Licensed vs. Competent

If you haven’t done so already, I recommend that you take a look at Andy Mergendahl‘s series, What If Anyone Could Give Legal Advice? Parts 1, 2, 34, and 5.

Andy raises some thought-provoking questions about the legal profession and has motivated some pretty good discussion and commentary. In fact, it was one of Andy’s comments that motivated me to write this post:

How does the general public know which lawyers are competent now? A lawyer is presumed competent if she has a law license. A new lawyer with zero experience in child protection law can take just such a case. It’s possible that lawyer might face discipline after she botches the case, but does that help the client she failed? Does her discipline protect the public from the next new lawyer?

As Andy suggests, eventually it may be left to a grievance commission, disciplinary panel, or in the cases of malpractice, a judge, jury, or malpractice insurance adjuster.


While admissions requirements vary somewhat from one state to the next, generally speaking, when a lawyer meets the eligibility requirements to practice in her state, and is sworn in, she is licensed to practice law in that state in any case or matter before the courts of that jurisdiction (perhaps with some limited exceptions).

But does being licensed mean that she is competent to practice law in any case or matter before the courts in that jurisdiction?

Should it?

I don’t think that many of us would disagree that, today, the size of the gap between licensed to practice and competent to practice ranges wildly from case (or matter) to case, as well as, from lawyer to lawyer. I think it’s pretty clear that law schools don’t teach law students how to be lawyers.

We can easily think of cases and matters that could be competently handled perhaps by 90% of the lawyers licensed to handle them. We can also easily imagine cases that are better left to only a very small percent of the exceptionally experienced and skilled. And everything in between.

But when it comes to deciding who is competent to take what cases, when and why, who decides the “who”, “what”, “when”, and “why”?

Clients?

I’m as much a buyer beware person as the next, but isn’t the very reason for licensing and regulation, at least in part, to protect the public from incompetent lawyers?

Law schools? Ahem, not in their current state.

And what does it mean to be competent? Knowledge? Skill? Experience? Preparation? Is there an emotional component to being a competent lawyer?

State Bars and Standing Committees?

Like most states, in Michigan (where I’m licensed, but not currently practicing), pursuant to the Michigan Constitution, the Michigan Supreme Court has exclusive authority over the regulation of lawyers and the practice of law.

With its authority the Supreme Court has created two bodies that handle the admissions process: The Standing Committee on Character and Fitness and The Board of Law Examiners.

The Standing Committee on Character and Fitness investigates the background of applicants and makes a recommendation regarding whether an applicant has the requisite character and fitness to be admitted to practice.

The Board of Law Examiners conducts the bar examination and receives the recommendation of the State Bar Standing Committee regarding applicant character and fitness.

It is the Board of Law Examiners that ultimately makes the decision regarding whether an applicant should be admitted to practice.

The requirements for admission to practice law in Michigan are prescribed by the Michigan Supreme Court in the Rules for the Board of Law Examiners.

Rule 1 states, in pertinent part:

“An applicant for admission to the practice of law must

be 18 years old or older;

possess good moral character, and

have completed, before entering law school, at least 60 semester hours or 90 quarter hours toward an undergraduate degree from an accredited school or while attending an accredited junior or community college.”

***

Prior to admission by examination, an applicant must pass the Multistate Processional Responsibility Examination (MPRE).

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An applicant for admission must obtain a satisfactory score on the Michigan bar examination, or be eligible for admission without examination.

As you can see, Michigan, like many other states, has an age requirement, some education requirements, a character and fitness requirement, and examination requirements.

And as anyone who has gone to law school and passed the bar exam knows, this hardly qualifies for making one competent to practice, right?

So what are some alternatives?

  • Probationary licenses?
  • Limited licenses with supervision?
  • Residencies, Practicums, or Law Firm Schools?
  • Mandatory apprenticeships?
  • The Judgment of each individual lawyer?

Lawyers Just Know When They’re Ready

I anticipate that some folks will say that whether or not an attorney is competent to take a case rests with that attorney’s professional judgment. They might say that this is the current state of things and refer me to Rule 1.1:

Client-Lawyer Relationship

Rule 1.1 Competence

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

It’s a matter of professional responsibility, better, and obligation of the profession to only take on cases for which the lawyer is competent. This is probably the most popular answer.

But then this happens.

Unfortunately, leaving lawyers to decide their own competency (especially new lawyers) is rife with the lawyer’s lack of experience, subjective perspective, personal bias, pride, ego, desperation, poverty, and a host of other issues.

It seems to me that if the profession wants to remain “self-governing”, the burden falls on all members of the profession to address this gap between licensed and competent.

With the unbelievable number of new lawyers cranked out every six months, can the competent keep up?

It seems to me, that narrowing the gap between licensed and competent requires movement in both directions:

  • Building real competency requirements into licenses and;
  • More supervision of the competency of newly licensed lawyers.

What is Competence Anyway?

Of course, evaluating the competence of lawyers is a tricky matter in itself. What is the line between a crappy lawyer and an incompetent lawyer? Should there even be a distinction?

Taking a look at  the comment to Rule 1.1 we learn:

Legal Knowledge and Skill

[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.

[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.

Thoroughness and Preparation

[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. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).

Maintaining Competence

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Perhaps it’s unrealistic to think that the gulf between license and competence can ever be completely closed. Ultimately, there has to be some balance between the obligations of the profession to license competent attorneys, individual attorneys to only accept clients and matters that they feel they can competently handle, and clients to interview attorneys and make reasonable choices about who they hire.

Nonetheless, it seems terribly easy to get a law license and represent another person in a serious legal matter in which a lot is at stake without anyone really keeping an eye on the ball.

What’s A Lawyer to Do?

So how can lawyers move in the direction of being more competent? Simply follow the rules:

  • What is the relative complexity of the case/matter?
  • Have you handled cases/matters like this in the past?
  • Do you have educational background, training, or other unique experiences related to the case/matter?
  • Will the circumstances provide you with sufficient time for you to be prepared?
  • Do you have senior attorneys at your firm, or mentors, with whom you can consult?
  • What’s at stake?
  • Have you been keeping up?
If in doubt, and you don’t have senior attorneys or mentors to consult, you can always consult with your State Bar. You should also consider joining a listserv. Active listserv’s can provide you access to a wealth of knowledge from many competent attorneys.
If, after asking yourself these questions and consulting with more experienced attorneys, you still doubt whether you have the requisite competency, then your choice is simple: Don’t take the case.

(photo: http://www.flickr.com/photos/figgenhoffer/4998767075/)

Law School, Lawyering Skills, Legal Ethics

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  • Tudor Capusan

    Apprenticeships should certainly be more emphasized or maybe even required. The law profession should copy the model of the medical profession. Law and medicine require a lifetime of learning. Leaving the lawyer to figure it out on their own increases the risk to the public and decreases the public’s confidence in the profession in the long run.

    • http://gyitsakalakis.com Gyi Tsakalakis

      What’s your vision of apprenticeships? Who is taking on new lawyers as apprentices? Is there compensation involved? When do they take place?

      Should there be “teaching law firms” as there are “teaching hospitals”?

  • http://www.michiganautolaw.com Steven Gursten

    I would add that many states make it very difficult for competent lawyers to market this competence to the public. Many states still follow older versions of the ABA Rule 7.1 which is essentially a complete prohibition against comparing a lawyer to another lawyer. This unfortunately hurts the public and levels the playing field in favor of those lawyers who are merely licensed or of average or below-average legal skill against those who truly specialize or have demonstrated extraordinary skill and results in a particular area. I would note that when the ABA amended rule 7.1 in 2002 to the new model rule, it did so precisely because the old rule was making it harder for better and more distinguished lawyers to separate themselves from those that are merely licensed. Unfortunately, this does not help those lawyers in roughly half the states that still follow the old rule.

    In the post below, I also asked if there is now a better way to serve the public, and whether now is the time to amend our current rules:
    http://www.michiganautolaw.com/auto-lawyers-blog/2010/07/01/the-worst-commercials-for-personal-injury-lawyers/

  • Attorney

    This post is based on nothing but assumptions. Just because an attorney has been practicing law for 20 years doesn’t mean he or she is better at her job. Even as an intern, I went up against attorneys who have been practicing law longer than I have been alive, and I still won the case. Competence is being able to provide the right information to your client. Most younger lawyers don’t struggle with the law. It’s the courtroom procedures and the local rules of how to handle a case that is novel when staring out.