It’s Time to Reconsider “Competency”

  • October 30, 2021
  • Joel Miller

Now that we have a pilot project for Binding Judicial Dispute Resolution to provide a “streamlined” and “less formal” process for dealing with “less complex” family cases without such things as the rule of evidence, non-party witnesses, and cross examination, it’s time to ask if our rules for competency require more nuance.

It’s not easy being a competent lawyer in Ontario. Nor should it be. But it shouldn’t be as complex as it is either.

Rule 3.1-1 of our Rules of Professional Conduct for Competency, and the same Rule in the CBA’s Model Code of Professional Conduct, has 11 subsections, one of which has 8 sub-sub sections. It consists of 271 words in 27 numbered paragraphs, almost all of which have multiple obligations. Rule 1.1 of the American Bar Association Model Rules of Professional Conduct for Competency, on the other hand, has 24 words in 1 paragraph. Our Commentary has 1,313 words and 37 paragraphs. Theirs has 712 words and 11 paragraphs. It takes us more than 10 times as long to define the same thing as the Americans, and almost twice as long to discuss it. This is a case where the longer the definition the more it serves the profession than the public.

The problem with our Rule is that whatever sense it makes, makes sense primarily for the cases at the complex end of the family law case continuum but not for those at the “less complex” end. Until recently Ontario’s understanding of the Family Justice System had held fast to the belief that there was no “continuum”. That all family cases had to be treated the same so far as the rules of procedure, evidence, and Professional Conduct are concerned. But no more. As set out in the previous Article Ontario’s Binding Judicial Dispute Resolution Pilot Project – Crossing the Rubicon or the Camel’s Nose? Does it make a difference? we now have a Binding JDR pilot project put in place by Ontario’s Superior Court Justices that upends that thinking. (See Chief Justice Morawetz’ Practice advisory.)