CPD and the Presumption of Competence

I visited my local Service Ontario office recently to do something the government requires of me every five years: renew my driver’s license. Fifteen minutes, a few signatures and a couple of photographs later, the deed was done, and I received my new license by registered mail a couple of weeks afterward. Couldn’t have been easier.

I did have to prove a number of things before I could get my new license, mind you. I had to bring in my passport and birth certificate, attest in good faith that I was a citizen of Canada, that sort of thing. Interestingly enough, however, the one thing I wasn’t asked to prove during the whole process — they didn’t even bring it up, in fact — was this: am I still a competent driver?

It’s actually kind of remarkable, when you think about it, that the driver’s test you passed as a teenager gives you lifetime access to steer a vehicle on public roads. Short of criminal convictions for reckless or illegal driving, your license is pretty much a permanent possession, regardless of how much your skills and attention behind the wheel slip over the ensuing decades, how careless you become with rolling stops or how incompetent you remain at parallel parking.

Much the same problem bedevils the legal profession. The law degree attained, the bar admission course passed and the articling period completed — all in the space of a few short years in your professional youth — grant you the right to call yourself a lawyer and sell legal services for the rest of your life. Few lawyers find this incongruous, although I suspect many people outside our profession do.

But at least, you might object, unlike with driver’s licences, we have continuing professional development — and in a growing number of jurisdictions, mandatory CPD — to assure our ongoing competence. In fact, I would submit, we have nothing of the sort. CLE and CPD are the professional equivalent of driver’s license renewal. They roughly correspond to showing up with your passport and getting a new picture taken.

You don’t have to prove you learned anything by sitting through yet another series of CPD lectures. You don’t have to prove you even paid attention as the presenter read out the contents of yet another PowerPoint slide. And you especially don’t need to prove that, having taken the course, you’re now better able to provide services to the public.

CPD isn’t like taking your driver’s test again. It’s like sitting through driver’s ed again, only this time with a thick binder of updates about the new rules of the road and with no examination afterwards. In both cases, competence testing is forensic. We find out who the bad drivers are when they wreck their cars. We find out who the bad lawyers are when they wreck their cases or their practices.

These thoughts occurred to me when reading a provocative article by Gyi Tsakalakis at Lawyerist.com called “Licensed vs. Competent,” a title that sums up very nicely the distinction we should be drawing here. Gyi quotes a comment by Andy Mergendahl that cuts to the heart of the matter: A lawyer is presumed competent if she has a law license. That, I think, is a convenient but dangerous presumption for the legal profession to make. Gyi goes on to ask a series of hard questions:

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?

These are questions, I submit, that our governing bodies (and by extension, we ourselves) have failed to really confront. The whole debate over articling reform comes down, as I’ve argued previously, to the question of whether articling is meant to ensure competence. But let’s say, for hypothetical purposes, that we did come up with an affordable and practical articling system, one that could satisfy outside observers that new lawyers are competent to practise law. What about five years after that? Ten? Twenty? Those latter stages of their careers, in fact, at which they’re probably handling the most significant matters of their lives — how do we know whether they’re still qualified then?

I don’t have ready answers to any of these questions, but I strongly suspect that they’ll be asked with increasing frequency and urgency, and not always by lawyers. In medical circles, the rule for training surgeons is: “Watch one, perform one, teach one.” Nothing like this exists in the legal profession, outside the most devoted practitioners of intense, one-on-one mentoring. Will we see that standard mandated to ensure lawyers’ competence, perhaps on an annual basis? If not by lawyers, then by an authoritative third party?

It’s the simplest things that escape scrutiny, the longest-standing assumptions that are examined the least. Lawyers have always had lifetime licenses to practise law, and we may have forgotten how unusual that is. We should be prepared for someone to remind us.