Haven’t we all been there at one time or another? Stuck in a presentation that we devoutly wished we’d never signed up (or been obliged) to attend? Up till now, all we could do was suffer in silence and wait for a coffee break or the end of the session to voice our regret to the nearest listener. Then Twitter came along.

The quote above is a Twitter entry by Gabe Acevedo, an attendee at LegalTech New York who was sitting in — and livecasting his thoughts about — an online networking session on Tuesday. Suffice to say he wasn’t delighted with the presentation, but what matters for our purposes is that he transmitted his displeasure to more than 150 followers, many of whom re-broadcast these and other negative messages to many thousands more, most of whom weren’t at the conference but all of whom received a pretty negative assessment of the session and its sponsor. Never mind all those paper evaluation forms that conference organizers are always asking you to fill out. Thanks to Twitter, liveblogging, and wireless access, every CLE session in the world is now subject to instant, real-time, uncensored feedback — not just to the event organizers, but to everybody.

As I’ve said before, it’s not just the private practice of law that’s in upheaval, it’s all the industries and offerings connected to it, including  law school, legal publishing, and legal research. It’s now time to add CLE (and its more evolved descendant, Continuing Professional Development) to the list.  Here are three ways in which CLE is likely to be transformed.

Transparency. Conference organizers are starting to invite bloggers to attend their events, presumably in hopes of generating more coverage and publicity; I wonder if they’ve thought through all the ramifications. When  the mainstream legal media covers a CLE, the resulting accounts are either neutral or positive — when was the last time you saw a CLE session ripped by a legal newspaper or magazine? The media outlet and the CLE provider work in symbiosis — one gets content, the other gets publicity — and neither benefits from spoiling that relationship (cf: local cinemas and community newspapers). Bloggers and twitterers usually don’t have those kinds of interests to protect, and as we’ve seen, they feel free to broadcast what they feel in the moment  — lawyer citizen journalism, if you like.

This means that the reputational stakes are now much higher for CLE providers. Sometimes the feedback is very good. A happy attendee can generate positive buzz on an overwhelmingly disproportionate basis, one person improving 1,000 readers’  impressions with every post or tweet. But an unhappy delegate can do the same in the other direction — doing more damage, actually, because bad reviews travel faster and more widely (especially, as is often the case, when those bad reviews are kind of entertaining).

This will place huge pressure on CLE providers — but in the end, I think, in a good way. They’ll never lack for feedback, they’ll know exactly what did and didn’t work, they’ll be heavily motivated to increase the quality of their sessions, and they’ll be able to identify the key influencers in their marketplace. The outcome of this greater transparency should be more responsive CLE providers and better-quality CLE.

Competition. Online CLE has been a win-win for everyone, making continuing legal education accessible to lawyers in small or remote communities who normally can’t afford the time and expense of travelling to an urban center for an in-person c0nference. Plus, online CLEs are usually recorded and made available for later downloading at a lawyer’s convenience. All of this is excellent. But here’s a question: what’s the difference between an online CLE and a podcast?

There’s a growing amount of excellent legal knowledge contained in podcasts downloadable from law firms, law schools, associations and other sources.  If you’re  a lawyer on a budget who needs to keep up with the law, podcasts can be tempting. Moreover, podcast authority Bob Ambrogi confirms that a number of podcasts (including his own) have been approved as satisfying CLE requirements as far back as 2005. This is not to say that your average podcast can compete with your average online CLE for quality of content and depth of commentary. But the gap between them is poised to narrow over the next several years — and even if it doesn’t, a number of lawyer consumers will be content for lesser quality at a much lower price.

But you don’t need to look to podcasts to see burgeoning competition for CLE providers. As Toby Brown of 3 Geeks and a Law Blog pointed out last fall, in a post ominously titled “The Googlization of CLE,” law firms are producing tons of in-house CLE every year for free.  The market is being flooded with CLE, and an eventual outcome of that is the commoditization of many offerings:

[I]n the not-too-distant future, [lawyers] will be getting CLE for free online. And why wouldn’t they? In addition to the obvious cost savings … online CLE gives lawyers the opportunity to take the subject matter they want, when they want it.  … CLE content will likely follow the Google model. Give it away and make money on ads and partnerships. In the end, it’s really a question of who will figure this out first. Large law firms are already there, with them being the content provider and the advertiser.

Unconferencing. The first item above described a threat to CLE’s marketing, the second to its business model. But there’s an even more fundamental challenge rising to meet CLE right now: the nature of a CLE event itself. For as long as practicing lawyers have been coming together to learn from their peers, a roomful of attentive listeners has faced a lecturer and taken notes as the speaker transmitted knowledge through words and visuals. This format has survived the transfer to the Internet — online CLEs still feature one-to-many discourses occasionally interspersed with questions from the audience.  Aside from the absence of exams, it’s largely indistinguishable from law school.

But we’re seeing a trend away from this style of lawyer learning. The standard long-table-podium-and-microphone is looking more like a 20th-century relic when compared to the increasingly popular semi-circle of speakers sitting in comfortable armchairs, taking questions from a moderator or attendees, and conversing with portable mikes. It’s “CLE Meets ‘The View,’” and audiences are finding it engaging and satisfying. But even that’s still a variation on the theme of “I tell you what you need to know.” The more radical direction in which CLE is headed is towards the “unconference” — what Wikipedia calls “a facilitated, participant-driven conference centered around a theme or purpose.”

Unconferences proceed from the premise that there’s as much or more knowledge and wisdom in the crowd of attendees as there is at the podium, and that the key to a really effective learning experience is to let audience members turn around and talk to each other. In the modern spirit of collaboration, it’s many-to-many learning, often organized around focused small-group encounters like workshops from which attendees report back to the larger group. Everyone contributes something and everyone comes away with something. The draw is not the keynote speaker but the other delegates; the organizer’s key value-add is not a lecturer but a facilitator. The classic legal unconference is Matt Homann’s LexThink, next scheduled for St. Louis at the end of March and focusing on innovation in law practice. But I can see this model catching on for more traditional CLE subjects as well.

A lot has been written about how law school has to change, and how our whole approach to training new lawyers needs to be overhauled. But formal legal education in law school is only three years of a lawyer’s career; continuing legal education usually lasts at least ten times longer and arguably is far more important in ensuring lawyers’ competence to practise law.  If law school is in for a serious makeover, what does that say about the upheaval awaiting CLE?

83. The Law Society’s articling program has been an established part of the licensing process for decades. It reflects the transition from the earlier legal education system that was predominantly an apprenticeship system to the university model that replaced it. It has provided students-at-law with an opportunity to experience and learn about the practice of law in a relatively risk free context of supervised law firm placement. In the Law Society’s current licensing process the articling term is 10 months. Candidates may begin articling at any time after the end of the skills and professional responsibility program.

84. Unlike the medical model of education, however, articling is not interwoven into the framework of legal education. There is little direct link between the education candidates receive during law school and the “clinical” component that is articles. The profession has long viewed the articling program as a bridge between the two worlds of education and practice.

Just setting the stage here.

90. [I]ncreased law school enrolments, possible establishment of new law schools, increasing numbers of internationally trained candidates [are] problematic for the articling program…. [I]n a system that appears able to place approximately 1,300 articling students in a stable economy, it is likely that the number of candidates seeking articles in 2009 could be approximately 1,730. This does not reflect additional candidates that would come from any new law schools.

To put that in its proper perspective: in 2001, the number of new applicants for articling positions was just 1,247. The system is being overwhelmed.

97. To assist its consideration of the issues surrounding the articling program, the task force has identified what it believes to be the goals of the program:
a. To provide law school graduates with exposure to certain defined practice skills in a professional environment in a consistent manner across articling positions.
b. To provide law school graduates with exposure to professional responsibility and ethical issues in a professional environment, in a consistent manner across positions.
c. To provide law school graduates with the opportunity to evaluate practice environments for the purposes of subsequent professional life.
d. To fill law school gaps in law students’ development as professionals.
e. To facilitate the transition to sole or small firm practice.

If you didn’t see “hone their QuickLaw skills noting up cases,” “undertake due diligence on reams of paper in a drawn-out discovery process” or “serve a Statement of Claim on an elusive defendant” on that list, it’s probably because the articling process ostensibly should involve these sorts of things only occasionally.

Articling is apprenticing: learning by watching, listening, asking and, most importantly, doing. It’s a superb notion in the legal profession and, in the days when it was working (not within my living memory), it helped cement the law’s reputation for mentoring, collegiality, and generosity of time and spirit towards newcomers.

Taking on an apprentice is a serious task, because you’re assuming responsibility for helping the new recruit learn to do what you do. Some articling principals take the apprenticing responsibility seriously, and I know a number of lawyers who testify enthusiastically about the tremendous training they received during their articling year. But many articling principals don’t, or can’t, do the same.

I don’t think it’s because we’ve become nastier people. I think it’s primarily because articling, in the form laid out above, simply doesn’t fit the business model most law firms use. Law firms – especially the large urban firms that offer most of the articling positions in Ontario – are not genial partnerships where new arrivals are tutored and mentored. They are businesses, they operate in an increasingly rapacious environment, and their compensation and promotion systems don’t reward the development of younger talent.

Most law firms, I think it’s fair to say, don’t even train their associates and junior partners especially well, let alone newly graduated quasi-lawyers. Now, with clients increasingly demanding higher-value performance and partners equally demanding profit-per-partner growth, training and mentoring have largely become optional extras. In most large law firms, new lawyers are worker bees, not apprentices. That simple fact alone makes most of the goals set out in Paragraph 97 unattainable in the current environment.

102. The task force has identified three possible ways to address the issues the articling program is facing. None of the options is new. The 1972 McKinnon Report addressed some of them. Other jurisdictions, particularly in the United Kingdom and Australia, have adopted some of them. Perhaps none of them is without criticism. But the task force is convinced that something must be done beyond exhorting the Law Society to try harder to fund more placements and improve quality. Something more fundamental must be done.

This is, if I may say, an unusually blunt and honest admission of a couple of salient facts: (a) the articling system is not working well (and figures to work less in the near future, given the reasons summarized in paragraph 90) and must be replaced, and (b) each of the suggested options has its flaws too.

I highlight this paragraph because we need to accept that whatever solution the law society eventually accepts is going to be imperfect. The hope is that it will be less imperfect than what we have now. Not exactly a stirring vision, but a dose of reality is always a welcome tonic in this profession.

103. There are three options on which the task force is seeking comment and advice:

a. Continue the program, but make it clear that the Law Society makes no guarantees that candidates will find employment.

I’ll take each of three suggested alternatives in turn. (Addendum: Melissa Kluger notes that Convocation has added the ever-popular fourth option, “consider other options.”) As the report goes on to explain, this option is essentially the status quo, but delivered openly and honestly rather than with reluctance and embarrassment. The truth is that the law society can’t guarantee articling positions now, although it does twist itself in knots trying to place students through cajoling, wheedling and other persuasive methods.

As the task force observes, the articling contract is between a student and a principal; the law society is an interested bystander, but one without any power or standing to intervene. This first option would at least allow the LSUC to address the situation plainly, lose its guilt complex, and abandon any pretence that its mandate of governing the profession in the public interest includes job-hunting services for new graduates.

The task force goes on to note a related stark reality: among those students who don’t obtain articles, certain groups are overrepresented, including aboriginal students, those with disabilities, and francophones, not to mention internationally trained students. If the law society chooses to step back from its current role of equity advocate in articling, “the profession may be increasingly uncomfortable with the consequences,” says the report. Nobody has a good answer to this question yet, but one will have to be found. Still, there’s one more thing that should be noted here in passing.

There are a lot of possible reasons why a newly graduated lawyer can’t find articles. He might, as noted above, be a victim of overt or covert discrimination. She might have difficulties with the standard interview process, upon which so much of the subjective hiring decision rides. He might simply be unlucky — I have a friend who’s now a very successful litigator for a Toronto boutique who was shut out of the articling process at the time. But there is another group that is heavily represented among those who don’t get articles: those who aren’t really all that qualified.

Every graduating class has a bottom X percent who performed poorly compared to their classmates. Their law degree is valid, but their transcript contains a lot of consonants and no vowels. Yes, some very good lawyers didn’t do well in the classroom setting, for a variety of reasons. But as a general rule, if your academic record is poor compared to your compatriots, you won’t get a lot of job offers. That’s the marketplace at work, and it has never been more competitive than it is today.

If the law society chooses this recommendation — and for my money, I think that’s the likeliest outcome — we might be able to more easily accept that one of the things the articling process does is separate the wheat from the chaff, however harsh that might sound. The sooner that reality is discussed openly in the profession, and the quicker it filters back through the law schools and into the pre-law community, the better for all concerned. A law degree is not a license to practice law.

b. Accept that if there is to be an apprenticeship requirement, the Law Society should take responsibility for all candidates having an opportunity to qualify; develop an alternative stream for those unable to find a placement.

This is the most interesting option of the three, and if the law society is feeling sufficiently ambitious, might actually be the one I favour most. It’s based on an Australian model called a Practical Legal Training Course (PLTC), an alternative to articling for those who can’t land a clerkship with an employer.

In Victoria, for instance, the PLTC runs 31 weeks, 9 to 5 weekdays, and provides students with the requisite knowledge, skills and ethics training that they would (supposedly) receive were they articling. An added bonus is that the course can be taken online, a huge benefit for students in remote locations or with families or jobs. PLTC graduates are immediately ready to practise law. Sounds pretty good, doesn’t it?

Well, you can already guess the drawbacks. Numero uno, from the student’s point of view, is that you pay to take the PLTC, whereas you get paid to article. That is a not insignificant obstacle, especially as the cost of a legal education continues to appreciate in this country.

Another problem is that even an unsuccessful articling stint provides students with contacts, networks, potential mentors — “a foot in the door,” as the task force puts it. The PLTC introduces you to full-time instructors and other unsuccessful articling applicants, but no one who can eventually help get you a job.

A third issue is that, as the task force readily admits, the Law Society of Upper Canada is in no position to set up a PLTC, financially or otherwise: this would have to be a private-sector solution. I actually think this would be a tremendous opportunity for an innovative law school or bar association, but innovation has never been especially overabundant in our profession.

These three objections alone might well be enough to scuttle the plan, but they don’t touch on the most significant problem: a PLTC certificate would be the equivalent of a scarlet letter for future employers. It would create a permanent two-tier system of new lawyers: those who could get articles and those who couldn’t, and the latter group will always be regarded differently and even suspiciously at the interview table (not to mention, of course, by clients).

Morale among PLTC enrollees would probably be low — high-achieving law students relegated to the professional equivalent of summer school would be deeply discouraged, and many might opt to abandon law altogether rather than go through what could feel like a humiliating experience.

The task force makes encouraging noises about actions the profession’s leadership could take to buttress the PLTC’s reputation, and the Australian example shows that it can work. But there’s also an old saying about a sow’s ear and a silk purse, and I expect that this country’s legal culture would not be able to transcend that attitude.

It’s too bad, because there’s one thing about this program I really like — it might be the best way to train new small-firm lawyers and solos. The task force notes elsewhere in the report that more than 70% of all Ontario articles take place in the Greater Toronto Area, most of them in large firms.

But 32% of all lawyers in Canada are in solo practice, with an additional 33% in firms of 2-10 lawyers. Only 18% of Canadian lawyers practise in firms of 51 or more lawyers. The articling system, by default, is supported by Canada’s largest firms, yet the legal and cultural training they dispense to their students will be directly relevant only to a small percentage of lawyers called to the bar. If you start off on Bay Street and end up in Smiths Falls, your articling experience will likely have added next to nothing to your ability to sustain a good practice.

One of the goals of the articling program, as set out by the task force above, is to “facilitate the transition to sole or small firm practice.” You’d be hard-pressed to argue successfully that the typical articling experience in Ontario does anything of the sort. But a PLTC might be just the ticket. If the course were set up with an emphasis on helping new lawyers to open their own practices or operate in very small partnerships, it could provide training on precisely those things that solos need to know and that big firms don’t teach during articles: financial management, overhead costs, marketing, business development, client relations, and much more.

The PLTC could become a favoured option for new graduates with an entrepreneurial bent who don’t want the big-firm life, but do want to be part of the two-thirds of all lawyers in solo or small practices. Yes, it will cost them more money on top of their law school tuition, but they intend to be businesspeople, and there are numerous large institutions falling over each other to extend credit to small business. The ancillary benefits — helping achieve the law society’s stated aims to assist lawyers and promote access to justice outside urban centers, among others — are also clear.

And who knows? If the PLTC is truly successful in delivering top-notch training, then even some students who are offered articling assignments might nonetheless choose to attend the PLTC, to give them a head start on learning to be a successful lawyer. And if that ever happened, those law firms still offering articling positions might be motivated to upgrade the quality of training and mentoring available to their students. A little competition in the effort to attract and train the best new lawyers could be just what this profession needs.

The PLTC is far from a perfect solution, but if the right private-sector partners could be found — and if, as the task force observes, “a significant shift [occurs] in the way in which the profession and the Law Society approaches and thinks about practical training” — I think it would really be worth a shot.

c. Abolish the articling requirement.

And here we are at Def Con 1. The task force notes the irony that while Ontario contemplates abolishing articles, many American states look longingly at the Commonwealth articling system as a better way to transition new graduates into the practice of law (though none has yet followed our lead in this regard).

The report doesn’t have much to say about this option, beyond observing that the ramifications for such a move would include public doubts about the competence of new lawyers and renewed scrutiny of the law’s self-governing status. That alone would probably be enough to make Convocation turn and walk rapidly in the opposite direction, even though either of those two outcomes could feasibly materialize if the articling system goes unreformed.

I don’t get the feeling the task force much likes the idea, and I can’t see the law society taking such a bold and irreversible step — not yet, anyway. But, just as the Australian examples shows the PLTC system can work, so does the American example demonstrate that, with some modifications, this approach could work too.

The enormity of the change should cause us to approach it with caution, but we should not dismiss it out of hand without talking it through first. I will say this, though: abolishing the articling system would, within the space of five to ten years at the most, completely change the character of Canada’s law schools, like it or not.

139. In the task force’s view, further limiting numbers who may gain access to the profession is not a reasonable or indeed viable option, for myriad reasons…

One last thing before signing off: the task force adds a little obiter dicta about “numbers in the profession,” which is a nice way of referring to those lawyers who are already in the lifeboat turning around and saying “No more! Cast off!” The task force, rightly in my view, rejects any notion that the profession could or should try to limit the number of new graduates.

Among the very good reasons: law societies have no power over the law school admission or graduation process, and trying to erect barriers to entry into the legal profession would get the immediate and sharp attention of various state and anti-monopoly bodies. If your pipes are leaking, the solution is not to use less water; it’s to fix the damn pipes already.

The task force has given the law society an excellent blueprint for doing just that, openly expressing some uncomfortable facts about the bar admission process and all but demanding that the profession’s governing body respond with alacrity. It’s important to remember that there are no ideal solutions, and that whatever the law society eventually decides to do will be met with criticism, some of it legitimate. But we can do better than we’re doing now, and the task force deserves a lot of credit for steering the profession in the direction of this inconvenient truth.

Yesterday, I posted a brief note about the Law Society of Upper Canada’s Licensing and Accreditation Task Force Interim Report To Convocation. Today, as promised, is the start of a two-part running commentary on what struck me as the most relevant or noteworthy aspects of the report. The first half, which I’ll address below, deals with the report’s preamble and its thoughts regarding the Skills and Professional Responsibility Program. Tomorrow, in an article that will first appear at SLAW, I’ll look at the task force’s recommendations concerning the articling system.

Herewith, an annotated stroll through a very important report.

15. A national standard for the approval of common law degrees for the purpose of entrance into law society bar admission or licensing processes has never been articulated in Canada. The only articulated standard for 50 years is a Law Society of Upper Canada document, set out at Appendix 1, that was prepared in 1957 and amended in 1969 (“the amended 1957 requirements”) and which other law societies appear to have tacitly accepted.

I think this nicely sums up the imminent train wreck of a lawyer licensing system that our profession lives with today. The standard was written in 1957, amended in 1969, and tinkered with at regular intervals over the next four decades while Canadian society, the legal services marketplace, and eventually, even the profession itself, evolved into enormously different beasts. In 1957, Louis St. Laurent, Maurice Duplessis, Tommy Douglas and Joey Smallwood all held elected office. Try picturing the legal profession as it existed in that era — that’s the profession that drew up today’s bar admission rules.

16. The amended 1957 requirements set out a lengthy list of courses law schools should offer to candidates and a brief list of courses that candidates must take, namely civil procedure, constitutional law of Canada, contracts, criminal law and procedure, personal and real property, and torts. … [17.] The required courses have remained substantially unchanged in 50 years. No review mechanism was built into the document and it is fair to say that there has been no substantial national regulatory discussion of the issue.

I don’t know about you, but it had never actually occurred to me that the curriculum of my first year in law school in 1990 had been mandated 33 years earlier. I had just assumed that, you know, the law schools and law societies got together on a regular basis, thought the whole thing through in a logical fashion, and determined that these were the most important foundational courses a new student should take. After all this time in the law, I should have known just how powerful inertia is around here, but I still find this fact staggering. No changes in the required first-year curriculum in 50 years?

35. In considering the skills and professional responsibility programs and the articling requirement, the task force has felt the weight of the status quo affecting its discussions. It is sometimes difficult to effect change when there is a tradition of doing things in a particular way.

That’s a nice, roundabout way of saying how brutally difficult it is to get this profession to take change seriously. The old saw about lawyers driving a car by looking in the rear-view mirror seems particularly appropriate here. The “weight of the status quo” can be backbreaking.

36. However, the task force is of the view that there is danger in continuing to assess the licensing process on the basis of memory and past experiences, rather than on present context, effectiveness and results. Moreover, much as it may be preferable to consider programs on their merits alone, they do not exist in a vacuum. It is irresponsible to ignore practical factors that impede the viability of programs and undermine their goals.

Oh, how I love Paragraph 36. Enough with the sepia-toned recollections; the plural of “anecdote” is not “data.” Let’s get some hard facts, some real evidence, some rigorous application of reality to principle. You could replace “licensing process” with virtually any tradition-bound aspect of legal practice or legal organizational culture, and the comment would still fit like a glove. I think I’ll get the last sentence in Paragraph 36 translated into Latin and use it as a particularly wordy motto.

43. The total instructional, exercise and preparatory time that a candidate will likely dedicate to the [Skills and Professional Responsibility Program] during the four week period includes,

a. 19.5 hours of instruction;

b. 19.75 hours of exercises/practicing activities;

c. 5.90 hours of independent preparation for class work; and

d. 14.85 hours of preparation, assessment and feedback time on assessments and assignments.

Total time spent in and out of class on program requirements is 60 hours.

Or, put differently, one billable week at a large law firm.

44. The development of skills training in Canadian bar admission/licensing programs began in earnest in the mid 1980s. It reflected a belief among regulators that law school education did not equip candidates with the practice skills necessary for the early years following call to the bar.

Not much has changed since, as the subsequent paragraph confirms by noting that even following a 2003 review of the Skills and Professional Responsibility Program, Convocation expressed its doubts that law schools were preparing their students to be future lawyers. The sentiment is even stronger within the profession – you don’t have to talk to a practicing lawyer about law school very long before hearing that the “ivory towers” aren’t providing enough “real world” training for students.

Schools’ failure to provide graduates with practical legal skills is now taken as an article of faith in the law, as conventional wisdom. And since I love seeing conventional wisdom debunked, Paragraph 56 is especially noteworthy. But before we get there:

50. In the task force’s and Convocation’s view, the role of practising lawyers was of central importance to the program, to provide candidates with an early exposure to mentors and role models and the opportunity to be taught by those with direct and current experience of practice.

I’ll third that motion. I’m don’t remember the content of any the courses I took during the Bar admission process in ‘93-’94 — I forgot them shortly after passing the Bar – but I do remember very engaging discussions with our instructors from various law firms around Toronto. They were real eye-openers, filling us in on law firm culture, workloads and expectations, as well as what life was really like in front of judges and masters.

There were the predictable accounts of “the Bar ads were a bird course when I was taking them,” of course, and more than one of the lawyer/teachers were neither pleasant nor informative. But by and large, I wasn’t the only student who wished we could just ditch the coursework and spend the time quizzing our instructor about the profession we were about to enter. The informal mentoring felt more valuable than the short-and-sweet skills training, and I imagine it still does. Anyway, here’s Paragraph 56.

56. In the task force’s view, the survey [of common-law school deans across Canada regarding their curricula’s accordance with specified law practice competencies] provides strong evidence of the following:

a. Skills education forms a significant part of the law school curriculum, in many cases the mandatory curriculum. This is equally true for professional responsibility as it is for the other identified skills.

b. It is overwhelmingly the case that the skills instruction candidates receive typically involve more hours of instruction than candidates receive in the licensing program, in some instances significantly more.

c. Intensive courses and clinical experience have multiplied over the years since the Spence Report and are now present in most law schools. These provide integrated and complex training that cannot be duplicated in the licensing process. The skills of client relationships and practice management appear to be most frequently addressed in this context. In the task force’s view it is difficult if not impossible to learn these skills well other than in “practice” context.

d. The survey reveals evidence of significant duplication and only modest gaps between the Law Society’s skills and professional responsibility program and law school education in these competencies.

e. With few exceptions, the majority of law schools identify a mandatory professional responsibility course. This is in addition to any teaching integrated into substantive courses.

To me, this is the heart of the report, and it doesn’t mince words: “significant” and “overwhelmingly” are not modifiers you throw in there for fun. The task force is saying that law schools are in a better position to effectively teach students professional skills, and that they’re doing rather a fine job of it.

This is not a conclusion I think many practicing lawyers will be willing to accept right away, wedded as they are to their notion that law school is not “practical” enough. But nor do I think this is a conclusion the task force reached quickly or lightly. It is an acknowledgment that the schools are actually doing alright in this respect.

But even more importantly, it’s an admission that the law society’s ability to adequately train law school graduates to practice law is very limited, trailing both the practicing Bar and the law schools. That’s going to cause some perhaps uncomfortable scrutiny of what role the law society actually fills in the Bar admission process.

66. Large law firm commitment to the program is extremely limited. Very few of the over 100 instructors who participate are from larger firm environments. Yet the majority of candidates will article in those environments upon completion of this program.

I think someone needs to call out the large national firms on this fact. I’ve noted elsewhere that Canada’s largest firms assume an outsized share of the burden of articling clerkships, and they should be recognized for that. But I think it’s pretty rich that the same firms that complain long and loud about how new lawyers are so poorly prepared to practise law are the same firms that evidently make very little contribution to provide that “real world” training. Part of the pro bono ethic means giving back to the legal community, too.

67. In 2007, the Professional Development & Competence Department was required to use full-time lawyer employees of the Law Society to fill instructor requirements…. Ironically, candidates may have significantly greater exposure to the practicing bar in their law school education than they currently do in the licensing program.

“Ironically” is one word to describe that situation. “Perversely” works well, too.

78. The task force is of the view that the skills and professional responsibility program is not meeting its goals for the reasons set out above. Moreover, external pressures such as increasing enrollments, potential shortage of teaching space, and in particular difficulty in recruiting members of the practising bar to instruct in the program, render the program increasingly unsustainable.

79. This conclusion, coupled with the strong evidence that law school skills training is accomplishing most, if not all, of what the current Law Society skills and professional responsibility program does, has made the task force confident in proposing that the skills and professional responsibility program of the licensing process be discontinued.

And there you have it. The evidence to support that conclusion (I’ve only glossed over it here) is impressively assembled and the conclusion is difficult to argue with. But if Convocation accepts this recommendation – and I expect that it will – there will be ramifications. As the report subsequently suggests, law schools may be strongly encouraged to increase their present complement of professional training offerings, especially regarding ethics and professional responsibility, which in turn might well cause some real consternation at the law schools. I doubt that many people will mourn the Skills and Professional Development Program if it passes on, but no one should underestimate the potential effect of its disappearance.

So, that’s about half the report. Tomorrow we’ll dive into the really interesting part: what will become of the articling program.

The main interim report is 44 pages long, followed by an additional 152 pages spread out over 10 appendices. I doubt there’s ever been a more comprehensive report on the bar admission process (nor will any other province likely try to duplicate the task force’s efforts or findings), and I can only imagine what the final report will look like. For what it’s worth, I think the report’s findings are accurate, timely and sorely needed.

I don’t have time here to break down the report in detail — I’ll be writing a more comprehensive commentary that will appear at SLAW in a few days’ time and will be cross-posted here. But this is what you need to know:

1. The Task Force recommends the abolition of the current Skills and Professional Responsibility Program from the bar admission process in Ontario. Of all the reasons the task force gave for this recommendation, perhaps none is more suprising than its assertion that right now, law schools are doing a better job of teaching students skills and professional responsibility than the law society is.

2. The Task Force offers three alternatives to the current articling process by which lawyers ostensibly receive sufficient practical training to enter the practice of law. These are:

(a) make it extremely clear to all current and prospective law students that the law society does not guarantee articling placements, and accordingly cannot guarantee that a law graduate can become a practising lawyer (laissez-faire).

(b) set up or certify a parallel Practical Legal Training Course that provides law graduates who could not obtain articles the chance to earn an equivalent certification in practical legal skills training (Australian model).

(c) Abolish articling outright (the U.S. model).

The Task Force makes no recommendation concerning these three options — it offers pros and cons of each — but it makes quite clear that the status quo is not sustainable, not least because the Ontario bar admission process is facing a tsunami of rising applications over the next few years, culminating in an expected 2009 application class no less than 38.7% larger than in 2001.

The report is groundbreaking, if for no other reason than that it squarely lays out the numerous shortcomings of Ontario’s present bar admission process and demands that the profession act, now, to change. Go read it.

A little less than three months ago (November 7/07), the Law Society of British Columbia’s Lawyer Education Committee released what I expect will one day be seen as a landmark report on MCPD. Earlier this month, the law society accepted the committee’s recommendation for a limited CPD regime in B.C. starting in January 2009. Other provinces are talking about MCPD to a greater or lesser extent, including Manitoba, Ontario, Quebec and Nova Scotia, but none currently intends to go as far as B.C. is going. I recommend the final report, and its interim antecedent, for a thorough and impassioned exploration of the state of post-call legal education in Canada and worldwide.

For me, however, the landmark nature of the report doesn’t arise so much from the new mandatory status of CPD. One way or another, either through law society requirement or through outside intervention by the marketplace or the state, the days when lawyers could choose whether or not to upgrade their skills and knowledge are coming to an end. What’s really promising about the B.C. decision is the broad range of approved CPD activities.

Traditional CLE course offerings are there, of course. But the report emphasized that CPD is broader than CLE, and the approved activity list confirms this. The law society will, for the purposes of filling the 12 hours of required CPD, also accept the following:

• attendance at CBA section meetings,
• attendance at an education-related activity offered by a local or county bar association;
• participation in or teaching at a group education program offered by a lawyer’s firm, corporate legal department, or government agency;
• participation in a law-related study group of two or more persons; and,
• writing law books or articles relating to the study or practice of law for publication.

Not only that, but thanks to the advent of phone-delivered, videotaped and online CLE, access to courses is finally becoming practical for lawyers who live outside major urban centers or whose inflexible schedules don’t permit in-person attendance at these sessions. Before we know it, the traditional image of CLE — lawyers sitting stiffly in classroom seats, taking notes on a thick binder while a lecturer reads out a speech or a PowerPoint presentation — will, finally, become a relic of an earlier age.

I think we’re seeing a major shift here: the legitimized redefinition in this country of what constitutes effective and acceptable CPD activity for lawyers. The new approach is more sophisticated in its appreciation of how adults actually learn and more cognizant of the realities of lawyers’ lives. Starting in 2009, post-call learning for lawyers should become more accessible, collaborative, interactive, and nuanced — and, it says here, effective.