This assumption is inherently flawed.
First, it is assumed that if one graduates from law school and passes the bar that they are competent to practice law. In theory, law school teaches law students to think like a lawyer. In practice, law school does not teach lawyers how to practice law. Therefore, not all lawyers are competent to practice law.
Second, I speak from experience in law school education and my reasons for not pursuing a law degree go with the belief that law school shortchanges law students. One of the problems I saw as a nonlawyering student were the lack of individual feedback and interaction. Another problem is the combative classroom environment. All these are counter to an effective education.
Third, from my experience in paralegal education, we got the practical overall training lawyers need to be competent in their profession. Our ABA accredited institution focused sufficient attention on practical skills such as interviewing, counseling, negotiation, drafting, and problem solving. And all this we received as paralegals. These are the skills lawyers need to practice law competently, which they don't get in a typical law school education.
As Fred Zacharias nicely put it in his Arizona Law Review piece, section on Fictions of Symmetry, "All Lawyers are Competent" --
Consider first the unspoken presumption that lawyers are competent, perhaps
even equally competent. This finds its way into numerous code provisions, not the
least of which is the competence rule itself, Model Rule 1.1.42 Rule 1.1 states that
lawyers unfamiliar with particular areas of law may undertake representation
involving those fields if they can make themselves competent.43 The primary reason
for this concession is obvious: it enables lawyers, particularly inexperienced lawyers, to expand their practices. The rule is justified on the basis that lawyers are trained in law school to think like lawyers and that, except in highly specialized fields, lawyers can teach themselves to serve clients as well as the experts do.
No one truly believes this fiction. Specialists undeniably have an advantage
over novices. Bringing a new lawyer up to speed, even if possible, adds to a client’s
expense.
The assumption of equal competence shows up in more particularized
provisions of the ethics codes as well. In many situations, for example, the conflict-ofinterest rules forbid clients to retain their lawyer of choice even when the clients are prepared to waive a conflict or to accept a situation in which a potential conflict may arise. Clients often are forbidden to acquire joint representation. They may not hire an especially good but expensive lawyer by paying the lawyer through assignment of media rights.Other examples abound. The code drafters’ assumption is that the clients are wrong in believing that retaining the particular lawyer will lead to better representation; other lawyers are available and at least close enough in competence that clients should not be permitted to risk conflict-laden representation.
The questionable assumption that all lawyers are equally competent also underlies code provisions that constrain the ability of lawyers to represent clients on a
limited basis. These provisions rely on the faulty premise that clients always are
better off receiving full representation from cheaper (but presumably competent or
able) lawyers. This approach skews the quality of representation some clients
receive and produces other perverse economic effects. And it conflicts with the
position of substantive law; contract, tort, and malpractice standards insulate from
civil liability lawyers who expressly limit their obligations to clients.51 This
inconsistency between the professional standards and the substantive law ultimately
may induce code drafters to confront the counter-factual nature of their assumptions."
To view law review article click here, you may find this piece on Page 838-840
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