Defining lawyer competence

Think about these two questions for a moment:

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

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

How would you answer them?

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

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

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

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

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

My definition is this:

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

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

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

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

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

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

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

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

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

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

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

Specific vs. General Competence

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

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

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

Where do you dare me to draw the line?

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

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

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

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

A Definition of Lawyer Competence

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

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

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

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

1. Integrity

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

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

2. Proficiency in the Law

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

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

Everybody’s got advice they just keep on giving

3. Client Service

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

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

4. Professional Civility

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

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

5. Wellness

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

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

General Observations on the Definition

The Order of Aspects

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

The Development Continuum

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

“Demonstrated” Competence

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

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

“High” Standards

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

Continuing Qualification

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

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

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

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

The legal regulation revolution

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

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

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

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

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

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

1. Regulatory changes that affect lawyers’ businesses

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

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

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

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

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

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

2. Regulatory changes that affect the wider legal market

(a) Sandboxes and Laboratories

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

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

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

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

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

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

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

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

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

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

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

(b) Legal Para-Professionals

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

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

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

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

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

3. Reports recommending changes to lawyer licensing and bar admission

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

The future of legal sector reform is now

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– – – – – – – –

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

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

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

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

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

The CASE for standards of supervised practice in lawyer licensing

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

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

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

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

Bar admission: Harder than you might think.

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

Here are the most serious problems afflicting articling in Canada:

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

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

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

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

Res ipsa loquitor.

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

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

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

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

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

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

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

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

Toughest CASE to crack yet.

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

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

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