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March 1, 2002
What does ‘competent representation’ really mean?

By J.R. Phelps
LOMAS Director

Few attorneys would argue with the statement — Law schools do not graduate competent practicing lawyers. Instead, law schools graduate persons with “technical competency,” i.e., graduates who have mastered substantive legal principles and know “how to think like a lawyer.” These skills, however, are only half of the “competency equation,” which is equal parts technical substantive skills (“technical competency”) and the ability to bring those skills to bear for the benefit of and to the satisfaction of a client (“performance competency”). It is this performance competency, the ability to communicate adequately with a client and then timely perform services so that reasonable client expectations are met, which is missing from too many lawyers’ erudition as demonstrated by Florida Bar disciplinary statistics.

Every lawyer needs to develop “performance competency.” Only when a lawyer can bring together technical and performance skills to achieve a satisfactory work product or service which meets reasonably established client or employer expectations can that lawyer truly be considered “competent.”

Bare knowledge of the law is not enough to brand a lawyer “competent.” The fact that an attorney possesses skills of technical competency to know the law which applies to a client’s problem is of little value if that knowledge cannot be applied to bring about a tolerable, if not satisfactory, resolution for the client. Clearly, knowledge of the law alone is not enough to brand an attorney truly competent. If, on the other hand, one has the ability to use and apply the law leading to a client’s solutions, but is unable to produce a work product that reasonably and economically meets the client’s expectations, one has failed to perform competently and the client has not been well served.

Current Bar rules and ethics opinions only minimally acknowledge that the practice of law includes a substantial business component. Professional competence requires the ability to function administratively, not only in the client’s best interests, but also in the attorney’s own business interest as well. If a lawyer cannot organize work to meet deadlines, manage a system to monitor the running of statutes of limitations, or keep track of client costs and expectations, then the lawyer’s ability to perform competently, including adherence to ethical rules, may be substantially impaired. Many disciplinary cases stem from this reality.

A total of 9,491 Bar disciplinary case files were opened between July 1, 1999 and June 30, 2000. A breakdown by category reveals 55 percent involved issues of “performance competency,” including such things as neglect (22 percent), excessive fees (11 percent), inadequate communication (11 percent), trust account violations (7 percent), and conflict (3 percent). The other 45 percent involve issues of “technical competency.”

Many of the 5,220 “performance competency”-based disciplinary cases opened by The Florida Bar’s prosecutors were necessary because the lawyer(s) involved were never trained or exposed to the “performance” part of the competency equation. Consequently, literally thousands of lawyers unintentionally violate generally expected business practices, and otherwise engage in activities contrary to standards which judge and govern their performance conduct.

“Competent handling of a particular matter includes. . ., use of methods and procedures meeting the standards of competent practitioners.” Rule 4-1.1 Comment.

A study prepared for The Florida Bar by Penn & Schoen Associates, Inc., June 30, 1995, Perceptions of Lawyers: The Client’s View, page 5, recommends improvements in practice management skills that parallel the statistics from disciplinary complaints:

• Billing procedures and fees must be explained and outlined to clients to ensure that they are comfortable and understand precisely how they will be billed.

• Critically important is clear, timely, and empathetic communication between an attorney and the clients.

If a lawyer cannot competently manage his or her practice, that lawyer is far less likely to produce competent work or service for a client. Many incompetencies stem from the failure of the lawyer to act with competence rather than from lack of technical legal competence. The Profile of Legal Malpractice: A Statistical Study of Determinative Characteristics of Claims Asserted Against Attorneys; (Standing Committee on Lawyers’ Professional Liability of the American Bar Association, 1986) pgs. 7 & 21. (Attributing a vast majority of the errors that attorneys make not to lack of technical knowledge of the law, but to the failure to perform adequately.)

As pointed out in the American Law Institute-American Bar Association Committee on Continuing Professional Education A Model Peer Review System of April 15, 1980, Section 7, Part a, of the Criteria of Attorney Competence, at page 21, “An attorney should be efficient in producing work. Legal efficiency is enhanced by (1) organizing tasks and practice specialization, (2) delegating to those competent to perform and under appropriate controls, (3) effective management of the organization, (4) adequate help, equipment, and facilities, (5) quality control of the legal and office processes and documents, (6) appropriate arrangements with the client on strategy, fees, and costs, (7) time, money, docket, and billing control, (8) internal work review, and (9) avoiding excessive work commitments.” (Also noting that performance competency enhancing skills are not normally part of law school training and are rarely even mentioned in any of the Bar’s current continuing legal education programs.)

It is also instructive to look at the issue of client expectations. Two thousand adults were surveyed by the ABA’s Special Committee to Survey Legal Needs and the American Bar Foundation. The survey studied, among other issues, public experience with lawyers and public opinions and perceptions about lawyers and their work. The results ran counter to some widely held lawyer expectations and indicated that the four most frequently mentioned qualities in selecting a lawyer are: empathy and commitment; integrity; competence; and fairness of fee. More than 50 percent wanted a lawyer to be concerned and interested in their particular problem; 46 percent wanted a lawyer with a reputation for integrity, followed by 42 percent who indicated that the most important factor was the lawyer’s competence. Only 30 percent of participants indicated that their choice of lawyer was based primarily on fairness of the fee.

For those who have utilized an attorney’s services, the survey indicates the following characteristics were important:

• Promptness in taking care of matters;

• Interest and concern about client problem;

• Honesty in dealing with client;

• Explaining fully to client;

• Keeping client informed of progress;

• Paying attention to what the client has to say; and,

• Fair and reasonable fee.

Contrary to what many may think, clients in neither survey listed the final result as a top concern.

There is almost universal agreement that the reputation of the legal profession continues to suffer. Survey after survey demonstrate the public’s dissatisfaction with the legal profession. One response by The Florida Bar to the public’s general dissatisfaction was the creation of the Bar’s Professionalism Center. Yet, the Bar’s professionalism appeal promoting the avoidance of incivility, reducing enmity with fellow practitioners, and enhancing respect for the court system, while certainly noble in mission, does not address the clients’ desire for competent representation in the sense of technical and performance competence.

The Florida Bar’s Law Office Management Assistance Service practice management advisors, through diversionary, disciplinary, and voluntary consultations, have observed that the basic deficiencies which cause many member’s difficulties with their clients and the Bar are not caused by a lack of technical competency or even professionalism. Time-after-time LOMAS advisors rediscover what surveys and studies have revealed about the cause of the majority (54 percent) of Bar disciplinary cases: There remains a lack of understanding within the profession of how to improve performance competency.

Without a broader Bar-wide mandate to improve this definition of “competence,” however, the LOMAS “ounce of prevention” will never eliminate the costly “pound of cure” necessitated by client complaints. Only when a melding of technical competence skills with performance competence skills is achieved will there be a true rendering of “competent” legal services.

Recommendation
Equal emphasis should be placed on educating lawyers about both parts of the competency equation. Proven law firm management skills should be taught to everyone who would proclaim to be a competent lawyer so they can truly function professionally and competently with their clients’ interests foremost in mind. The existing infrastructure of the Bar’s continuing legal education (technical competence) efforts can be easily and economically combined with training in the equally-as-important area of practice management (performance competence) to serve as a sound corollary to the Bar’s current professionalism efforts. In this way, the competency equation can be leveraged to its full potential.

J.R. Phelps is the director of The Florida Bar’s Law Office Management Assistance Service, which is available for on-site consultations and for speaking engagements at local bar meetings. Call (800) 342-8060.

[Revised: 04-16-2014]