If any lawyer introduces themselves to another, the immediate follow up question is “What sort of law do you practice?” This is because, to a lawyer, the title alone means very little. A lawyer is not defined by their name written on the rolls at Osgoode Hall; rather, we are defined by what we do, what we achieve, and what we offer relative to others.
This is squarely at odds, however, with the public’s perception of a lawyer and what that responsibility entails. The public’s perception towards the practice of law is often governed by television shows like Suits, The Good Wife, or Damages.
To the public, we are seen as general advocates and champions for all causes. Part Athenian orator, part real estate clerk; part English Barrister, part trademark agent; part Clarence Darrow jury litigator, part incorporator of small business. Part constitutional advocate, part drafter of wills. To society, we are thought to be qualified for everything litigious and legal.
Yet at the same time, the public also perceives us as overvalued, useless, and lacking competence for tasks assigned. Sadly, there is great truth to this. In my view, it comes as a product of lawyers’ reluctance to admit the most basic fact of reality that every other profession realizes: we can’t do it all, nor should we.
Despite our technical requirements making us able to do so, as a matter of competence, lawyers must refrain from practicing beyond their scope of practice.
We cannot, for example, do a murder trial one day, and then draft a will with complicated tax implication the following week. We cannot negotiate a messy settlement in family law, only to then turn around and create subsidiary corporations for a construction company.
As a profession, we cannot continue to perpetuate the notion that there is no legal problem too big, small, obscure, or broad for us to competently address. To be fair, many of us self-regulate to ensure we do not go beyond our expertise but this does little to ensure competence is delivered and the public is adequalty protected from unscrupoulous lawyers who do.
Therefore, in the age of hyper-specialization in all areas of professions, we are left with a choice: do we continue to perpetuate the archaic notion of a Lawyer for All Seasons, or do we embrace the model of hyper-specialists who earn varying degrees of recognized competence?
Generality is not a virtue in any market, especially when that generality is creeping closer to what non-qualified members of the public can achieve on their own with the assistance of the internet. We cannot, as individuals, leave our options open in perpetuity to the manner of law we wish to practice or the cases we accept. We either specialize, or we die as a profession.
One way to achieve this is a graduated form of licensing that is forced upon lawyers from the earliest stages.
Law school serves the function of teaching the general principles behind the law and to guide those into the area of specialization they wish to pursue. Once law school is finished, regulatory bodies (like the Law Society of Upper Canada) ought to immediately demand a commitment from its potential licensees on their area of practice by streamlined programs, or articles in the chosen practice area.
Bar exams should not seek to test a uselessly broad knowledge of the law, but rather a highly specialized area of practice. These exams can then continue as one’s practice advances and the practitioner seeks to enhance their specialization and worth.
For example, one could envision examination processes whereby general exams are written for aspects like ethics and practice management. Beyond that, bar exams should be as arduous as they are at present, but far more specialized in relevant practice areas. Once completed successfully, an individual might then become licensed to practice exclusively in criminal, family, estates, tax, business, etc. with a corresponding licensing accreditation (A C1 F1, T1…Licence). From there, licencing in that practice area would continue along the lines of greater and greater specialization (C2, C3…).
Having a sliding scale would serve multiple purposes and benefits including, but not limited to:
- Increased competence of practitioners;
- Greater public satisfaction and fewer complaints;
- Fewer lawsuits for claims of incompetence which would effectively reduce and pro-rate insurance premiums for all lawyers;
- Ongoing incentives for lawyers to advance their practice and continuing education;
- Greater ease for the public to find practitioners in the area of law that they are seeking;
- A decrease in false and misleading advertising by lawyers who claim to be “experts” in multiple areas practice. Instances of non-compliance for offering services that not properly accredited for would be easily prosecuted;
- A greater market value for lawyers as they advance in their skill and become fewer in supply, and therefore higher in demand;
- Inability for lawyers not qualified to practice in areas where they have not proven their level of expertise or competence;
- Inability for government organizations to underpay valued lawyers by ascribing to “lowest bidder” mentality;
- Reduced costs to students who will only have to pay for exams that relate to their practice area;
- Increased revenue for licensing organizations as lawyers advance and have to pay for increasing accreditations;
- Greater lobbying abilities with government who will look towards defined specialists for changes in law and policy;
- Easier selection of suitable jurists and administrative tribunal members based upon accreditations and proven abilities; etc.
Many will look at this in a skeptical manner but the benefits are clear, and far outweigh holding on to the archaic notion of a “lawyer for all seasons”. The changes can be brought in gradually, grandparented, and even suited so that “general practitioner” is itself a specialization (for small communities) in the same way a “family doctor” is in the medical context.
Drastic changes are required if we are to retain control over the profession. Lawyers must come to terms with this predicament if we are to preserve our value. In my view, the only way to do so, is by revitalizing our status as highly specialized professionals.
Trying to hold on to every client that walks though the door will quickly turn into a futile exercise of holding sand if we don’t change. Regaining, formalizing, and enforcing standardized areas of expertise will change the tides.