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Ensuring Competent Representation: Know What You Don’t Know

You’ve got to know when to hold ’em
Know when to fold ’em
Know when to walk away
And know when to run
You never count your money
When you’re sittin’ at the table
There’ll be time enough for countin’
When the dealin’s done

The Gambler (Don Schlitz; performed by Kenny Rogers)

Being a competent lawyer means knowing your own limits. Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the codes governing their conduct. Those codes define the competent lawyer as “recognizing limitations in one’s ability to handle a matter of some aspect of it and taking steps accordingly to ensure the client is appropriately served” (FLS Model Code, Rule 3.1-1(h)). They further state that a lawyer ought not to take on a matter for which she is not competent and must recognize “a task for which the lawyer lacks competence” (Rule 3.1-2, Commentaries 5 and 6).

How difficult can this be? Quite, according to some recent media reports. While the facts as reported are not sufficient to support the conclusion that the lawyers involved acted improperly, they do at least raise the question: given the apparent disconnect between their expertise and their clients’ circumstances, why were these lawyers acting? And what lessons might we be able to draw to allow lawyers to appreciate when folding ‘em is wiser than holding ‘em?

The first case is the representation of Jian Ghomeshi by two lawyers from the Dentons firm. As noted here – Why did Ghomeshi hire Dentons? – the lawyers who filed Ghomeshi’s (now withdrawn) civil claim against the CBC were a partner specializing in “commercial litigation and insolvency” and a senior associate “with experience in real estate, employment, defamation and fashion.” The dubious merits of that claim have been widely discussed (see, e.g., here: Levitt on Ghomeshi). More concerning, however, is the admission in the Claim that Ghomeshi engaged in “sado-masochism”, an admission Ghomeshi also made in his statement on Facebook (which counsel may or may not have reviewed before it was posted – Ghomeshi FB post). It is hard to see how either the Claim or Facebook post advanced Ghomeshi’s legal interests and it is quite easy to see how each may ultimately injure those interests given that “when it comes to BDSM – or at least its more intense versions – the law doesn’t actually care about consent.” (See: Cossman on Consent).

The second case arises from a lawsuit brought – ironically enough – against Ghomeshi’s new counsel, Marie Heinen, and another criminal defence laywer, Steve Skurka. Skurka and Heinen have been sued by their former client Nathan Jacobsen in part because of their representation of him in a US criminal trial. A December 5, 2014 article in the Globe and Mail noted that Jacobsen’s original guilty plea in the US was struck out, and that his American counsel argued that Jacobsen has received “ineffective assistance of counsel”. It also reported that in testimony in the US proceeding, Skurka stated “We were hammered by the fact, Ms. Henein and I, by the fact that there were different discovery rules than we had in Canada.” (Globe and Mail, December 5 2014)

Heinen and Skurka are not the first Canadian lawyers to be criticized for their handling of a US criminal case. Eddie Greenspan’s representation of Conrad Black several years ago was criticized not only by Black, but also by journalists, although the journalists were not necessarily prepared to see Greenspan’s representation as the cause of Black’s problems: “This wasn’t Eddie Greenspan’s finest hour. But it is stingingly absurd to suggest that Conrad Black was done in by his lawyers. He was done in by the facts.” (E.g., Wells on Black and Greenspan). It should also be acknowledged that Greenspan worked with US counsel on Black’s representation – in fact, he made the retainer of such a lawyer a condition of his representation (Greenspan on Black)

In each of these cases the lawyer’s (or lawyers’) area of expertise (insolvency and commercial litigation/Canadian criminal law and procedure) deviates from the issues raised by the representation (sex and employment/US criminal law and procedure). The quality of their representation has been challenged. So why were the lawyers acting? Why didn’t they refuse the brief?

My guess is that it was not because of ignorance of their legal and ethical duties. Rather, it was because they did not see any issues with the representation.

One explanation for that (mis)perception may be that the feeling of not being competent is not abnormal for a lawyer. Most lawyers in the early stages of their career – and some lawyers (and academics!) at later stages of their careers – will feel like they don’t know enough, or have sufficient skill, to be handling the work they have been given to do. But they persevere, because the work has been given to them and it’s their job to figure out how to do it as best they can. They trust the senior lawyer to identify any mistakes, or their own hard work and effort to ensure that such mistakes are avoided. As a consequence, however, lawyers may become somewhat inured to that feeling of incompetence, and less likely to see it as a basis for ethical decision-making.

Another may be that human beings simply tend to think we are better at things than we are. In one study 94% of university professors rated themselves as above average teachers (here); in another study 88% of drivers reported themselves as above average (here). Evidence does suggest competent people have better self-assessment in their area of competence than do incompetent people (the Dunning-Kruger effect, summarized here), which might suggest that lawyers ought to know the boundaries of their competence. But on the other hand, it may suggest the opposite: that it is at the boundaries of our competence, when we are becoming incompetent, that we become the least able to assess our own abilities. As David Dunning noted in the article linked above, “Logic itself almost demands this lack of self-insight: For poor performers to recognize their ineptitude would require them to possess the very expertise they lack.” It may be at the point where our expertise runs out that we do not know that it has.

A further contributing factor is the fact that while lawyers clearly do specialize we do not treat ourselves as specialists from a regulatory perspective. We admit all lawyers to legal practice as generalists and we don’t identify them as specialists absent the satisfaction of certain criteria (and even that only occurs in some jurisdictions). This may create a perception amongst members of the bar that they have general competence, that their competence is not limited to their area of specialization. As a result lawyers may be more willing to practice outside of their specialty than are, say, doctors; one can’t really imagine a dermatologist being willing to practice occasionally as a neurosurgeon, or a neurosurgeon deciding to dabble in skin cancer detection.

If this is the case, then how might a lawyer avoid overreaching into areas where she lacks the necessary competence? One way is to view oneself as a specialist and to know what that specialty is. The specialty may not be an area of law – lawyers practicing in smaller communities and litigators often deal with a variety of legal questions. But it may be that all one’s clients are individuals; the cases are small; they don’t involve issues of crime or sex; they all occur within Canada.

And if a case is outside of her area of specialty, then the lawyer ought to presume that she is not competent to deal with it, and also be aware that she is far more likely to mistakenly believe that she is competent than to mistakenly believe that she is not. That, most significantly, the lawyer may not even know the risks to her client that her lack of knowledge and experience in the area presents, because she doesn’t know enough about the governing law and procedures to know the dangers. A lawyer who, e.g., never practices in areas touching on criminal law simply will not appreciate that an admission of certain sexual practices may indicate guilt regardless of consent. This does not mean that the lawyer cannot have be involved in such a case, but it does suggest that the lawyer ought not to act as sole and senior counsel on it. Rather, the lawyer should be involved in a junior or supporting role in the case or, if acting as senior counsel, should ensure that there is supportive expertise provided by someone with the knowledge and competence the lawyer acts.

Comments

  1. Alice, your point is clearly well taken in general however I think that commenting on specific cases where we cannot know what was said or disclosed to counsel, who else may have been involved and where counsel is ethically prevented from responding is fraught with problems.

  2. Dermatologists engage in a form of neurosurgery all the time: it is called Botox. Neurosurgeons do not engage in skin cancer detection but they are part of brain cancer diagnosis: it is called biopsy. These are not conceits regarding a professional’s skill beyond a defined scope of practice. They are realities of practice stemming from the sameness of the ultimate subject matter: the human body.

    Without commenting on the specific legal representation pathologies cited by Alice, I would say a lot of lawyering today similarly requires familiarity with aspects of the client’s problem falling outside cookie-cutter boundaries. Sometimes that means bringing in specialists for each aspect, but not every client can pay for a tactical brain trust at thousands of dollars an hour.

    Getting back to doctors, the more appropriate ‘Wild West’ analogy in Canadian medicine is cosmetic surgery, often performed by G.P.’s with a basic M.D. licence, no specialist designation and no real quality control apart from civil malpractice litigation. On the subject of scope of practice, doctors are regulated in terms of the qualifications they can advertise and not the procedures they can perform. The following reasons at paras. 147-49 of Asgari v. Jain, 2006 CanLII 20530, describe the situation in the medical context:

    “[147] The regulatory background to this issue is as follows. There are a number of surgical and other procedures that are typically performed, in whole or in part, by licensed physicians and surgeons describing themselves as “cosmetic surgeons”. The Royal College of Physicians and Surgeons of Canada (the “College”) does not, however, recognize cosmetic surgery as a specialty or sub-specialty. Therefore, there is no licensed speciality of “cosmetic surgery”.

    “[148] Many specialists in certain areas, including plastic surgery, dermatology and otolaryngology, also perform cosmetic surgical procedures. There is no regulatory prohibition against such practitioners including “cosmetic surgeon” in a description of their practice.

    [149] Similarly, some general practitioners also perform cosmetic surgical procedures. There is, similarly, no regulatory prohibition against a general physician performing these procedures provided that the physician has sufficient training and experience. There is also no regulatory prohibition against a general physician using the term “cosmetic surgeon” to describe his or her practice. In the case of physicians operating in a hospital, the physician must demonstrate sufficient training to satisfy the hospital accreditation committee before operating privileges are extended to the physician. In the case of physicians having their own clinics, however, there is no comparable administrative proceeding beyond the self-assessment of the physician.”

  3. I would second the above caution regarding commenting on an individual case without knowing all of the facts. There are often times when clients knowingly choose to engage less than perfect solutions (ex. Canadian counsel for US criminal matters) for reasons that resonate with their goals or interests, whether or not correlating with their best legal interests. Among the factors one can expect the client to consider are costs, public relations, personal familiarity/comfort/trust, convenience, etc. A lawyer should certainly be aware of their ethical duties, but it may be that at times the client is most appropriately served by operating outside of ones comfort zone.

    As for the medical practitioner/lawyer analysis, I would think the closer analogy would be the GP with occasional rotations in the ER. They like many lawyers deals with the patient/client as they find them, referring them to specialist often when there is the luxury of time and resources, but often having to address the area themselves to the best of their ability, whether or not they have been particularly trained or experienced in that area.

    (Ex. some GP’s are more willing than others to do minor surgeries. Of those who do, some leave you wishing they had refused, as they are less than practiced with their technique and can cause unnecessary pain and scarring. That said, it still is worth it sometimes, in order to have your condition treated immediately, rather than waiting for an appointment with a specialist).

  4. Michael Drouillard

    It is trite to say that a lawyer shouldn’t act in a matter when he or she isn’t competent to do so. It is also trite to say that it is difficult to recognize the boundaries of one’s competence.

    Keeping in mind that the author may (rightfully) believe the following to be off-topic, I wish the author had considered in greater detail the negative effects of being too conservative about one’s ability to practice law in new areas. A general statement to the effect of “don’t practice outside of your area” with little more is not particularly helpful and threatens to stifle entrepreneurialism amongst younger lawyers and, ultimately, access to justice.

    In my view, a lawyer, particularly a newer one, faced with a new problem shouldn’t be too quick to pass on the file and instead should first consider putting in the hard work of learning a solution on one’s own and at one’s own expense through research.

  5. The focus here seems to be on competence, but what about being more than competent? I know lots of people with health problems and excellent, competent doctors, sometimes even specialists, who get referred to even more specialized specialists because the doctors themselves, out of concern for the patient, want them to have a second opinion from someone even more of an expert (i.e. doctor-initiated 2nd opinion or referral). Some people who’ve had surgeries referred to another surgeon with more and better experience, even though the first surgeon was competent. Out of the 1st surgeon’s concern for the best outcome for the patient (client).

    By comparison if one has a wealthy, sophisticated client who would (or might) be happy to spend even more money on a legal specialist with an expected greater chance of a successful outcome, shouldn’t a lawyer explore the possibility of adding someone to the team? Even if it might lead to their own replacement, because of their duty to their client? Perhaps when dealing with a U.S. proceeding especially e.g. “I’m happy to represent you and am confident, but in addition to retaining a co-counsel in the jurisdiction I think we should discuss the possibility of retaining at least as a consultant [an expert in private practice who used to be with the applicable government department or agency and who has a record of successful results, both negotiated pleas or at trial]”?