Lawyer Competence on the Professional Radar

The law has long imposed upon lawyers a duty of competence in the delivery of legal services. Indeed, the principal barrier to entering the legal profession (and indeed other professions) targets competence, substantiated by academic and practical study over a period of years. This special skill and learning barrier to entry makes it legitimate for the law (and clients) to expect a commensurate standard of competence.

For many years, the foregoing was simply assumed, safe in the belief that the shadow of tortious liability would propel lawyers to strive for and maintain competence. Yet within the last 30 years or so, the question of lawyer competence has traversed beyond a characterisation purely in terms of legal obligation into one of professional duty. For instance, under the caption ‘other fundamental ethical duties’, the recent Legal Profession (Solicitors’ Conduct) Rules 2020 list a duty to ‘deliver legal services competently’.1 The aforementioned time frame has witnessed the rise of mandatory continuing legal education, driven in a substantial way (albeit at least partly as a risk management exercise) by a belief that a lawyer’s exposure thereto will improve (or at least sustain) competence.

Questions of competence have also entered the professional sphere via the development of statutory concepts of ‘misconduct’. The entire gist of ‘unsatisfactory professional conduct’ under statute is competence focused,2 and one limb of statutory ‘professional misconduct’ similarly targets matters of lawyer (in)competence.3 That the ‘common law’ recognised only ‘professional misconduct’ — confined to what is ‘disgraceful or dishonourable’4 — and no lesser form of actionable misconduct, meant that matters of incompetence surfaced only rarely on the disciplinary radar. This remained so even in those jurisdictions that early on adopted a broader statutory concept of misconduct.5

Yet with the professional arena there has proven little effort to probe what is meant by ‘competence’. Though pivotal to public confidence in the profession and the administration of justice, the term lacks any generally accepted meaning. One of the few attempts to identify the indicia of competence, which emanated from a 1980 American Bar Association Discussion Paper, acknowledged that competence is multi-faceted. It is not confined to what may be described as ‘technical’ competence, that is, knowledge of the law and procedure;6 it can, for instance, comprise particular skills, efficiency and effectiveness.

Whatever may fall within ‘competence’ — whether for legal or professional purposes — what is certain is that it is not static. The very nature of the law, and its practice as a professional, dictates that competence expectations can shift. It was not that long ago (1980s–1990s), after all, that Australian law explicitly recognised that lawyers with particular expertise could be exposed to a more stringent tortious standard of care.7

A more recent phenomenon, though, surrounds the impact competence-wise of perhaps the principal hallmark of twenty-first century society, the rise of technology. There is no question that this phenomenon has impacted upon law practice, which relies heavily on communicating, disseminating, storing and accessing information.8 What has been acknowledged, to this end, is that lawyers may require skill development to capitalise on the advantages and guard against the drawbacks of (emerging) technology.9

It is perhaps no surprise, then, that the American Bar Association in 2012 amended its professional rules to make explicit that ‘a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology’.10 Late 2019 saw the Federation of Law Societies of Canada pursue the same initiative, placing under the competence umbrella an expectation that lawyers will ‘develop an understanding of, and ability to use, technology relevant to the nature and area of [their] practice and responsibilities’.11

In so doing, beyond highlighting that the appropriate use of technology is now a core aspect of legal practice, the rules raise the spectre of professional liability for failure by law practices to properly engage therein. In an increasingly globalised legal market, Australian lawyers will hardly prove immune.

Gino Dal Pont
Professor, Faculty of Law
University of Tasmania

• Legal Profession (Solicitors’ Conduct) Rules 2020 (Tas) r 8(c).
• Legal Profession Act 2007 (WA) s 420.
• Ibid s 421(1)(a).
• Pursuant to the formulation espoused in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.
• See G E Dal Pont, Lawyer Discipline, LexisNexis Butterworths, 2020, pp 31–33.
• ABA-ALI Committee on Continuing Professional Education Model Peer Review System 11 (Discussion Draft, 15 April 1980).
• A leading statement is that of the Full Federal Court in Yates Property Corporation v Boland (1998) 85 FCR 84 at 105 (revd on appeal but without casting doubt on this point: Boland v Yates Property Corp Pty Ltd (1999) 167 ALR 575).
• See R Susskind, Tomorrow’s Lawyers: An Introduction to Your Future, 2nd ed, OUP, 2017.
• See, for example, M Legg, ‘New Skills for Lawyers: Responding to Technology and Practice Developments’ [2018] UNSWLRS 51.
• Model Rules of Professional Conduct, r 1.1, cmt [8].
• Model Code of Professional Conduct, r 3.1-2, cmt [4A].