Washington Lawyer - January/February 2022 - 48

A SLICE OF WRY
In Competence We Trust
By Paul Kiernan
C
ompetence is simultaneously
a requirement and an insult.
The first sentence of Rule 1.1
of the ABA Model Rules of
Professional Conduct states: " A
lawyer shall provide competent
representation to a client. " That
competence " requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary
for the representation. " Being competent
is literally the first thing that
lawyers are required to be.
You would think that lawyers would be highlighting
how they sprint through this competence
tape. But stop and consider whether you
would like to be the subject of this exchange:
Q: Is he a good lawyer?
A: He's competent.
Ouch. Not exactly the stuff of billboards or
NPR sponsorship spots: " When the lawyer you
need must be competent, call Goode & Nuff
@ 1-800-ITS-OKAY. " Or " We fight for you!
Competently! " So even though competence is
a requirement to be a lawyer, it will be a long
time before the American Lawyer hands out an
award for Competent M&A Lawyer of the Year.
How did competence acquire that backhanded
feel? Maybe in an age when a business needs
to fight to stand out, competent just doesn't
cut it as a distinguishing feature. After all, it is
only a foundational requirement.
In the old days, when lawyers couldn't trumpet
their wares through advertising, the profession
discussed excellent lawyers by calling them
" distinguished " or " renowned. " This lawyer was
" well-known, " while that lawyer was a " real
find. " Once in a while, a lawyer would be
labeled a " legend, " which of course precluded
any real discussion of the actual skills of the
person bearing the legend " legend. "
These days lawyers are rated on apps and given
reviews on Yelp. I think you can get odds on
lawyers through DraftKings. Attorneys seek
input from the marketplace about how they
are perceived. Firms spend much time and
scads of money to respond to surveys and
questionnaires and ranking companies - all so
that the firms are not left clinging to " competent "
as their logo. Whole firms are elevated as
Most Effective, or Fiercest Advocates, or, my
favorite: The Law Firm You Really Don't Want to
Face on This Case. Have You Seen the Definitions
Section for Their Discovery Requests?
Sheesh!
Let's agree to rescue
" competence " from its
current reputation.
A whole industry has grown around identifying
lawyers who are " best " or " super " or " leading. "
You always want to be a Who's Who and not a
Who's That? (Full disclosure: In the 2017 edition
of RateMyLawyer, I was voted Least Likely to Be
Voted Most Likely.)
To be sure, no one wants to be described as
" not competent. " But maybe we can acknowledge
that there are many lawyers who are best
described as " competent " and probably not
much more. They do their job, answer their
phones, don't miss deadlines, win their fair
share of cases, respect their clients and their
colleagues, spell-check their documents, citecheck
their briefs, and don't bump into the
48 WASHINGTON LAWYER * JANUARY/FEBRUARY 2022
furniture. That's not so bad. Betcha their clients
are happy with that.
To paraphrase Kermit the Frog, it's not easy
being competent. Be proud that you have
gained enough skill and have worked hard
enough that people know you are competent
at your job. Let's agree to rescue " competence "
from its current reputation as being the equivalent
of substandard in some way or even
mediocre.
I have to pause on the term " mediocre " to
acknowledge one of the great champions of
mediocrity in the law, former senator Roman
Hruska of Nebraska. In March 1970, the Senate
was considering the nomination of Fifth Circuit
Judge G. Harrold Carswell to the U.S. Supreme
Court seat vacated by Abe Fortas. President
Nixon's first nominee, Clement Haynsworth,
had been rejected. Nixon put forth Carswell, of
whom Senator George McGovern said, " I find
his record to be distinguished by two qualities:
racism and mediocrity. " Senator Hruska took up
this second criticism with the immortal riposte:
" Even if he were mediocre, there are a lot of
mediocre judges and people and lawyers. They
are entitled to a little representation, aren't
they, and a little chance? We can't have all
Brandeises and Frankfurters and Cardozos. "
I am not making that up.
And while we're at the business of rescuing
competence, maybe lawyers should also be
proud of their competency - meaning the
ability to understand problems or the ability to
stand trial. Again, seems kind of basic to the
whole professional services field that you have
to have the ability to comprehend problems
rationally or to participate in your own defense
at trial. Come to think of it, though, I have seen
some recent examples of licensed (at last
check) attorneys in public life who maybe don't
clear even that competency bar. Because of
their inability to comprehend legal problems
rationally, they may wind up having to stand
trial. Hope they get competent counsel.
Washington Lawyer - January/February 2022

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