Competency – It’s Required of All of Us
My wife and I recently managed to close on a new house in the midst of the hyper-competitive Raleigh housing market. Actually finding a house that we could make an offer on before someone else swooped in with an all-cash offer or ridiculously short closing felt a little like an episode of HGTV’s House Hunters combined with the worst of the Hunger Games. We also successfully sold the house we had lived in for ten years without using a realtor, which meant figuring out the required disclosures and other quasi-legal things on our own.
While neither buying nor selling was painless, both processes were made a lot more manageable with help and good advice from a long-time friend and local residential real estate lawyer (shout out to Elizabeth West Mullen at Midtown Property Law). Watching Elizabeth work through a couple of issues – and admittedly asking some very naïve sounding questions – made me think about how our practices and daily experiences as lawyers are very different despite having graduated with law degrees from the same law school and having taken the same NC Bar Exam.
After just about ten years of practice, I consider myself a pretty good lawyer in the areas I have chosen to practice. For example, when someone calls me about a ransomware attack that has just taken down their company systems, I know which outside experts to engage, how to protect privilege while hiring those folks, and which laws might be applicable to the situation. But, throw me into the middle of a residential real estate closing (or pretty much any other type of deal work) that really needs to get signed by the end of the day and you might as well have hired my six-year-old son. I certainly would not consider myself competent to handle that type of matter on my own on a short deadline.
And, of course, competency is expected and required of each of us each time we undertake a representation. Rule 1.1 of the NC Rules of Professional Conduct tells us that we “shall not handle a legal matter” that we know or should know we are “not competent to handle without associating with a lawyer who is competent to handle the matter.” What does it mean to be competent – especially as a young lawyer? Rule 1.1 tries to answer that question: “Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” That is a little vague for my liking, but the comments to Rule 1.1 help elaborate somewhat.
The comments explain that competency is situational. Factors to consider include the “complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter” and whether you can associate or consult with someone who is more seasoned in that area. Rule 1.1, Comment 1. And, while the comments to Rule 1.1 observe that in some instances “[a] newly admitted lawyer can be as competent as a practitioner with long experience,” Comment 2, they also require us to “keep abreast of changes in the law and its practice [and] engage in continuing study and education,” Comment 8.
Clearly then three years of law school and a passing score on the bar exam do not give us the legal knowledge and skill necessary to be competent to handle every type of legal matter right out of the gate. Nor do those accomplishments make us competent to handle all matters for all time. The increasing focus on specialization, the move away from generalist practices, and the instant “answer” culture that our reliance on Google and devices with constant Internet access only serve to exacerbate the challenge of achieving situational competency as a young lawyer.
So how do we achieve competency in a particular area? I think we work toward competency in three main ways:
(1) post-law school study and self-education, including, but not limited to, keeping abreast of new developments in the law through CLE and independent research and reading; (2) mentoring and advice from more experienced and seasoned attorneys; and (3) “on-the-job” training and firsthand experience.
The NCBA excels in providing its members with a plethora of relevant and well-developed CLE offerings and non-CLE educational programs that can help each of us achieve and maintain competency in our chosen areas of practice. These offerings include free access to up to 12 hours of quality On-Demand CLE annually through the Expert Series program.
The Expert Series is taught by carefully selected and experienced practitioners. The topics covered offer a great way to learn about developments in a particular area of the law. For example, the October 2021 offering taught by NC Business Court Judge Mike Robinson and my partner Eric David provided an excellent overview of issues involving the collection and use of and likely disputes arising from electronically stored information in complex litigation.
Additionally, almost all of the NCBA Sections offer great substantive CLE programing throughout the year. Just in the month of November there are full-day CLE programs being put on by the Administrative Law, Government & Public Sector, Bankruptcy, and Military and Veterans Law Sections.
Moving past the CLE offerings, many of our sections and divisions put on great educational programing through lunch-and-learn type events. Close to home, the YLD Section Spotlight programs provide opportunities for our members to learn from and ask questions of experienced practitioners in the various NCBA Sections. Just in the month of November we held two great Section Spotlight programs.
The first was held in conjunction with the Litigation Section and included hearing from Magistrate Judge David C. Keesler regarding the role of magistrate judges in federal litigation. Judge Keesler also provided useful tips to young lawyers heading to court.
The second Section Spotlight in November was held in conjunction with the Privacy and Data Security Section and included different perspectives – plaintiffs’ attorney, in-house counsel and outside counsel/defense – from attorneys practicing in that emerging area of the law. The event culminated with the panel walking participants through a data breach event at a very high level. Upcoming events include programming in conjunction with the Bankruptcy, Corporate Counsel and Education Law Sections.
Becoming involved in a Section also provides a great opportunity to building mentoring relationships with other practitioners in your chosen field of law. While it may not be appropriate to share the specifics of a particular representation with a mentor outside of your firm or other legal employer, I have found that some of the best advice when dealing with a particularly knotty matter can come from an outside perspective who only knows the basics of the situation. Section relationships are great for creating the bonds that make it possible to pick up the phone and call someone for a second opinion or strategy check.
While the NCBA cannot provide on-the-job training in every area of the law, our members, including our young lawyer members, are able to gain practical experience through the various pro bono programs that the YLD and NC Bar Foundation support and operate. For example, volunteering to counsel a client through the Disaster Legal Services program that is currently active in three western counties as the result of severe flooding from Tropical Storm Fred can give young lawyers practical experience in dealing directly with a client and in a variety of areas of the law including, insurance, construction, and landlord-tenant law. Similarly, participating in the Wills for Heroes program might give a young lawyer interested in adding estate planning to their repertoire an opportunity to learn that area with supervision from more experienced volunteers.
It is a unique and somewhat daunting part of our profession that the decision of when one has reached a level of competency sufficient to handle a matter solo is left to each of us to make on our own. That power to make the call for when we are ready puts great responsibility in each of our hands. Take advantage of the tools that are made available to you as a NCBA member to be the best prepared and professionally competent lawyer you can be – anything less falls short of the first and primary rule for the practice of law in our state and runs the risk of undermining the public trust placed in our legal system.
Will Quick is 2021-22 chair of the North Carolina Bar Association Young Lawyers Division.