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.