guest speakers could be Zoomed in from anywhere to answer student questions or assess advocacy skills.

Law schools could also offer degrees or certificates in an online format for working parents, retirees, or community leaders who don’t want or can’t afford the time and financial commitment of a full degree. “Asynchronous law diplomas” could be both a steady revenue stream for schools and a powerful way to raise public legal knowledge and problem-solving capability.

Lawyer Licensing. Technology could help new lawyers get more hands-on practice experience before they’re admitted to the profession. An aspiring lawyer in an urban centre could be “apprenticed” to a small-town practitioner, spending one week on location and three weeks at home doing legal work, speaking with clients, drafting documents, and learning the ropes of the law business. Regular video meetings with the veteran lawyer could help ensure the trainee is learning the core competencies required for licensing.

The experience of working in a law firm need not even require a real firm. The licensing process in some Canadian provinces includes several months spent working in a “simulated law firm,” where bar applicants field emails from lawyers, videoconference with actors playing clients, and become accustomed to the rhythms and requirements of practice. Simulated firm experiences could also be used to prepare trainees for real-firm exposure, accelerating their development.

Lawyer Competence. Rather than obliging lawyers to complete a minimum number of hours of CLE programming on any topic they choose, we should create a robust competence framework for the legal profession to help lawyers self-assess their proficiency throughout their careers. Technology can help us progress towards solutions.

Regulators could design online quizzes along the lines of, “How proficient are you?”, in which lawyers are required to rate their own levels of confidence on the core competences of lawyering, and perhaps answer a few basic questions. Their final score could be shown to them, along with suggestions that certain areas could benefit from upgrading.

Regulators could also create online video and resource packages that guide lawyers through the most common sources of client complaints and malpractice charges, including retainer letters, time management, and client communication protocols. Lawyers could be invited (or obliged) to complete these “self-guided mini-courses” to maintain their competence in core areas of public interest.

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That’s the excerpt from my article — now for some breaking news.

We’ve officially passed the point of speculating about how nice it would be if things were a little different in how we license lawyers and regulate legal services. Wishcasting was yesterday — today is about making change happen, for real. A swift glance around North America shows us that massive shifts in the foundation of legal regulation and lawyer formation are happening right now. Dominoes are falling fast, knocking down others and generating waves of change across the legal world.

You already know about the legal innovation sandboxes in Utah, British Columbia, and Ontario, and the revolution in legal regulation unleashed in Arizona. But just in the past few days — right up to this morning — we’ve seen some extraordinary developments in lawyer licensing and legal regulation and the United States:

The fact is, this is no longer about “the future of legal services.” This is happening right now. The process of reforming legal regulation and lawyer licensing has begun in earnest. Technology will play a major role in this process, as my article suggests. But far more important than the tools of reform are the reformers themselves — the people who are ready and willing to lead this process forward.

This is your chance to step up and become one of those leaders. If you still need an invitation to take part, here you go.

The CASE for standards of supervised practice in lawyer licensing

Speaking to a US-based regulatory conference last month, I remarked on a key difference between the Canadian and American lawyer licensing systems: “In Canada, we decided that nobody should be allowed to practise law until they’ve spent a period of time performing supervised lawyer work in a legal services environment.”

This mostly refers to the “articling year,” a decades-old tradition in Canada that mirrors similar customs in most other countries that require a person to complete a term of supervised practice or apprenticeship before they are granted admission to the profession. (Canada has a few other supervised practice options, which we’ll talk about a little later.)

In the United States, one of the very few countries that don’t have a similar requirement, interest in supervised practice as a replacement for the bar exam spiked during the pandemic and led several states, including California, Florida, and Illinois, to temporarily grant bar admission to aspiring lawyers if they completed hundreds of hours of practice under the supervision of an experienced practitioner.

A few Americans would like to see supervised practice become a permanent alternative to the bar exam, and I’ve often heard US lawyer friends comment admiringly on our articling requirement. But the reality of articling is less admirable than it might appear from a distance. In theory, it makes sense for an experienced practitioner to oversee an aspiring lawyer’s learn-the-ropes performance of lawyer tasks, providing valuable experience and feedback to the trainee while ensuring the client is competently served. In practice, that’s not often how it works.

Bar admission: Harder than you might think.

A supervised practice requirement for bar admission is terrific only if it’s done properly, fairly, and systematically. As I’ll describe below, articling in Canada is riddled with problems on all these counts. So I want not only to encourage countries that haven’t adopted supervised practice requirements (🇺🇸) to do so, but also to challenge Canada (and other countries) that do mandate this step to be more conscientious and vigorous about making sure it actually works.

Here are the most serious problems afflicting articling in Canada:

1. Unsafe and unfair: A survey in 2019 by three western provinces found that about a third of all articling students had experienced discrimination or harassment during their articling term, while another province’s survey in 2018 placed the total at more than a fifth; both these surveys likely under-report the extent of the problem. Moreover, systemic discrimination in law firm hiring means racialized students and internationally trained lawyers have a harder time accessing articling positions. The excuse of “cultural fit” has allowed hiring choices in articling to reinforce traditional barriers into the profession against women, minorities, and immigrants.

2. Absence of assessment: Standards of acceptable competence outcomes for an articling term in Canada are a very mixed bag. While each province provides lists of what a student is expected to learn, do, and experience during articling (see examples from Nova Scotia, Alberta, Ontario, and British Columbia), only some reference the Federation of Law Societies of Canada’s National Entry to Practice Competency Profile for Lawyers, while others simply state that the student should receive “practical experience and training” in these areas. More importantly, assessment amounts to little more than the supervisor’s prospective promise (or retrospective assurance) that everything on the lists will be or has been covered off.

3. Fewer opportunities: Articling positions generally are diminishing, leaving a growing number of bar applicants unable to fulfil this requirement and start their careers. Corporate clients have led market changes that reduced the demand for low-skilled lawyer labour: they have insourced basic legal work, re-directed that work to law companies and ALSPs, or fed it into the fast-growing maw of legal technology. Over the last couple of years especially, firms themselves have followed suit, reducing further the entry-level tasks available to novice lawyers. Ontario’s articling shortage prompted the approval of alternatives like an Integrated Practice Curriculum at two law schools and a Law Practice Program in two cities; British Columbia and Alberta are now examining new supervised practice options for similar reasons.

In some ways, articling is to Canada what the bar exam is to the United States — the traditional final stage in the licensing process, so rooted in the professional culture that its rampant flaws are ignored or excused on the grounds that “we’ve always done it this way” and “if I had to go through it, so does everyone else.” If we want to maintain our status as a self-governing profession that purports to apply robust, verifiable competence standards for admission to its ranks, then we need to do better than that.

Res ipsa loquitor.

Whether we’re Canadians talking about improving on articling or proposing superior methods of supervised practice — or whether we’re Americans looking to create a supervised-practice requirement of our own for bar admission — we need to establish a threshold standard for supervised practice, one that would satisfy skeptical outside observers that newly licensed lawyers demonstrably possess the entry-level knowledge, skills, and attributes of law practice.

I recommend that regulators and bar admission overseers create such a standard and integrate the following four elements into their lawyer licensing processes. And because people seem to like acronyms, I’ve arranged these elements to make my CASE that supervised practice standards should be:

Consistent: To ensure fairness, the supervised practice experience should be as similar for all licensure candidates as can be practically achieved. There is unacceptably wide variance in apprenticeships today: One articling student might benefit from a highly positive work environment with mentoring and support, while another might wind up in a barely functional law office, purely through the luck of the draw (or non-relevant hiring factors). This variance is a direct consequence of outsourcing a key element of the regulatory role to the private sector; either much tighter controls and parameters must be placed and enforced on law firm apprenticeships, or the whole process must be centralized under direct regulatory oversight. Which leads to:

Accessible: A supervised practice system that is unavailable to some licensure candidates is unfair; a system in which the inability to obtain a supervised practice opportunity is directly correlated to one’s race, ethnicity, or country of origin is unfit for the profession. There must be systematic assurance that everyone who wishes to become a lawyer can meet the mandated requirement of supervised practice. Moreover, affordability must be considered. Today in Canada, some supervised practice options pay much better than others, while others are unpaid altogether. This wide variance in the financial cost of apprenticeship is another barrier to entry into the profession.

Safe: We can’t continue to send young people into workplaces where they will be subjected to harassment, discrimination, or abuse, and simply accept it as “part of the experience.” It’s especially egregious that we tolerate this treatment of novice lawyers with no power or leverage, unfamiliar with legal culture and dependent upon their supervisors’ approval to complete their training and start their careers. If regulators are going to require vulnerable bar applicants to enter into legal workplaces, they must regulate and closely monitor those workplaces to guarantee they are safe, secure, fair, and free from exploitation. It’s no excuse to say ensuring that kind of system would be “too expensive.” If we can’t afford to provide safe apprenticeships, then the requirement should be abandoned altogether.

Effective: At the end of the day, even if all these other flaws can be addressed, no supervised practice system should be considered valid unless it demonstrably develops in its participants the competencies required for bar admission. It’s not enough to require principals to sign a document attesting that the student has “successfully completed” articles — such assurances have been rote for decades. Most regulators specify the competencies that articling must inculcate, but there is little or no independent assessment or determination of competence outcomes during or after articling. The absence of an evaluation framework converts what ought to be a thoroughly vetted development process into a mere rite of passage.

The problems I’ve listed here are serious; but they are not insoluble. With time, effort, resources, and creativity, not only can we overcome these challenges, we can institute a powerful, effective, and resilient system of professional formation.

  • Consistency and Accessibility can be improved by creating a centralized and closely monitored supervised practice environment — perhaps a “teaching law firm” where licensing applicants can provide legal services to underserved segments of the population while receiving experienced oversight, active feedback, and professional supervision from trained lawyers. Licensure applicants may freely choose to obtain their supervised practice qualification elsewhere, but an entity like this, open to all comers, would guarantee that nobody who wants to become a lawyer is denied the chance to meet this requirement.
  • Safety can be improved by requiring those lawyers who wish to act as the principal supervisors of apprentices to successfully apply for the role. Criteria for successful application could include previous experience in a supervisory or mentoring role, contact information for a former supervisee, and completion of an online training course (I made these recommendations to the Law Society of Alberta in a report last year). An equally valid approach would involve proactive management-based regulation, already in place or in development in several states and provinces.
  • Effectiveness can be improved in several ways, not least by reviewing and adapting the Solicitors Regulation Authority‘s best-in-class Threshold Standard and Qualifying Work Experience Record Template. The template in particular points in the right direction, because it empowers the licensure candidate to record those daily and weekly activities that advance the candidate towards achieving the specified levels of acceptable competence. Make this record accessible in real time to both the candidate’s supervisor and, importantly, the regulator, and you move closer to effectively measuring the candidate’s acquisition of entry-level competence.

Toughest CASE to crack yet.

Reforming a system of supervised practice, or creating a new system from scratch, is obviously a daunting prospect. Opponents of the reform (or creation) of a supervised practice requirement would object to the cost and complexity of the effort.

But in a profession that grants what is effectively a universal and permanent license upon admission — revocable only upon amply demonstrated proof of multiple serious transgressions — lawyer licensure is the single most important moment in the regulatory function. Everything hinges on the standards (if any) that we choose to set and enforce up until, and at, this moment.

I think there’s tremendous value in the proposition that “nobody should be allowed to practise law until they’ve spent a period of time performing supervised lawyer work in a legal services environment.” But if we’re not willing to back up that sentiment with action, then we have no business telling ourselves or others that we have a legitimate lawyer licensing system — and we shouldn’t force every new cohort of lawyers to pay the price of our self-deception.

The legal sandbox tipping point

You’re familiar with regulatory sandboxes in law, right? If so, feel free to skip down a few paragraphs. If not, here’s how I described them in a recent podcast:

A regulatory sandbox is essentially a safe space for innovation. Think of it as a closely monitored laboratory where experiments can be carried out — except these experiments are new types of services that are prohibited by current regulations, but that look like they could be beneficial to the public.

The regulator wants to give these experimental services a try — but it doesn’t want to immediately authorize a service that doesn’t meet the established criteria for authorization, sight unseen. So it creates a “sandbox” where the service can be tried out under close supervision, to see whether the benefits it provides outweigh the risks or harms it creates.

I’ve written about legal regulation sandboxes recently, and I’m far from the only one. Read Margaret Hagan & Jorge Gabriel Jimenez, David Curle, Jayne ReardonMonica Goyal, Yves Faguy, Amy Salyzyn, and the Center on the Legal Profession at Harvard Law School. Regulatory sandboxes are an increasingly talked-about topic in the legal sector, but at the moment, only two North American jurisdictions have actually launched one: Utah, which is off to a flying start, and British Columbia, which has also received significant interest. (In this, as in other areas of legal innovation, England & Wales are already well ahead.)

But that could be about to change. On April 13, the Law Society of Ontario’s Technology Task Force released a report calling for the establishment of a Regulatory Sandbox for Innovative Technological Legal Services (ITLS) for a five-year pilot program. The report includes a motion for approval to be brought before the law society’s governors later this month. British Columbia’s regulatory sandbox deservedly gets the credit for leading the way in Canada; but a sandbox in Ontario — home to more than one-third of this country’s lawyers — would have an even more significant impact.

Image taken from “Earth’s metaverse powered by blockchain technology.” IDK.

Ontario’s sandbox would be open to “any person or entity that is prevented by current regulations from operating an innovative technological legal services tool or program.” In general, the trial period would be about two years (though I’d imagine entities that rapidly deliver clear benefits with little evidence of risk or harm could be approved more quickly). At the end of this trial period, the entity may be approved, with or without conditions, to continue operating freely in the open market, or the law society would amend its by-laws to allow for this exception to the rules, or it would be rejected.

Note that “innovative technology” is a required element — the sandbox is not for, say, a real estate law clerk who wants to provide legal advice over the phone about selling your house. But that’s not the barrier it might appear to be, since Ontario also licenses and regulates independent paralegals, so there’s already a framework in place for “a person, but not a lawyer” legal service options.

And Ontario is an ideal place to host a tech-based innovation sandbox, precisely because Toronto in particular is the headquarters for a large and rapidly accelerating Canadian legal technology industry. Legal tech folks have been saying for years that it’s immensely difficult to attract the kind of investment capital needed to build and scale accessible legal solutions without the confidence that’s created by regulatory authorization. A legal tech sandbox would be the first step towards making that happen in Ontario.

Above all, one key theme consistently surfaces throughout the Task Force’s report: Legal technology is accelerating fast and changing the legal market, and this is the regulator’s best (and maybe only) opportunity to play a role in its regulation.

“As with other sectors and industries, the proliferation of new market entrants and innovative technologies will continue to transform markets and gain users, with or without the regulator’s involvement. Inertia on the law society’s part risks allowing ITLS providers to proliferate in Ontario outside of an effective regulatory scheme. … The technologies will continue to develop, but the law society may lose the opportunity to have an influence if it does not act quickly.”

Now, what’s interesting and coincidental about this development is that, while Canada’s largest jurisdiction considers a legal technology sandbox, the United States’s largest jurisdiction is doing the same. Four days before Ontario released its report, the State Bar of California’s Closing the Justice Gap Working Group held its most recent meeting, with an agenda that considered recommendations on the structure, governance, scope, application process, and criteria for a regulatory sandbox in that state.

The California working group, as you probably know, has been assigned to study innovative ways in which the legal market could be reconfigured to expand access to justice for Californians. Chief among its mandates is to explore whether and how a regulatory sandbox would operate in the state. As I wrote back in the summer of 2018, significant regulatory change to the legal sector in California would be a seismic event, one that would almost certainly trigger rolling changes across the United States for years to come.

I’m not privy to the Task Force’s discussions, of course; but the supporting materials for the April 9 meeting make for interesting reading. The report of the Scope Subcommittee, for instance, reveals that there was some discussion about restricting the sandbox to “firms that offered services to the unserved and underserved,” which the subcommittee defines as including “members of the middle class and small businesses.” This raises more than one red flag for me.

Does California have enough sand?

Set aside for a moment the problem of trying to screen out sandbox applicants according to who will buy their products and services (which strikes me as highly impractical in a free market), as well as the flagrance of the effort to restrict scope so as not to threaten the interests of lawyers and to put up roadblocks against the Big 4. The real problem here is singling out only “the middle class and small businesses” as unserved and underserved, which hides from the reality that everyone is unserved or underserved by the current legal system, and everyone deserves a better choice of remedies than what’s now on offer.

Nevertheless, the inarguably good news is that the Closing the Justice Gap Working Group is making real progress. Observers of the process with whom I’ve spoken appear optimistic that although the wheels of this process are grinding slow, they are grinding in a good direction. I don’t pretend that decision-makers in California are remotely swayed by what happens in Canada, but the fact that their northern neighbours in BC have approved a sandbox, and that Ontario might follow suit, could have at least some normalizing impact.

But in addition to Utah’s trailblazing effort, California and Ontario should also seriously reflect on the fact that Arizona blew right past the “sandbox” concept and opened its legal sector to all types of providers. Arizona eliminated its ethics rules barring “non-lawyers” from having an economic interest in law firms or participating in fee-sharing, thereby demonstrating what real reform of legal services regulation looks like (again, following the lead of England & Wales). Thanks to Arizona, sandboxes can no longer be viewed as radical departures from the norm — they’re now the safe, slow, middle way, the unobjectionable road to reform.

And that brings me to my final point: a friendly warning to any lawyers in legal governance in Ontario and California who might be tempted to derail this process for their own purposes. Not only would that derailment remove from the regulator any practical means of influencing new legal services providers, it would also render obvious to everyone the starkly protectionist agenda of the profession’s lawyer governors. And that, inevitably, would accelerate calls for fundamental changes to lawyer self-regulation.

The tipping point of regulatory reform in the law is drawing near. The legal profession should be throwing its considerable weight behind reaching this point sooner, in order to truly and fully advance the public interest — and thereby prove itself worthy to continue governing not only the legal market, but also its own affairs.

Radical roads to reform lawyer formation

On April 27, I’ll be delivering the morning keynote address to The Future is Now: Legal Services, the annual conference of the Illinois Supreme Court Commission on Professionalism. The topic of my presentation will be “Reinventing Professional Development for Lawyers of the Future,” and if that’s of interest to you, I’d encourage you to check out the full conference agenda (featuring superstar presenters like Kim Bennett and Brian Cuban) and register for the event today.

For my contribution to the conference materials, I prepared a paper titled “Towards A New and Better Model For Lawyer Formation and Ongoing Competence.” In case you’re interested, I’ve reproduced a modified excerpt below.

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What do I mean when I talk about “lawyer formation?” I think that term can best be understood as the process by which a person becomes a competent, confident, and independent lawyer:

  • Competent: The lawyer has established to the satisfaction of the relevant licensing authority that they possess the minimum capacities and characteristics necessary for licensure.
  • Confident: The lawyer has acquired enough professional experience and received sufficient guidance and validation to attain emotional self-assurance and trust in their own abilities.
  • Independent: The lawyer can serve clients, manage tasks, fulfil professional duties, and regulate themselves without requiring supervision or oversight by more experienced practitioners.

This formation process begins no later than the first day of formal legal education (although it can start much earlier, even before a person applies to take the LSAT), and it ends when a licensed lawyer meets all three of the foregoing conditions (an occasion that will arrive at different times for different people).

At a minimum, lawyer formation takes three to four years — but for most of us, the process lasts significantly longer, sometimes a decade or more. That obviously means our achievement of “competent lawyer” status won’t occur until years after we first obtained our license to practice — long after a regulatory authority informed us and the world that we were fully licensed to deliver every type of legal service to anyone who cared to hire us.

Lawyer licensing is out of step with lawyer competence, and the lawyer formation process is the reason why. In most jurisdictions today, that process fails to properly and efficiently ensure competence, confidence, and independence among the lawyers it certifies. It is fragmented, repetitive, and focused primarily on the interests of the entities (law schools, bar examiners, regulators) that administer each step, rather than on the lawyer it is forming and the clients that lawyer will someday serve.

What we need is a new lawyer development model that is unified, strategically designed, and focused on the needs and interests of lawyers and clients. But we can’t achieve this goal by incremental steps, not when so many longstanding and powerful institutions benefit from the status quo, and especially not in the Pandemic Era, when half-measures accomplish very little. We need to think bigger, challenge more fundamentally, and be ready to embrace entirely new approaches to this issue.

I’d like to recommend three actions that would begin to truly overhaul the lawyer licensing and development process. They would be disruptive. They would cost a lot of money and require a lot of effort. But I believe they’re the kind of measures we’ll need if we want to make real progress towards a healthier, more capable, and more effective legal profession.

1. Design a licensing assessment system that makes a law degree optional. Create a robust competence framework for new lawyer licensing, and assess applicants’ ability to satisfy its requirements regardless of whether the applicant has completed a law degree. Follow the lead of the Solicitors Regulation Authority (SRA) in England & Wales, which in September 2021 will make the Solicitors Qualification Examination the sole “legal knowledge” criterion for bar admission — a law degree will not be necessary. The SRA is concerned only with whether an applicant has acquired the skills and knowledge to pass the exam; it is not especially concerned with where or how the applicant acquired those attributes.

Future Road to Lawyering

North American regulators should develop a multi-dimensional competence framework for law licensure that encompasses:

  • legal reasoning and knowledge,
  • legal ethics and professional identity,
  • legal business skills and client service, and
  • empathy and emotional resilience.

Regulators should then assess aspiring lawyers against this framework, regardless of whether or to what extent applicants have completed law school. Regulators should also encourage the growth of non-school entities that can emerge to give aspiring lawyers the knowledge, skills, and training they need to satisfy the competence framework and assessment system.

Under our current licensing system, the law degree acts as a proxy for a set of learning experiences that are presumed to advance the student towards competence. Rather than forcing would-be lawyers to invest three years and hundreds of thousands of dollars to acquire this proxy certification, regulators should decide what a new lawyer should actually know and know how to do, and design an assessment process that allows bar applicants to prepare themselves to pass it however they wish.

2. Require supervised practice experience for licensing. No jurisdiction in the United States requires aspiring lawyers to gain supervised practice experience before they receive their law license. In this regard, the US stands almost entirely alone in the world. Articling students in Canada, trainee solicitors in England, and rechtsreferendare in Germany are examples of apprenticed lawyers-in-training who spend one to two years in a legal work environment applying the knowledge and principles they learned in law school, under the supervision of experienced practitioners. American legal regulators should follow suit.

Even if a mandatory period of supervised post-graduate training in a legal workplace is not adopted by American regulators, there are other ways to ensure a significant degree of exposure to practice realities. States could require that a law student complete a specified amount of supervised clinical education in law school, as was recently recommended by the Institute for the Advancement of the American Legal System (IAALS)’s “Building a Better Bar” report.

Simulated Future Firm™

Alternatively, regulators could require that licensing applicants successfully complete a virtual “simulated law firm” program, where would-be lawyers handle fictitious files, connect with clients and witnesses portrayed by actors, and learn the ropes of law practice in a training environment with oversight and mentoring from practice advisors. Simulated law firms are currently part of the bar admission program in five Canadian provinces. They do not substitute for the actual experience of working in a legal services environment, but they are preferable to the absence of any kind of experience at all.

3. Mandate comprehensive CPD for lawyers in their first five years. One consistent shortfall in lawyer development across all jurisdictions is that new lawyers are credentialed and licensed too early. Most first-year lawyers are unprepared to carry out the tasks that clients and employers require of them, poorly trained to handle the basics of business management and client relations, and unready to handle the intense emotional disruption of the shift from academic to working life on their own.

Regulators therefore should continue the training and education of lawyers following their call to the Bar. They should create a comprehensive professional development program designed to guide the growth of the novice lawyer throughout their first five years in the law. This program could provide:

  • asynchronous learning through online videos and interactive materials,
  • mandatory in-person workshops and conferences for junior practitioners,
  • access to toolkits filled with resources for running a legal business,
  • mentoring opportunities with multiple senior lawyers in their jurisdiction, and
  • an anonymous Help Line that can be called any time day or night for assistance, support, or counselling.

Essential Support for the Future

A program like this would not be cheap to develop and deploy; but it would be much less costly than losing thousands of lawyers to discouragement and depression every year, not to mention reducing the professional insurance costs of under-developed lawyers mishandling their own affairs and those of their clients. And, along with the other two actions described above, it would mark a new beginning in how the legal profession regards lawyer formation and would accelerate the development of annual new cohorts of strong, proficient, and confident lawyers.

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The first step towards solving a problem is confronting head-on that it’s real and it’s serious. I don’t think we’ve arrived at that point yet when it comes to our lawyer formation process — there’s still too much poking around the edges or pinning all the blame on individual stakeholders (law schools, bar examiners, etc). But every day we postpone true recognition of our troubles, the longer it will take us to come up with solutions equal to the challenge.

The real issue is not that these three foregoing suggestions are too radical, but that they might not be radical enough. Only when we come to accept the need to fundamentally change how we approach the critical first decade of a lawyer’s career will these solutions seem equal to the monumental task at hand.

Frugal innovation in lawyer formation

More than a decade ago, in a post that captured the imagination of hardly anyone, I wrote about the need for “frugal innovation” in the legal services sector. Chief among the problems with the legal market, I said, is lawyers’ insistence on offering ever-more-elaborate services to ever-fewer people at ever-higher prices, ignoring the growing population with straightforward legal needs but little time or money to address them. Frugal legal innovators, I wrote,

will figure out the resource restrictions under which most people labour and will modify their products, services and delivery systems accordingly. They will relentlessly simplify and de-accessorize legal offerings, constantly asking themselves: Can we make this easier? Are there steps we could remove, features we could do without, elements that add cost without adding equivalent value? 

I trust this book is no longer than it needs to be.

Ten years on, I’m still waiting for the legal profession to recognize and meet this opportunity, although I’m encouraged by the success of consumer innovations like UpSolve and Hello Divorce.

But what I want to do in this post is apply the same reasoning to the lawyer formation process. What would frugal legal education and bar admission look like? What if we had only a very limited amount of time and money with which to train and licence new lawyers — how would we do it?

Let’s start by identifying the problem to be solved. Whatever its other merits and demerits, there are two things we can confidently say about lawyer formation in North America, in its current form:

1. It is too long. Hardly anyone believes that three full years of law school are necessary to provide foundational knowledge for the lawyer licensing journey. Most Canadian jurisdictions require an additional one-year articling term before admission, but that period of time is arbitrary: pandemic-shortened articling terms were deemed acceptable last year, and an alternative pathway in one province lasts just eight months.

To be clear, I believe new lawyers need much better and more detailed preparation for their careers than we’re giving them; but we’re using the current allotted amount of time poorly. We don’t know how long it really takes to fully develop a lawyer, because we’ve never purposefully designed a unified, end-to-end lawyer formation system.

2. It is too expensive. The average US lawyer starts their career $145,000 in debt. For the average Canadian lawyer, the figure is at least $71,000. Licensing fees add to this burden. But the cost of lawyer formation is driven less by features intrinsic to professional development, and more by the business models of the institutions that oversee and administer education and licensure. Lawyer formation doesn’t require labs and chemicals and machine shops; but you wouldn’t know that from its price tag.

Most people need significant socio-economic advantages even to contemplate the possibility of a legal career and devote several years to its pursuit. If you are not independently wealthy, heavy debt will drive you into higher-paying jobs with intense billing pressures or force you to take on work outside your expertise, ultimately to your and your clients’ detriment. The barriers scattered throughout lawyer licensure have produced a legal profession that is disproportionately white. And I need hardly add that the foregoing system will not produce affordable legal services.

How can we fix this? One way forward would be to “frugalize” the lawyer development system. What if we placed strict time and budget limits on the process of developing lawyers? What if we maintained (or ideally, raised) our thresholds for qualification as a lawyer, but radically downsized the time and cost required?

Assume that someone wishes to become a lawyer, but has, say, only 18 months and $18,000 to do it. Under our current system, that’s simply not possible. So let’s come up with a system in which it might be. Here are a few ideas to get us started.

● Move law school online, period. Subtract from a legal education the institutional overhead, room, board, and travel costs of attending a university in person. Subtract the time inflation caused by adherence to the law school’s semestered teaching timetable and its insistence on one-to-many, physically proximate knowledge transfer. The result would be an at-your-own-pace online law degree (of which, thanks to the pandemic, we’ve already seen proof of concept), faster and radically less expensive than the current version.

● In the alternative, individual legal academics and practicing lawyers could sell standalone courses approved by regulatory authorities, accessible online 24/7 with built-in knowledge assessments, on a core of mandatory subjects plus many others. Students could assemble their own qualifying law degree from multiple providers, learning as their schedule allows from their chosen experts in their preferred areas. Let’s stop thinking of law school as “a place you go to” and start thinking of it as “a developmental experience.”

Why can’t law school look like this?

● Our current system makes students spend three years in a classroom before even glimpsing the life of a lawyer. Lawyer education and experience could instead be administered concurrently, not consecutively, saving time while enhancing learning. The online courses described above could be interspersed with asynchronous skills and training modules and simulated virtual practices relevant to each course subject — here is an outstanding example. Or combine this idea with the next one:

● During or after completion of this online trifecta, we would find ways for aspiring lawyers to swiftly and affordably gain in-person lawyer experience. Regulators could require practicing lawyers to offer unpaid four-month internships to duly-registered law students as a requirement of continued licensure. Or they could coordinate similar opportunities with legal aid or public interest organizations in the student’s home town or nearest city. The goal is to help students learn the law and experience the law simultaneously.

● A purely online experience would, however, fail to provide the socialization element of lawyer development, whereby aspiring practitioners build friendships and networks by learning and working together. These elements have real value, so the frugal lawyer development process would require and help enable regular in-person (once the pandemic allows) meet-ups in larger communities, or Zoom sessions among more geographically dispersed students, or better solutions waiting to be invented. Distance legal education has a long history.

This is just the barest outline of what a frugal lawyer development system might look like — obviously it has gaps and flaws. But while some of them can be filled and fixed, others don’t need to be. Frugality, as I argued back in 2010, is not about doing the same things you did before, only more cheaply. It’s about re-envisioning what you’re trying to achieve and and re-engineering how you’re going to achieve it.

There’s a growing consensus that lawyer licensing requires radical reconsideration. So which elements of lawyer licensure add cost without adding equivalent value? Cavernous lecture halls in limestone buildings? Qualifying credentials burnished by a coat of arms and a football team? Hazing rituals disguised as entry examinations? You could probably assemble a pretty lengthy list just based on your own certification experience. Undertaking this effort collectively, as a profession, could lead to extraordinary advances in our theory and practice of bar admission.

The pandemic has already demonstrated that we can educate, train, and license lawyers differently than we did before. This is a golden opportunity to convert that temporary experience into a permanently better one.

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.

Heading in a new direction

It was February, and I was in Chicago. I was there to attend ABA TECHSHOW, for the first time in what felt like ages. And I was mostly hanging out in the trade show between sessions, meeting some Twitter friends in person for the first time and running into old friends who I’d first met here back in the ’90s. The conversations, as they tend to do, would inevitably turn to what we were up to these days. And in my responses, I found myself coming back to a recurring theme.

Work was fine, I said. I had several speaking gigs lined up for the spring and summer. But I was also feeling a little worn down and, if I was being honest, kind of burned out. There are only so many times you can stand in line to board an airplane, only so many times you can roll your luggage down a hotel hallway, and only so many times you can climb onto a stage and tell a group of lawyers things they didn’t really want to hear. I’ve always maintained, half-jokingly at most, that I only ever became a paid speaker so that I could afford to keep blogging — yet here I was, writing at Law21 less than ever before.

There were also the big-picture aspects. Were my presentations about innovation and the future of law firms really making any difference? Even if they were, did I want my epitaph to read, “He helped lawyers make more money?” I was becoming more concerned with access to justice, regulatory reform, and lawyer formation, blogging about these subjects more than about the practice of law, about which I felt I’d said all I could say. My kids were accelerating into adolescence. I’d passed the half-century mark myself. It really feels, I’d sum up, like I need to make a change. It feels like time to do something different — I’m just not sure what.

Four weeks later, we were all in lockdown, all my speaking engagements had been cancelled (except for one that was converted to online), and it was clear that all of us were going to get something different, with a vengeance. We were all going to take a different path now.

For my part, as the pandemic struck, I felt like everything I’d been writing and speaking about for the last decade had reached its culmination. There wasn’t much point in talking about how to prepare for the future of law anymore — the future was here, and either you were ready for it or you weren’t. Most of us weren’t. I was deeply discouraged by that — but I was also energized by the system-wide change that was about to get underway.

I began writing a series of posts about what the pandemic would do to the justice system and the legal market, and how we needed to start building the foundations of a new system and a new market now to replace the ones that the pandemic and its consequences would dismantle and sweep away. Only by the end of the series did I start to recognize that I’d been writing kind of an elegy for my own work in this area. If I ever get around to it, I’ll adapt that ten-part series into a short e-book and offer it free to anyone who’s interested.

All well and good. But there remained the minor issue of what I was going to do with myself for what looked to be 12 to 18 months of very few earning opportunities. Luckily for me, however, I did at least one smart thing during those first few weeks.

One of the engagements that had been cancelled was to help organize, speak at, and facilitate a meeting of the “Benchers” (elected lawyer directors) of the Law Society of Alberta, the regulator of lawyers and legal services in that province. This meeting was going to be devoted to a deep reconsideration of Alberta’s lawyer licensing and competence systems. I had already done a fair amount of research and laid some groundwork when the pandemic hit and the event was cancelled — but it was enough to confirm my early impression that these were enormously important subjects, critical to the future of the profession and its ability to serve clients and uphold the rule of law.

So I contacted the law society and said, essentially: I’m genuinely interested in this topic, and — given that I now seem to have a lot of time on my hands — I’d be happy to continue working on this until the meeting can be rescheduled, or to write a white paper for you, or something along those lines. That call led to further conversations, which led to a proposal, which led to an 80-page report and recommendations for lawyer licensing and competence in Alberta, which was accepted by the law society earlier this month and officially published earlier this week. You can read all about that report in this companion post.

I’m pleased with the report, and I’m immensely grateful to the law society for giving me the opportunity to write it. I’m especially grateful because writing the report, interviewing all the experts, and reading all the excellent research in this area, made me confident that I’d found my “next thing.”

The legal profession’s approach to how lawyers are educated, trained, mentored, licensed, and continuously monitored for ethical proficiency is slapdash, archaic, and grossly inadequate. With rare exceptions, we educate lawyers in isolation from how law is practised, we lazily and amateurishly assess their fitness to practise, we credential them and send them into the market much too early, and we fail to give them the ongoing support, tools, and professional infrastructure they need to lead a healthy and fulfilling legal career. The results of this massive failure are obvious everywhere you look in the legal sector — if you’re willing to see them.

  • It’s the infuriating #barpocalypse tragedy in the US, the worst thing ever done to any incoming class of lawyers in the profession’s history.
  • It’s the refusal or incapacity of law schools to adapt their missions to the piercingly clear needs of the legal profession and its clients — and the corresponding refusal or incapacity of regulators to demand better from their major supplier of legal talent.
  • It’s the abandonment of new lawyers to the cruel vagaries of the market, the terrible doubts of imposter syndrome, and the frequent consequent self-destruction of addictions and mental crises.
  • It’s lawyers’ lackadaisical approach to their continuing competence, so deeply ingrained that the cynical and useless “minimum CLE hours” system is not just the default standard, but is virtually sacrosanct.

We take ourselves so seriously as a profession. But we treat our professional formation and continuing proficiency with a degree of negligence that borders on contempt. This cannot continue.

This is where I’d now like to principally devote whatever talent and energy I can bring. I’d like to work with law schools, law professors, bar examiners, bar admission entities, regulators, professional development architects, law firms, and innovators of all kinds to help rethink, re-engineer, and reconstruct the lawyer formation process. My report to the Law Society of Alberta encapsulates my views in this area and serves as an example of the projects I can work on and the outcomes I can help deliver.

Coming in a close second on the list of “what I’d like to do now” is to work with regulators, governments, foundations, and community groups on the reconceptualization and reform of legal services regulation. I’ve been fortunate to provide some advisory services to other regulators over the course of this past year, and in fact, I’m strongly considering the development of a new strategic intelligence service for a limited number of institutional subscribers in 2021. If this sounds like something your organization might be interested in participating in, please let me know.

None of this is to say that I won’t also advise or write about law firms from time to time, or about other aspects of the legal sector. It’s a very big, complex legal world out there, and my interest in that world  is, like me, very catholic. I’ll happily hop onto an occasional Zoom webinar (or, less happily but inevitably, an airplane) to give a presentation about the present (not the future) of law.

But to any law firm that might have some interest along these lines, let me say: First go read this post, from my pandemic series. It contains a link to download my book about law firms (for free), links to more than two dozen posts about law firms that I’ve written since the book was published (also free), and as much wisdom as I can provide about law firms in 2020.

Send that post to your lawyers and professional staff — it’s the next best thing to having me in person, and a whole lot less expensive. If you’d still like to engage me to speak or to advise your leadership about future strategy, that’s awesome — please drop me a line. (And if you’re looking for other speakers in this area, well, I’m cooking up something for next year in that regard too).

None of this will happen overnight — this website, for one thing, now needs a complete overhaul, which I’ll be starting on in the new year. (While I’m at it, I should probably replace a photo that was taken during the Obama administration).

This change in direction isn’t something I’m undertaking lightly or without lengthy consideration — I’m moving away from an area in which I have a pretty decent track record and into an area in which I don’t. But I’m also feeling very good about this decision, that it’s the right thing for me to do and the right direction for me to go. So many opportunities are opening up now, for all of us, to re-examine “what we’ve always done” — and what we might now do instead that’s better, more meaningful, and more attuned to people whose needs are greater than our own.

Thank you for reading this far, and for indulging this update on what I’m up to. I sincerely wish you a safe, satisfying, and recuperative holiday season, and a better year ahead for all of us. May your own roads and horizons brighten with every step forward.

Lawyer licensing and competence in Alberta

I’m very pleased to let you know about Lawyer Licensing and Competence in Alberta: Analysis and Recommendations, a report written by me for the Law Society of Alberta. The law society’s Benchers (the elected lawyer directors of the province’s legal services regulator) accepted the report and all of its recommendations earlier this month. Preparations are now underway to implement the recommendations over the coming months and years.

For the inside story of how I came to write this report, and why it signals a new direction for my own writing and consulting career, please see this companion post. Here, however, I’d like to explain how the report itself came about, what its primary recommendations are, and why I believe it signals an opportunity for other jurisdictions to re-examine their own licensing and competence systems and bring them into the 21st century.

First, some background. Here are the essentials of how you become and remain a lawyer in Alberta:

  • Earn a degree from a Canadian law school or a certification from the National Accreditation Committee of the Federation of Law Societies of Canada.
  • Complete the bar admission program administered by the Canadian Center for Professional Legal Education (CPLED).
  • Complete a term of articling (one year of supervised practice apprenticeship with an Alberta lawyer in good standing).
  • Once called to the bar, annually assess your learning needs, choose a series of learning activities that will advance your proficiency in these areas, and report those activities to the law society.

This combination is unique in Canada: although three other provinces (Manitoba, Nova Scotia, and Saskatchewan) also engage CPLED to conduct their bar admission program, only Alberta does not use a “minimum number of CLE hours” system to ensure ongoing competence. (Indeed, Alberta stands alone in Canada and the US on that score.)

But back in February (which seems like a very long time ago), the law society decided to suspend lawyers’ CPD filing requirement while the system itself was reviewed and overhauled. That decision was triggered by uncertainty about whether the “self-assessment and learning activities” system was generating actual learning activity and whether the system had sufficient accountability to achieve that result.

But there were other issues at play. In 2019, the law societies of Alberta, Manitoba and Saskatchewan received the results from a survey of current and former articling students in those provinces. The news was bad: About one-third of all respondents reported discrimination, harassment, or ineffective learning environments or experiences during their articling term.

The law society had other concerns, too. It was worried about the degree of competence possessed by lawyers in their first few years of practice. It noted (as have other jurisdictions) dwindling levels of engagement in continuous learning by more senior lawyers. It recognized the dangers of an aging profession with insufficient retirement and transition plans. And it saw that BIPOC and internationally trained lawyers carried heavier burdens in all these areas.

I was engaged in April to write a report analyzing these issues and making recommendations to improve lawyer licensing and competence in Alberta. Although law school and legal education were outside my commissioning scope, I was otherwise encouraged to draw whatever conclusions seemed to me fit and justifiable. Five months, 25 interviews, 80 pages, and 30,000 words later — and with the absolutely irreplaceable support and assistance of law society staff — I handed in my draft report. Three months later (last week, to be precise), the law society accepted the final report and all of its recommendations.

To find out every last detail of this document, I’d obviously suggest you read the full report (or at least the executive summary at the start). But for present purposes, and in necessarily broad strokes, I’ll summarize my major recommendations and observations below.

1. Nobody has a greater impact on a new lawyer’s early career than the lawyer with principal supervising authority during their articling term. Supervising an aspiring lawyer is accordingly a privilege to be earned, not a right to be asserted. Any lawyer who wishes to act as an articling student’s principal should successfully complete an application process and training program to qualify for the role.

2. Articling suffers from several defects and inadequacies, but its biggest fault is that it is the sole method by which Alberta lawyers can gain their required supervised practice experience. The law society should develop new “pathways to practice” that provide consistency, defensibility, and accessibility, to supplement (and conceivably to soon replace) articling, such as a Law Practice Program, an integrated practice curriculum in law school, or a law society-sponsored “teaching law firm.”

3. There is no evidence that Alberta lawyers in their first three years of practice pose an outsized competence risk. But these lawyers, like early-stage lawyers everywhere, are credentialed and sent into the market before they are ready. The law society should provide a mandatory annual fleet of training, knowledge, and support programs in law practice management, business operations, client relationships, and other practical areas of critical importance for new practitioners in their first three years.

4. Articling students and new lawyers receive inadequate levels and types of supervision, particularly when it comes to their formative and restorative development (transitioning to practice, receiving mentorship, maintaining mental and emotional health). Every new lawyer should be automatically “opted in” to one of Alberta’s two outstanding lawyer mentoring programs (with the option to opt out for any reason).

5. Alberta’s self-assessment and learning outcomes CPD system is fundamentally sound and represents best practices in professional adult education worldwide; the province should not switch to an hours-based system. But the current system should be improved, by training lawyers in the art of skill self-assessment, focusing more on learning outcomes than activities, instituting random audit checkups to ensure lawyers’ compliance with their learning activity commitments, and periodically providing mandatory activities for all lawyers in areas of core competence less likely to be addressed individually.

6. Lawyers with more than 20 years at the bar present demonstrably lower levels of competence risk, and senior lawyers generally find most CPD activities lacking in relevance or utility. The law society should provide these lawyers with an optional CPD system that allows them to fulfill their learning requirements by engaging in a program of mentoring, new lawyer education and training, and public legal education and service.

7. Sole practitioners are the backbone of access to justice for individuals and families, especially in smaller communities; but they are unfairly under-resourced and overburdened with management duties compared to their colleagues in larger law firms. Lawyers who wish to start sole practice should be required to complete a training program to provide them with the knowledge, support, and resources to help them practise effectively and competitively. Given the risks to their clients of a sole practitioner’s incapacitation, these lawyers should also be required to create and file with the law society a business continuity plan.

I also made several observations throughout the report (or during my preparation of it) that were not submitted as actual recommendations, but that I felt warranted attention:

  • The airtight separation of legal knowledge and legal practice in law school is fundamentally wrong and needs to be addressed at the earliest feasible opportunity, through a collaborative process involving multiple justice system stakeholders.
  • Lawyers who are Black, Indigenous, persons of colour, or internationally trained suffer systemic discrimination and unfair treatment throughout their careers but especially at the outset. This needs to be addressed and corrected.
  • CPLED’s bar admission program, which focuses on lawyer skills and experience and does not include anything like a “bar exam,” is a best practices model for lawyer licensing that every other jurisdiction should study and emulate.
  • “Graduated licensing” is an impractical solution to a different and fundamental problem: Lawyers enter practice three to five years before they are truly ready to serve clients effectively. We must reform lawyer formation altogether.
  • “Minimum hours of CLE” is an antiquated input-based learning measure that provides no assurance lawyers have learned anything that will help them serve clients or practise law more effectively. CPD programs should abandon it.

There are several other aspects of lawyer licensing and competence assurance that are worth further exploration, but the law society did not engage me to write a scholarly treatise on the subject. My report aimed to be as practical and implementable as could be managed, given the realities of limited budgets, lawyers’ deep aversion to change, and the small matter of the pandemic. Most of all, I wanted to give the people at the law society a realistic blueprint for making incremental but important improvements to the province’s lawyer licensing and competence systems.

That last point gives me an opportunity to acknowledge with gratitude everyone at the Law Society of Alberta who was instrumental in bringing this report to fruition. Among the lawyers, I want to single out Ken Warren Q.C.  and Stacy Petriuk Q.C., Chair and Vice-Chair of the Lawyer Competence Committee, as well as all their colleagues on that committee; among staff, there are too many people to thank individually, but I want to highlight CEO and Executive Director Elizabeth Osler Q.C. and, in particular, Deputy Executive Director Cori Ghitter, without whom (as I said in the report’s closing lines) the report could not have been written.

I’d welcome any feedback that you might have about this report or the points raised in this post. And if you’d like to read my less diplomatically phrased observations about the state of lawyer development, licensing, and ongoing competence today, I invite you to read about my new career focus and the back story to this report, right here.