Lawyer Competence vs. Lawyer Competitiveness

If you’ve been following my work over at Law21, you’ll know that I’ve been immersed lately in lawyer competence: what its components are, what its less obvious elements include, and how we can go about building it. I’ve been fortunate to work with some Canadian law societies in making recommendations and helping develop frameworks to govern and guide developments in this area.

Whenever we talk about lawyer competence, we need to work out exactly what the threshold or minimum standard of that competence should be. One line of thinking in this regard is that the minimum standard of lawyer competence — what’s necessary for initial and continued licensure — should be as high as we can possibly make it. There are a few arguments in support of this position:

• A license to practise law is effectively permanent (in the absence of disbarment-worthy misconduct) and is not (yet) subject to re-qualification, so we should require the utmost degree of aptitude at the start of a lawyer’s career.
• Lawyers face an increasingly competitive and diversified field of legal service providers, with more on the horizon, so in order to ensure their continued viability in the market, we must set competence standards very high.
• The demands of professionalism compel lawyers never to be satisfied with “mere” competence, but always to strive for high levels of proficiency from the first day of licensure, refusing to settle for the bare minimum.

These arguments certainly have their merits, and I’m not suggesting we should lower our standards of professional effectiveness. But on the whole, I think this line of reasoning is misdirected — or at the very least, it’s misdirected when applied to the licensers and regulators of lawyers.

Essentially, I think there’s a difference between “minimum” competence standards for initial and ongoing licensure, and “higher” competence standards for professional status and competitive advantage. The first is the business of regulators; the second is not. Regulators should be setting a “floor” for lawyer competence; they should leave to others the matter of raising lawyers’ “ceiling.”

A regulator’s job is to set a robust degree of minimum competence sufficient to advance the public interest in lawyers’ performance, and then enforce that standard through licensing and continuing development. It is not their job to constantly challenge lawyers with the Olympic motto, “Faster, stronger, higher.” Whether and to what degree a lawyer decides to outstrip the expectations of minimum competency is that lawyer’s decision, driven by their desire for more engaging, high-status, and lucrative work; but the regulator should stay out of it.

I’m influenced here in part by Clayton Christensen’s observation that a key reason why successful incumbents struggle in the face of new competition is that they end up overshooting their markets’ needs. Incumbents are too focused on adding ever-more bells and ever-louder whistles, always offering more features that they believe make them more attractive to customers, but that their customers come to regard as extraneous self-indulgence. New providers come along and offer only what the customer needs, faster and at a lower price, and gain market share thereby.

When I hear arguments in favour of regulating a higher standard of competence than is normally required to obtain and maintain a license, I get a distinct Christensen vibe. It feels like lawyers are confusing their desire to always improve the quality of their offerings with a self-regulating profession’s baseline duties to the public.

This is one of the reasons I’m not a fan of law societies awarding “specialist” designations. The idea is that a lawyer may, upon accruing enough experience and expertise in their practice area, apply to the law society to receive a “Certified Specialist” designation. On the Law Society of Ontario’s website, for example, we find:

The Certified Specialist Program recognizes lawyer licensees who have met established standards of experience and knowledge requirements in one or more designated areas of law and have maintained exemplary standards of professional practice. … This designation shows the public and colleagues within the legal professions that a lawyer is accomplished and has been acknowledged to be so by the Law Society.

With all due respect to the commendable desire to recognize and reward exemplary accomplishment by a lawyer, this is not the regulator’s role. This sort of project is more properly the province of the Canadian Bar Association, or The Advocates’ Society, or other private lawyer organizations whose focus is on helping their members be more competitive in their markets.

If a law society considers that a person has met the standards of licensure, it should admit that person to the practice of law and take steps to ensure those standards are being maintained, and that should be the extent of its activity in this area. If a lawyer is highly accomplished and wishes to prove and announce that to the market, in order to buff their reputation and enhance their competitiveness, that is a matter to pursue with their peers in the private bar.

Accordingly, I would advise regulators to keep issues of lawyer competence and issues of lawyer competitiveness separate. There is significant public interest in defining and ensuring the minimum competence of all legal services providers. From that starting point of minimum competence, lawyers can and should constantly grow in quality and expertise — but that’s a process regulators should watch from the sidelines, not direct on the field.