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Evaluating the Competence of Lawyers

Published online by Cambridge University Press:  01 July 2024

Douglas E. Rosenthal
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Abstract

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The title states the article's subject: the problems and possibilities of evaluating the competence of lawyers. It attempts to: (1) survey what has been written about the subject, commenting on the strengths and limitations of alternative approaches; (2) suggest those activities of lawyers which most influence the effectiveness of their performance and what competence means as to them; (3) indicate what are the principal problems inhibiting better performance evaluations and some ways to try to deal with these problems; and (4) propose some research tasks which may improve our capability as systematic and relatively objective evaluators.

The literature exhibits approximately five approaches to evaluating lawyer competence. Two are indirect: (1) measurement of competence by a lawyer's training and/or his or her performance on a certification examination and (2) assessment based upon a lawyer's status or reputation. These approaches are of limited value where, as in most present instances, there is no proven relationship between such measures and actual competent performance. The other three approaches focus on performance. The first judges performance in terms of successful and unsuccessful outcomes in advocacy. The second judges performance in terms of the avoidance of negligence. The third involves a more systematic and detailed evaluation of the ways lawyers carry out certain activities central to the services they offer. The article suggests how this last approach can be most effectively developed. In spite of the formidable problems raised by attempts to evaluate lawyers, the author is optimistic that such evaluation is possible and can be productive.

Type
Research Article
Information
Law & Society Review , Volume 11 , Issue 2: Delivery of Legal Services , Fall 1976 , pp. 257 - 285
Copyright
Copyright © 1977 by the Law and Society Association.

Footnotes

These views are personal and do not represent an official position of the Department of Justice. My thanks for their comments on an earlier draft to Herb Kaufman, Sandy Muir, Erica Rosenthal, Jay Katz, Louis Brown, Boris Bittker, Leona Vogt, and Thomas Shaffer.

References

1. Hereinafter referred to as “Code.”

2. The effectiveness of legal institutions is a subject directly addressed by Rick J. Carlson, infra. Illustrative of the institutional evaluation is Brakel (1974).

3. Hereinafter referred to as “Peterson Study.”

4. Parenthetically, the Peterson Study found no relationship between competent performance and the then-administered medical college aptitude test (1956:144).

5. While the first two criteria are appropriate, I doubt that time spent on a matter has any necessary relationship to competence. It fails to account for efficiencies associated with experience. It should also be noted that client satisfaction was not assessed.

6. The classic illustration of this is Lucas v. Hamm, 364 P.2d 685 (1961), cert. denied, 368 U.S. 987 (1962) (no liability for ignoring the rule against perpetuities in drafting a will). A hopeful indication that times are changing is a recent severe limitation of the Lucas case by the California Supreme Court in Smith v. Lewis, 530 P.2d 589 (1975) (liability for negotiating a property settlement in a contested divorce, ignoring a community property claim to vested pension rights).

7. The right, under the First Amendment of the Constitution, to compile and publish a consumer's directory containing representative fees and other relevant information about cooperating attorneys in one Virginia county is currently in litigation. Consumers Union of United States, Inc. et al. v. American Bar Association, et al Civil Action No. 75-0105-R (E.D. Va.). See Plaintiff's Opening Brief on the Merits, filed August 15, 1975.

8. I am grateful to Lester Brickman for the information that no grievance committee has ever been reported to have disciplined an attorney error of commission, so far as diligent research can discover. See also Marks and Cathcart, 1974:210.

9. 86 Stat. 1329-1493 (1972) (codified in segments of 42 U.S.C. § 201-4918 (Supp. II, 1972)).

10. The Legal Services Corporation Act of 1974 (42 U.S.C. § 2996 et seq.).

11. Other poverty legal services evaluations include Marks et al., 1974; Hofeller, 1970; and Champagne, 1976.

12. I reluctantly propose yet another taxonomy. When they lack not only the answers, but very likely the right questions as well, scholars resort to classification. By way of apology, this taxonomy is tentative and ready to be discarded when we have finished with it. I find it somewhat simpler and more serviceable than similar and largely complementary descriptions by others of what lawyers do. See, e.g., Johnstone and Hopson (1967); Brown and Dauer (1975).

13. This approach is illustrated by the following statement made in a pamphlet issued by the Wisconsin Bar Association (1965):

Get at the client's problem immediately and stick to it. Don't bother to explain the reasoning processes by which you arrive at your advice. The client expects you to be the expert. …The client will feel better and more secure if told in simple straightforward language what to do and how to do it, without an explanation of how you reached your conclusions.

14. Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (patient not told that surgery raised one percent possibility of paralysis).

15. Burgraf v. Byrnes, 94 Minn. 418, 103 N.W. 215 (1905).

16. On the concept of informed consent generally, see Katz (1972). Some colleagues whose judgment I respect doubt that judges who were once lawyers themselves will apply either an informed consent or a general negligence standard to lawyers as strict as the ones they are beginning to apply to doctors. Perhaps I am overly optimistic, but I wonder how long it will be possible to maintain an irreconcilable double standard. Medical experience seems generally quite relevant to the practice of law. There are the same kinds of uncertainty; the problem-solving process is very similar; except for the lack of a legal parallel to the predominant role of hospitals in medicine, the institutional arrangements are comparable. While bad lawyers rarely kill (now that capital punishment is in decline), they can do a great deal of mischief to their clients. Recently, the Supreme Court of Washington held defendant doctors negligent as a matter of law for failing to test for glaucoma when conducting a routine ophthalmic examination of a youthful patient. The court so held notwithstanding uncontroverted evidence that the incidence of glaucoma in persons under 40 in the United States is approximately 1 in 25,000. They stressed that the test is simple, inexpensive, harmless, painless, and certain. Helling v. Carey, 83 Wash. 2d 514,519 P.2d 981 (En Bane, 1974). Presumably, there would have been no finding of negligence if the patient had waived her right to have the test by informed consent. I do not see how such a holding can be reconciled with, say, Lucas v. Hamm (supra, note 6). Perhaps the only significant difference between law and medicine is this double standard in the minds of some lawyers and judges.

17. A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. Advice of a lawyer to his client need not be confined to purely legal considerations. A lawyer should advise his client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective viewpoint. In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible. He may emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions. In the final analysis, however, the lawyer should always remember that the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client and not for himself. In the event that the client in a nonadjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment. [Footnotes omitted.]

18. One book which stresses the importance of counseling skills for lawyers is Freeman and Weihofen (1970).

19. Another who has made the same plea is Brakel (1974).

20. See the recent case of first impression, Richards of Rockford, Inc. v. Pacific Gas & Electric Company et al., No. C-74-0578-CBR; (N.D. California), Memorandum of Opinion, Renfrew, D.J. (May 20,1976). In the course of discovery, plaintiff moved to compel a third party social scientist to testify concerning certain confidential scholarly interviews with defendant's employees. The court denied the motion in a closely reasoned opinion which may be the first step in revising existing law.

21. This lack of voluntariness, and not the invasion of the jury room, is what I find offensive in the Chicago Jury Project. That research program and its aftermath is presented in Katz (1972:67).

22. Estimate, not for attribution, provided by a former senior OEO official.

23. An in-progress study by the National Association of Insurance Commissioners (New York Times, May 10, 1976) indicates that the more highly trained (though not necessarily more competent) physicians are more frequently subjected to medical malpractice suits, than their less well-trained colleagues.

24. Peterson et al., 1956:107. The pieces of equipment are: microscope, clinical centrifuge, electrocardiograph, BMR machine, and photoelectric colorimeter. Technological advances would probably require the periodic updating of measures such as this.