Why competence-based licensure would make the law degree unnecessary

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Posted in: Competence, Law School, Licensing, Regulation

Requiring an aspiring lawyer to earn a law degree before they can begin the lawyer licensing process is an unnecessary and unfair barrier to entering the legal profession. The requirement should be dropped.

That’s (probably) the most controversial proposal in the report I submitted to the Law Society of British Columbia, which recommended the adoption of a competence-based lawyer licensing system. To be clear: The LSBC accepted the competence-based licensing recommendation itself last month, but made no other determination about anything else in the report, including my suggestion to drop the law degree requirement. Nothing is changing in BC in this regard. Law schools, you can exhale now.

In this post, I want to explain the reasoning behind my proposal, which is fleshed out in further detail in pages 9-13 and 34-39 of my report. A few preliminary points.

  • I’ll be using the Canadian law school and licensing system as examples, but everything here applies equally (if not more so) to the American context, where the law degree requirement is an even more arbitrary and exclusionary requirement for licensure.
  • I’ll be focusing on domestically trained candidates for law licensure — Canada has a separate (though also troubled) regime for internationally trained candidates, those who’ve worked as a lawyer or gained their law degree in another country. That’s a future post.
  • I’m emphatically not saying that law school has no value. A good law school experience can deliver extraordinary benefits to aspiring lawyers. I’m talking about the licensing requirement to complete a full, three-year law degree. These aren’t the same things.

With that out of the way, here we go.

Let’s start by recognizing some of the core elements of a competence-based licensing system: transparency, defensibility, and accessibility. Unlike a credentials-based system, in which the admissions authority accepts various third-party certifications as a proxy for entry-level competence, a competence-based system explicitly identifies the competencies for Day One practice and directly assesses candidates to determine whether they possess those competencies to the required degree.

In practical terms, that means an aspiring lawyer must have a fair opportunity to:

  1. find out what the required competencies for law licensure are;
  2. acquire those competencies; and
  3. demonstrate their possession of those competencies to the regulator.

The first of these conditions is relatively easy to meet; the regulator need only decide on and publish a competence framework that identifies the knowledge, skills and attributes (and the measure of each) that it demands of a newly licensed lawyer. Once those competencies are publicly announced, posted to a website, and otherwise distributed widely, the regulator has satisfied its duty here.

It’s in the second and third conditions that the law degree requirement becomes a much greater problem.

A comprehensive framework of legal knowledge competence for licensure would demand significantly more than what is currently required of a law degree. For example, the Competence Profile developed for New Brunswick’s new bar admission program (at p. 16) identifies 29 separate knowledge competencies in four categories: the legal system, substantive law, legal procedure, and legal practice. The Solicitors Regulation Authority of England & Wales goes further: The SRA’s Statement of Legal Knowledge, which sets out the knowledge solicitors must demonstrate at the point of qualification, lists 60 items of knowledge competence across 11 categories, plus a host of other legal knowledge requirements.

No Canadian or American law school is required to ensure its graduates are instructed in anything close to all these areas. The Federation of Law Societies of Canada’s National Requirement, which mandates the elements of a common-law degree necessary to make its graduates eligible to enter bar admission programs, states that “Substantive Legal Knowledge” encompasses only a general understanding of the core legal concepts of:

  • Foundations of law, including principles of common law and equity, the process of statutory construction and analysis, and the administration of the law;
  • Public law, including constitutional law, criminal law, and the principles of administrative law; and
  • Private law principles, including contracts, torts, and property law.

Now, my understanding is that the Federation is currently working on a comprehensive update to the National Requirement, which is excellent news. But with or without this update, the point remains that the gap between what law schools are currently required to ensure their students learn, and what the future wave of knowledge competence frameworks will require licensure candidates to possess, will be significant. (See also similar processes underway with the ABA’s Standards and Rules of Procedure for Approval of Law Schools.)

This is going to create a very difficult situation for law schools. If they maintain their old curricula regardless of more detailed knowledge competence standards demanded by licensing authorities, they risk losing their accreditation, with disastrous consequences. But if they adopt their degree programs to reflect regulators’ knowledge competence demands, they will massively disrupt their programs, cause havoc within their faculties, significantly reduce student choice in courses, and — maybe worst of all — effectively admit that they really are trade schools after all, surrendering control of their curriculum decisions to professional regulators and fatally compromising their academic independence.

I don’t like either of these outcomes. I don’t want to see a mass de-accreditation of law schools across North America, which will not serve anyone’s interests. But I also don’t want to bring about existential convulsions within law faculties that could destroy these institutions from the inside. And in any event, I don’t think regulators have the right to restrict the academic independence of universities.

How do we resolve this dilemma? We do it by going back to the three conditions of a competence-based licensing system and looking again at the third: that the candidate must “demonstrate their possession of those competencies to the regulator.” (Emphasis added.)

The point of competence-based licensing is that the admissions authority must be able to declare itself satisfied as to the competence of each applicant. But it can’t do that if the candidate is demonstrating competence to someone else. When you accept someone else’s testimony as to a candidate’s competence, you’re back to a credentials-based system.

The regulator bears the ultimate responsibility for the competence of every lawyer it licenses. This is even more important because in practical terms, a law license is permanent: Barring gross misconduct, a lawyer need never surrender their license once they obtain it. So a regulator must be able to defend every decision it makes to license a lawyer, and it can’t do that by saying, “Well, they had a law degree, and they passed a bar exam, and they apprenticed at a law firm without setting the place on fire, so we assumed they were fine.” That’s not a fulfillment of regulatory duty, that’s an abdication of it. The public expects and deserves more.

If we accept that the regulator’s job is to directly satisfy itself of a candidate’s knowledge competence, then a pathway to a solution opens up. Let law schools retain complete control over what they teach — they can ignore the Competence Framework if they like, they can change their entire program to replicate it, or they can do something in between. Let them decide if they’re pure academic research institutions or lawyer training grounds or something in between.

Law schools can do this if we drop the law degree requirement for bar admission — if we decouple legal education from lawyer licensing. Let law schools teach whatever legal knowledge they like. Let regulators require whatever legal knowledge they consider essential for bar admission. Stop trying to make these two unrelated entities walk in lockstep, like prisoners shackled at the ankles.

Instead, regulators should conduct their own assessment of licensure candidates’ legal knowledge competence (and other types of competence too, but that’s a separate topic). That assessment will probably take the form of a written examination — certainly, that’s what the SRA in England & Wales has done with the comprehensive and demanding Solicitors Qualification Examination, and what every US state now requires with the (very poorly designed and executed) bar exam.

To be sure, that approach has real drawbacks as well — including the pernicious and unacceptable problem of race-based differences in licensing exam results. But our system already suffers from this problem now, and we will have to cure this defect even if we make no changes to the lawyer licensing process. (More about this issue in my report at pp. 43-44.)

Whichever assessment method regulators choose, however, a candidate should be required to demonstrate their legal knowledge competence directly to the regulator — not to an independent third party with a different mission and purpose. This is the regulator’s job.

There would be so much to be gained by this reform. Law schools would benefit by being released from their obligation to teach what a professional regulator tells them to teach. Regulators would benefit by re-focusing on their duty to the public to ensure new lawyers are competent to practice, and from being able to assure skeptics in government that they are performing self-regulation responsibility.

But nobody would benefit from this change more than aspiring lawyers themselves. Because let’s not forget the biggest problem with law degrees: Even though they’re necessary for licensing, they’re still not sufficient.

Most Canadian law societies require candidates who have already earned a law degree to then complete a bar admission program that teaches and tests additional areas of substantive and procedural law. Every US state requires candidates who have already earned a law degree to then complete a bar exam that retests law school knowledge but is much harder to pass than any law school course. We require candidates to complete a lengthy and expensive law degree that doesn’t give them all the knowledge they need to become lawyers.

How expensive? As of 2018, the average Canadian law student graduated with $71,000 in debt. In 2022, the average American law student graduated with $165,000 in debt. And that’s not counting the even more valuable three years of the candidate’s life devoted to gaining this credential. Sure, law is a powerful and high-status profession, and someone who wishes to be a lawyer should be prepared to make real sacrifices to access it. But to sacrifice this much money and time for a credential that doesn’t even provide all the legal knowledge required to become a lawyer?

We talk about the brutalizing impact of law school debt on new lawyers, on their career choices, and on their mental and physical health, as well we should. What we don’t talk about enough is the absolute chilling impact of the law degree requirement on professional aspiration. Tens of thousands of people apply to North American law schools every year; hundreds of thousands don’t, not only because the cost is too high for them to risk, but also because their socio-economic circumstances cut them off from even considering a legal career.

And as I remind regulators, the law degree requirement has one other negative effect: It makes law schools the first and most exclusionary gatekeepers of the legal profession. When each year’s cohort of bar applicants shows up at the regulator’s door seeking admission, regulators should be under no illusion that this group represents all the people who want to be lawyers. It represents the well-off, privileged, surviving contingent of a much larger population of people who might have liked to be lawyers, who wished they could be lawyers, who probably would’ve made damn fine lawyers — but who never proceeded one inch past the extremely exclusive and enormously expensive gateway of the law degree.

Dropping the law degree requirement for licensure, therefore, would benefit regulators, aspiring lawyers, and even the schools themselves. But wait, you say — what do we do about the legal knowledge required to be a lawyer? How will candidates acquire this knowledge — the second condition of a competence-based system — if the law degree is not mandatory?

The answer is that it’s in the very act of dropping the law degree requirement that a thousand flowers of legal knowledge acquisition could bloom. There are myriad sources available today, and more that could easily emerge, by which aspiring lawyers could acquire legal knowledge competence required for licensure. Universities and community colleges already offer undergraduate legal studies programs and diplomas; bar associations and private providers have created an ocean of CLE and CPD content; individual lawyers could even offer basic knowledge competence instruction in their speciality areas as a side business or pro bono. The more such options arise, the more affordable and accessible these offerings will become.

But none of these options will emerge without consumer demand. So long as a law degree is required to begin the licensure process, no aspiring lawyer will take courses or programs or instructions from any other source. Only when the law school monopoly on legal knowledge provision is removed can we hope to see new choices flourish.

Of course, even with any number of new options available, arguably the best source for acquiring the legal knowledge required for law licensure will remain: law schools. Courses, seminars, and clinics in law schools are proven opportunities to learn from professional educators with decades of experience. A licensure candidate could acquire many or potentially even all of the competencies they need from a law school — by enrolling only in those courses, seminars and clinics that give them what they need in order to demonstrate their legal knowledge competence to the regulator.

To accomplish this, law schools would learn to unbundle their degree programs, making courses available standalone or in concentrations of specific subjects, in person or online. Licensure candidates would choose from a menu of courses without having to commit to the time and expense of a full law degree. Of course, the candidate might still choose to complete the full degree. So might someone who wants a legal education but doesn’t intend to become a lawyer. In every case, it would be their choice. 

So, this is my proposal for the legal profession: Develop and institute a competence-based lawyer licensing system. Decouple legal education from lawyer licensing. Specify and publish the knowledge required for entry into the profession, invite a plethora of established and novel providers of legal knowledge to teach candidates what they need, and work hard to develop a fair and accessible method by which aspiring lawyers can demonstrate their knowledge competence to admission authorities. In the result:

  • The public will be better served by a defensibly and demonstrably more competent legal profession.
  • Aspiring lawyers will benefit from a swifter, more affordable, and more inclusive pathway into the profession.
  • New lawyers will benefit from more freedom to pursue the legal careers they want rather than the ones that will enable them to pay off mountains of debt.
  • Law schools will be released from the confines of regulatory dictates and can serve whichever academic or professional purposes they choose.
  • Regulators will benefit from focusing on their core licensing function of directly ensuring the competence of every new lawyer they admit to the profession.

None of these benefits will be quickly or easily realized. The disruption to the status quo in the legal profession will be immense. The organizations and institutions that benefit disproportionately from the current system — and you know who they are — will fight these notions with incredible ferocity. Changing the way we form the legal knowledge base of lawyers after more than a hundred years is an unbelievably daunting challenge.

But I absolutely believe it’s the right thing to do. And more than at any other time, it’s the right moment to do it. Let’s develop a competence-based lawyer licensing system and use it to eliminate the law degree requirement for lawyer licensure.

A competence-based lawyer licensing system in British Columbia

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Posted in: Competence, Law School, Licensing, Regulation

You might have been wondering what I’ve been up to lately, or why I’ve written so little here in the past several months. Okay, you weren’t wondering about that at all, but the answer is this: I’ve been immersed in a major project for a Canadian legal regulator that I’ve had to keep under wraps for some time, but that I can finally talk about more openly.

Back in May, I presented to the directors of the Law Society of British Columbia (the regulator of legal services and governing body for lawyers in B.C.) a report recommending a fundamental change in the lawyer licensing system in that province. Last week, the directors accepted that recommendation, setting in motion a process that I believe could eventually transform the legal profession in Canada, and maybe in the U.S. as well:

BE IT RESOLVED the Law Society develop a competence-based system for lawyer licensing in British Columbia, beginning with the development of a Competence Framework that identifies the knowledge, skills, and other attributes necessary to perform the essential duties expected of, and entrusted to, lawyers in B.C., as well as the threshold levels at which these competencies should be performed at the point of licensure.

That resolution was contained in this note to the law society directors (“Benchers”) from its Lawyer Development Task Force. It was based upon my 80-page, 27,000-word report to the Task Force titled, “A Competence-Based System For Lawyer Licensing in British Columbia”, which is now publicly available on the law society’s website. I invite you to click through and read it, because I think it really matters for the future of lawyer licensing — and not just in British Columbia.

Why do I think this report is so important? Because it should change the process by which people in B.C. become lawyers — abandoning an archaic, opaque, and exclusionary credentials-based system, and embracing a modern, transparent, competence-based system that will increase public and professional confidence in the ability of lawyers to do their jobs from Day One. It will bring lawyer licensing into line with other professions’ admission systems, improve the quality of service clients receive, and go a long way towards defeating “impostor syndrome” among new lawyers.

That’s a tall order and a significant claim, and I’ll go into some detail to explain it. But a few preliminary points first:

  • The law society resolved to develop a competence-based lawyer licensing system in B.C., but it will be several years before the first cohort of differently licensed lawyers enters the profession. Designing a competence framework for lawyers is a major undertaking, all the more challenging given the rapid shifts in our profession and in our society. Building a licensing process around that framework is another huge job. This will take a while.
  • My report made just one formal recommendation (above), which the directors accepted. But the report went on to point out several clear implications of introducing a competence-based system, and it’s these implications that I think will bring about extraordinary change in the licensing process. The directors decided to leave these implications to the Task Force and the framework developers to sort out, which is proper. But I’ll explain them in some detail.
  • Competence-based licensing is not entirely novel. The Solicitors’ Regulation Authority of England & Wales, a direct inspiration for my work in B.C., has a competence-based licensing system. The Law Society of New Brunswick recently introduced a competency profile with its new bar admission program. CPLED PREP, the bar admission program in four Canadian provinces, uses a limited competency framework.
  • My recommended approach in B.C. goes further, however. Among other things, it does not assume that a law school degree is an acceptable proxy for entry-level competence in legal knowledge, and it emphasizes socially aware professional responsibility as a core competence for new calls. No US state uses anything like this (though IAALS’s Building a Better Bar project ably showed how), but I think this report has wide-reaching and immediate application to the controversies tearing apart the American bar admission process.

So, all of that said, here’s a brief summary of why I felt a new lawyer licensing system was necessary in B.C. and elsewhere, what the new system will consist of, why it will usher in several positive developments for lawyers and clients, and what a basic “competence framework for lawyer licensure” would look like.

1. Expired Credentials. The traditional requirements for a law license in Canada are obtaining a law school degree or its equivalent, passing a bar admission program, and completing an articling term. (In the US, it’s just the degree and passing a bar exam.) All these requirements, to a greater or lesser degree, are basically credentials — certifications by a third party that the candidate has completed a task or run a gauntlet overseen by this separate entity to which the regulator has essentially delegated the gatekeeping function. The regulator accepts completion of these credentials as a proxy for the competence to practise law, without directly assessing the candidate’s overall fitness to practise.

2. Unidentified Competence. Upon what evidentiary basis does the regulator extend this proxy acceptance? How do we know that a law degree, a bar admission course, and a term of supervised practice collectively constitute an airtight case for competence? We don’t. Apart from the notable exceptions above, no regulator can identify the precise knowledge, skills, and personal attributes someone must demonstrably possess — and to what level of proficiency — in order to become a lawyer. We don’t have a detailed target definition of entry-level lawyer competence to which each of these credentials providers can refer when designing their programs or carrying out their responsibilities.

3. Professional Consequences. Everyone suffers from our failure to design an established competence profile for lawyer licensing, but none more so than new lawyers themselves. Admitted to the practice of law unaware of what qualifies them for the role, frequently missing key elements of competence, they often feel overwhelmed and deeply anxious. Law firm employers, too, routinely complain that most new hires are unready to practise law and require basic training just to bring them up to a level of minimum ability. Clients of new solos or new lawyers who lack good workplace support (and there’s a lot of them) will receive sub-competent service and might never know it. But the damage extends further, to the profession itself.

4. Legitimacy Consequences. It’s frankly kind of crazy that most jurisdictions have no official definition of entry-level lawyer competence. If a member of the public asks a regulator, “How do you know this lawyer is qualified to serve me?”, that person wants to know what constitutes a competent lawyer and how the regulator satisfied itself that this person is one. It undermines the profession’s claim to merit self-governance if the regulator can’t answer the simplest question about the standards of quality control of new lawyers — especially when, in practical terms, a lawyer once licensed is a lawyer forever (short of gross misconduct), making the point of professional entry absolutely critical.

5. Competence Frameworks. Regulators that can answer that question do so because they have identified in detail the multi-faceted profile of a Day One lawyer in their jurisdiction. Following lengthy study and extensive consultation with myriad stakeholders, they created a framework of overall competence in legal knowledge, ethical awareness, lawyer skills, and professional skills that reflected what a member of the public had the right to expect from a lawyer on their first day in practice. But they also were careful not to make this framework a “wish list” of ideal lawyer attributes, recognizing that “Day One” competence, while needing to meet minimum standards, ought not to be any higher than that.

6. Licensure Validity. In order to be considered valid and just, the elements of professional licensure competence must be (1) knowable by candidates, (2) accessible to candidates, and (3) demonstrable to the licensor. That is, licensure candidates must be able to easily find out what the competencies are, be able to acquire those competencies in a fair and accessible manner, and be able to show the licensing authority that they possess the competencies. Failure by the regulator to ensure these conditions creates barriers to professional entry — a person who might wish to be a lawyer cannot do so because they couldn’t discover the competencies, couldn’t afford to obtain them, or couldn’t equitably show the regulator that they possess them. The competence framework must be constructed with these three requirements in mind.

7. Competence “Starter Kit”. I was very reluctant to give the law society my opinion on the proper constituent elements of entry-level competence in their province. That decision has to be made by experts with much more experience and proficiency than me, in consultation with a very wide group of stakeholders. But I was invited to consider that there would be value in giving the law society a sort of “starter kit” of competencies in a suggested framework, in order to guide the earliest stages of the consultation process and give the directors a sense of what such a framework might look like. So after extensive research and reflection, I came up with the following:

1. Knowledge of the law

  1. Administrative law and procedure
  2. Business and corporate law and procedure
  3. Civil litigation, procedure, and remedies
  4. Contract law and drafting
  5. Constitutional law
  6. Criminal law, procedure, and sentencing
  7. Evidence
  8. Family law and procedure
  9. Legislative, regulatory, and judicial systems
  10. Property and tenancy law and procedure
  11. Torts
  12. Wills, estates, and trust law and procedure

2. Understanding of a lawyer’s professional responsibilities

  1. Client confidentiality
  2. Client trust accounts
  3. Conflicts of interest
  4. Fiduciary duties
  5. Select other aspects of the Code of Professional Conduct

3. The skills of a lawyer

  1. Gather relevant facts through interviews and research
  2. Carry out legal research
  3. Conduct due diligence
  4. Draft essential legal documents
  5. Solve problems using legal knowledge and analysis
  6. Help negotiate solutions and resolve disputes
  7. Advocate for a client’s position
  8. Provide legal advice to clients
  9. Use law practice technology
  10. Fulfill the basic business and professional requirements of a private law practice

4. The skills of a professional

  1. Establish, maintain, and conclude a client relationship
  2. Establish and maintain respectful and collaborative relationships with colleagues and others
  3. Communicate accurately and concisely, verbally and in writing, to different audiences
  4. Understand and use information management systems effectively
  5. Understand and use financial management systems effectively
  6. Manage projects and responsibilities to ensure they are completed efficiently, on time, and to an appropriate professional standard
  7. Organize one’s time and activities to ensure the prompt and successful fulfilment of one’s obligations

This all sounds sensible, right? There should be an official profile of a competent entry-level lawyer, and it should be used as the basis of a fair and accessible lawyer licensing system. That was the thrust of my single recommendation to the Law Society of B.C., and that’s what the regulator has now resolved to do.

But … that single recommendation arrived less than a third of the way through my report. The balance of the report went on for another 40-odd pages, because you don’t just recommend a fundamental change to professional licensure and walk away. I went on at some length to advise the law society: “Hey, listen: If you go down this path, you need to understand that a whole lot about how you educate, train, and license lawyers in this province is going to change, in ways that will shake the profession and maybe even transform the legal sector itself.”

In a follow-up post next week, I’ll describe the other changes to British Columbia’s licensing system that I can foresee arising from this development, changes that will be noticed and maybe copied by other jurisdictions — including one that likely will make some law schools very unhappy. And in a post subsequent to that, I’ll lay out my vision for an entirely new approach to lawyer licensure that I think every jurisdiction, including every US state, should consider and implement. There’s a lot to unpack, and I’m looking forward to the opportunity to show you what’s here.

Although this is not a simple undertaking, I’m optimistic that the example of the SRA’s Statement of Solicitor Competence, as well as the fine work done in New Brunswick and the CPLED jurisdictions, will make the path to competence-based licensure in B.C. swifter and surer than it has been anywhere else yet. And that, in turn, should hasten the day when every lawyer in Canada (and eventually the US) is admitted not on the basis of having jumped through a bunch of longstanding, exclusionary, and inadequate hoops, but on the basis of demonstrated competence to practise law. The public in general, and clients in particular, deserve better from our profession.

I’ll give the last word to an excerpt from the report’s introduction:

The last twenty years have seen an astonishing amount of change throughout the legal services sector, in terms of public demands, client needs, lawyer specialization, law firm business models, technological capabilities, and justice system access. The last two years of pandemic life have transformed parts of our society in ways that would have seemed inconceivable in 2019. The future promises us only more change — faster, more disruptive, and more transformational.

We cannot continue to form lawyers — to educate, train, and license them — the same way we did fifty years ago, twenty years ago, or even two years ago. It is a disservice to our profession and the public we serve to pretend otherwise, or to merely make incremental, uncontroversial tweaks to an outdated and increasingly unfit system. We cannot continue to prepare lawyers for law practice in the 20th century nearly a quarter of the way into the twenty-first. 

The question every legal regulator needs to answer

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Posted in: Access, Regulation

Earlier this month, I was fortunate to appear on the closing panel at the International Conference of Legal Regulators‘ 2021 Virtual Conference. The premise of our panel was that regulatory innovations are taking place in many different countries, and we should decide whether this is a good thing or not.

I was the last of the panellists to speak, and I shared with the audience the following observations, which I thought might be of interest to you.

– – – – – –

When I was reading over the description of this session, one line in particular jumped out at me: “Should everyone be embracing some form of innovation?”

I want to try answering that by reference to what we’ve just heard, because my fellow panelists are telling us something important about what’s happening not just in their own countries — reforms that authorize regulatory sandboxes, alternative business structures, and paraprofessional programs, among other things — but in the legal services sector worldwide.

What’s going on in all these places is really a return to first principles in legal regulation. These jurisdictions are asking themselves questions like, “What’s the purpose of legal regulation? What are we trying to accomplish here?”

I get to speak to a number of people in the legal regulatory field on a regular basis, and I sometimes ask them that very question: “What’s your purpose? What are you here to do?” And what I usually hear back is some variation on, “We are protecting the public.” I think many of you probably use that phrase, or it’s in your institutional mandate somewhere.

And I think it’s a really interesting answer, because it then allows me to ask an important follow-up question: “Okay. And what are you protecting the public from?”

That leads to a number of responses, which all tend to revolve around a common theme: “We are protecting them from unscrupulous providers of legal services. We are protecting them from incompetent purveyors of legal assistance.”

Okay. Good answers. I think we’d all agree that it’s pretty important to keep the unscrupulous and incompetent away from people whom they could exploit and abuse.

But see, here’s where it gets interesting. Because traditional legal regulation, having answered that question, then makes a fundamental error.

Traditional regulation says, “We want to protect the public from the unscrupulous and incompetent. And here’s how we’re going to do it. We’re going to divide the world into two groups: lawyers, and everyone else.”

So they divide the world into these two groups, and they say, “Lawyers: we presume you to be scrupulous and competent. Everyone else: we presume you to be unscrupulous and incompetent.”

Now, I put it to you that this is a category error. Traditional regulation takes one question — “How do we keep the unscrupulous and incompetent away from people?” — and answers a completely different question, by saying, “Here are lawyers. They’re fine. Everyone else is out.”

It’s an error because you and I and everyone else here today knows two things are true:

  • Some lawyers are unscrupulous and incompetent.
  • Many non-lawyers are scrupulous and competent.

I don’t think that’s a blasphemous observation. I think that’s reality.

And legal regulation recognizes half of that. Because it puts in place a system by which lawyers have to do certain things to get licensed, and they have to do other things every year to stay licensed. Now, I have my opinions about how effective those things are. But at least we’re doing them. We favour lawyers with the presumption of competence, but we test that presumption.

But legal regulation does not extend the same courtesy the other way. The presumption of incompetence and unscrupulous nature for non-lawyers is absolute. The prohibition is absolute. There is no process by which non-lawyers can try to rebut the presumption of their unfitness.

Except, that is, in England & Wales. And in Utah. And in British Columbia. And in Arizona. And in many other jurisdictions — like Germany and Australia and Scotland and Florida and Ontario and Washington and Alberta and North Carolina. In all these places, regimes have been set up, or pilot projects are being proposed and established, whereby people who aren’t lawyers are given the opportunity, the mere sliver of a chance, to say, “Hey — I know we’re not lawyers. But we’re ethical. And we’re effective. And we can do some good for people.”

And you know what — people need someone to do good for them. Because whatever the quality of the services lawyers are giving, most people aren’t getting those services. We know this. We didn’t need study after study to prove it, although we have them now, too.

And so I say to regulators, “Okay, you’ve kept the public safe from the unscrupulous and incompetent. More or less. So — is the public fine now? Do they have what they need? Is everyone happy?

“And if that’s not the case, then have you done your job? If the quality of legal services is high, but the availability of those services is a mere trickle, and millions upon millions of people can’t get the legal help they need, then is your work here done? Or is there more you can do? Are you here only to protect the public? Or are you also here to serve it?”

Answering those questions, I think, leads regulators to rethink their purpose, reimagine their goals, and readjust their strategies. It leads them to try something new and different, in hopes of getting better outcomes for more people.

There’s a word for that. It’s called “innovation.” And yes — everyone should be doing it.

Defining lawyer competence

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Posted in: Competence, Licensing, Regulation

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.

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?”

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.

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.”

“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

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Posted in: Change, Innovation, New Lawyers, Regulation

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

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Posted in: Competence, Law School, Lawyer Formation, Licensing, Regulation

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

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Posted in: Competence, Licensing, New Lawyers, Regulation

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.

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.

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.

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.