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 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.

– – – – – – – –

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.

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.

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.