It is a poorly kept secret in the legal profession that some lawyers are much better than other lawyers. Marketing would have you believe that the lawyers at large firms are better than lawyers at smaller firms, which is sometimes true and sometimes not true, and belies the fact that incompetence can hide in a crowd. Pity the poor clients who have to try to figure out how to choose the best lawyer to represent them based on who has the biggest marketing budget and the best marketing consultant.
It is the responsibility of the Law Society of Ontario to regulate lawyers to protect the public.
Throughout my time practicing law, I used to say that the Law Society would turf a lawyer out of the profession if they caught the lawyer stealing five cents from his or her trust account, which is as it should be. But I also used to say that a lawyer could be honest but completely incompetent and the Law Society would do nothing. I came to this conclusion based on two things.
First, I ran across a large number of incompetent lawyers in my 40 years of practice. Second, the Law Society publishes a weekly report of disciplinary proceedings against lawyers and has been doing so going back to time immemorial. Every week of every year there seem to be at least two or three lawyers in trouble, mostly for trust account violations, failing to file reports with the Law Society, or failing to communicate with their clients.
However, I can honestly say that I do not remember reading a single case in 40 years where the lawyer got in trouble with the Law Society simply for not knowing the law, drafting documents poorly, making terrible arguments in court, or otherwise being a really bad lawyer. Of course, that is not to say that lawyers are not being sued every day for making mistakes, just that no matter how many mistakes they make, it does not seem to affect their right to continue to practice law.
Now, some might argue that the reason that you do not see the Law Society taking steps against lawyers for bad lawyering, is that there are not very many bad lawyers. Although not every claim made against a lawyer is valid, it interesting to note that in 2020 there were 2,768 reported claims made against lawyers in Ontario. In 2019 the number was 3,121. That added up to 93 claims per thousand lawyers in 2020 and 106 claims per thousand lawyers in 2019. These are only the claims in respect of which clients figured out that they had a reason to complain and actually commenced legal proceedings to address their complaint. One can only imagine what the number of actual mistakes was, let alone the number of instances of lawyers just not doing an adequate job for a client. Let’s not even talk about failures to provide great customer service.
So how many lawyers are incompetent? That is a difficult question to answer.
To start with, you need a definition of competence. The Law Society’s Rules of Professional Conduct provide a long definition which includes the type of things which you would expect, such as knowing the law and legal procedures, being capable of determining facts, identifying issues, advising clients on courses of action, using legal research and analysis where required, writing, drafting, negotiating, advocating, and problem-solving. All of this is, of course, very subjective, and frankly would constitute only the minimum standards for me if I were to be looking to hire a lawyer for anything other than the most routine matter. For anything important, I would not be looking for a competent lawyer, I would be looking for a great lawyer.
Here is my definition of a great lawyer: “A great lawyer is one whom I, knowing the legal profession, would hire to handle a really important matter for myself or for a close family member.”
Using this definition, I estimate that about 15% of the lawyers that I ran into were great lawyers. I expect that others would put the number higher than that, but I would be surprised if anyone in the profession would put it at higher than 30%.
It is entirely possible that I am too harsh a judge of other lawyers or that the sample, being lawyers who I ran across, is not representative of the profession. Whether I am right or wrong in pegging the percentage of great lawyers at 15% does not matter (although I would mention in passing that I am quite sure that I am right.)
The real question is, assuming that there is some merit to my argument that there are a lot of lawyers out there who are not so great, what protection is there for clients seeking to hire a great lawyer, or for that matter, even a competent lawyer?
It is certainly not the Law Society, which has its hands full dealing with the lawyers who dip into their trust account or completely ignore their clients. (On another day we can discuss the Law Society’s mandatory education programs for lawyers and whether they make any difference. For today I would just say that I haven’t seen much improvement in the quality of lawyers since those programs came into effect.)
Unlike the regulatory body for accountants in Ontario, the Law Society does not conduct practice reviews to ensure that their members are maintaining certain standards (although they do conduct spot audits to check those trust accounts). Unlike certain medical regulatory bodies in the United States, the Law Society does not require their members to take exams to requalify after a certain period of time.
To make matters worse, lawyers are free to practice in any area of law in which they consider themselves competent to practice. So, for example, after practicing business law for 40 years, I could have decided to take on a condominium project, and nobody would have stopped me from doing that. I sometimes wondered if anyone would have stopped me from taking on a murder trial.
So, if it is not the Law Society’s job to make sure that your lawyer is competent, let alone great, whose job is it?
Unfortunately, it is the client’s job, just as it is the customer’s job to read the Google reviews on a new refrigerator before determining which model to buy (although at least a refrigerator usually comes with a warranty.)
All of this brings me full circle to the point made at the outset: Pity the poor client who has to determine which lawyer to hire.
After 40 years of practice, what advice can I give to that poor client?
At this point my editor insisted that I change the original ending to this article. I was going to say: “Not much, it is a crap shoot and if you want any certainty, you are pretty much screwed”.
However, my editor said that this ending, while realistic, would not be that helpful and insisted that I add the following suggestions:
- If possible, find the smartest people who you know who regularly hire lawyers in the area of practice that is relevant to you and ask for referrals;
- If that is not possible (for example, with the exception of Ross on Friends, most people do not hire family lawyers that often), try to obtain referrals from knowledgeable clients or from lawyers who regularly refer to other lawyers in a particular area of practice;
- Check the Law Society’s website to see if the lawyer has a discipline record;
- Interview several lawyers before choosing one, and ask about how your matter will be handled; and
- If, having hired a lawyer you start to get a bad feeling about how things are going, think seriously about moving on.
And finally, if you do find a great lawyer (and there a few of them out there), stick with them. I was once hired by a new client who explained that he had used a great lawyer in Scarborough for many years, but now that he had moved his business to Mississauga where I practiced, he had decided to hire a local lawyer which he thought would be more convenient for him. I happily accepted the business, but I thought that he was taking a big risk by moving his business from someone he respected and trusted to an unknown, just to save some travel time.