1975, December, Pg. 2331. Minimum Standards: A Report.

4 Colo.Law. 2331

Colorado Lawyer

1975.

1975, December, Pg. 2331.

Minimum Standards: A Report

2331Vol. 4, No. 12, Pg. 2331Minimum Standards: A Reportfrom the Committee on Minimum Standards of Professional CompetenceFor a profession to survive and prosper in society, it must adhere to its fundamental purposes of organization, learning and public service. Service is dependent upon the degree of learning acquired by the members of the professional organization. It is the inherent responsibility of the organization to require that those who are recognized as members are actually pursuing a learned art in a spirit of public service. When the competence of a member of a particular profession is drawn into question, the entire profession suffers. When the competence of the profession is drawn into question because of the failings of its members, the ability of that profession to render its public service is minimized. Indeed, it is possible for the entire profession to become irrelevant to the needs of society. Thus, as a matter of enlightened self-interest it is essential for any profession to maintain a standard of competence which will at least inspire public confidence and provide the opportunity for the profession to practice its learned art.

The need for programs to maintain and improve the competence and integrity of the legal profession has become more apparent in recent years. As our society becomes more complex at an ever-increasing rate, the courts and legislatures respond with sophisticated, lengthy complex statutes which require constant and thorough study by lawyers who are attempting to serve their clients. More and more lawyers are conscientiously trying to understand the changes as they occur as is evidenced by the increasing enrollment at continuing legal education courses in Colorado and throughout the country. However, at least three areas require action: (a) the relatively poor performance by many attorneys who ignore continuing legal education, (b) the recent well-publicized apparent disregard or lack of understanding of appropriate ethical standards by a small number of attorneys, and (c) the lack of basic legal skills of newly-admitted lawyers and lawyers who have not engaged in active practice for a number of years.

Numerous other professional associations have adopted minimum requirements of continuing education as a condition of remaining members of the association or continuing to practice, such as the Colorado Dental Association and the Colorado Society of Certified Public Accountants. Minnesota, Wisconsin and Iowa require a minimum number of hours of continuing legal education as a condition to the right to practice law. The Supreme Courts of Kansas and New Mexico are considering the imposition of such a requirement. Other states are studying the problem. An outline comparing the Iowa, Minnesota and Wisconsin plans is attached to this report. The American Bar Association and the bar associations of several states have recognized

2332the necessity for programs designed to establish guidelines or criteria for determining continuing professional competence.

With the adoption of the Code of Professional Responsibility by the American Bar Association in July of 1969 and by the Supreme Court of the State of Colorado in August of 1970, professional incompetence became clearly a matter subject to discipline. DR 6-101 "Failing to Act Competently" provides: A. A lawyer shall not:

1. Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.

2. Handle a legal matter without preparation adequate in the circumstances.

3. Neglect a legal matter entrusted to him.

It is, therefore, necessary that the legal profession continually maintain and enforce minimum standards of performance for its own members in order that those members may continue to enjoy and be worthy of professional status. The alternative, in the minds of some at least, is governmental regulation.

The problem is how to establish acceptable programs which will assure to the public and to the profession the continuing professional competence of the members of that profession. Rules and procedures already exist for the discipline of members of the profession who violate minimum standards. It is not the purpose of this committee to recommend the imposition of penalties, but rather to improve the standards of legal practice in Colorado. Recent activities of the Colorado Bar Association with respect to establishment of a pilot program for certification of specialists has, as one of its purposes or collateral effects, improvement of competence in specialized areas and methods of certification of such competence. If such programs as may be ultimately developed in this area are enthusiastically embraced by the members of the profession, they may provide methods and procedures for determination of continuing competence, at least in the areas of defined specialty.

Another method which offers promise of acceptability and feasibility is in the area of mandatory continuing legal education. Continuing professional competence requires, at a minimum, the maintenance of a level of capability for delivery of legal services entitling one to engage in the continuing practice of the profession and to charge fair and reasonable compensation therefor. Although professional competence includes maintenance of adequate current knowledge, such continuing knowledge cannot, by itself, be equated with professional competence. Competence must be distinguished but not separated from professional responsibility or integrity. The Committee recognizes that it is most difficult to attempt to impose or enforce a requirement of continued competence because of the intangible nature thereof. Nevertheless, the Committee believes that it is worthwhile as an important part of the effort to maintain competence of members of the profession to establish the following program of minimum requirements of continuing legal education.

CORRELATING EDUCATION AND COMPETENCE

It stands conceded that an effort to attain and assure minimum standards of professional competence assumes much in proposing that an educational requirement will fulfill the objective. There is certainly no universal acceptance of the equation: education = competence.

However, an imperfect world can at best produce hypotheses, partial answers and tangential efforts. Accordingly, an exercise of judgment has led to the conclusion that the most likely threshold effort to assure a minimum level of competence is an educational one. As man enters into heaven he may be presented with the answer, or a better one. In the meantime, heaven must wait for we who live, and we in turn must face

2333and answer problems. Consequently---the education requirement. It is an admittedly imperfect answer to an extremely complex problem with almost no conceded measurement tool but it is a good faith beginning on a broad problem of grave social significance.

GOVERNING AUTHORITY AND STRUCTURE

The determination of the source of authority for promulgation of the educational requirement is delimited by constitutional consideration. In Gibson v. Barryhill,(fn1) the United States Supreme Court held that revocation of optometry licenses by a board consisting entirely of practicing optometrists, having, therefore, a pecuniary interest in the proceedings, was violative of the due process clause because, ipso facto, the board could not provide a fair hearing. Since those with a substantial pecuniary interest in legal proceedings should not adjudicate matters effecting that interest, a disinterested adjudicative body should assert ultimate authority over the maintenance and enforcement of the educational requirement. By statute, the justices of the Colorado Supreme Court are prohibited from practicing law. Thus, the members of the Court have no pecuniary interest in enforcing the requirement. In fact, ultimate responsibility for the regulation and licensing of the bar has always been the exclusive province of the Supreme Court. Accordingly, the Committee recommends that the Supreme Court promulgate this educational requirement and supervise its implementation by the...