The CASE for standards of supervised practice in lawyer licensing

Speaking to a US-based regulatory conference last month, I remarked on a key difference between the Canadian and American lawyer licensing systems: “In Canada, we decided that nobody should be allowed to practise law until they’ve spent a period of time performing supervised lawyer work in a legal services environment.”

This mostly refers to the “articling year,” a decades-old tradition in Canada that mirrors similar customs in most other countries that require a person to complete a term of supervised practice or apprenticeship before they are granted admission to the profession. (Canada has a few other supervised practice options, which we’ll talk about a little later.)

In the United States, one of the very few countries that don’t have a similar requirement, interest in supervised practice as a replacement for the bar exam spiked during the pandemic and led several states, including California, Florida, and Illinois, to temporarily grant bar admission to aspiring lawyers if they completed hundreds of hours of practice under the supervision of an experienced practitioner.

A few Americans would like to see supervised practice become a permanent alternative to the bar exam, and I’ve often heard US lawyer friends comment admiringly on our articling requirement. But the reality of articling is less admirable than it might appear from a distance. In theory, it makes sense for an experienced practitioner to oversee an aspiring lawyer’s learn-the-ropes performance of lawyer tasks, providing valuable experience and feedback to the trainee while ensuring the client is competently served. In practice, that’s not often how it works.

Bar admission: Harder than you might think.

A supervised practice requirement for bar admission is terrific only if it’s done properly, fairly, and systematically. As I’ll describe below, articling in Canada is riddled with problems on all these counts. So I want not only to encourage countries that haven’t adopted supervised practice requirements (🇺🇸) to do so, but also to challenge Canada (and other countries) that do mandate this step to be more conscientious and vigorous about making sure it actually works.

Here are the most serious problems afflicting articling in Canada:

1. Unsafe and unfair: A survey in 2019 by three western provinces found that about a third of all articling students had experienced discrimination or harassment during their articling term, while another province’s survey in 2018 placed the total at more than a fifth; both these surveys likely under-report the extent of the problem. Moreover, systemic discrimination in law firm hiring means racialized students and internationally trained lawyers have a harder time accessing articling positions. The excuse of “cultural fit” has allowed hiring choices in articling to reinforce traditional barriers into the profession against women, minorities, and immigrants.

2. Absence of assessment: Standards of acceptable competence outcomes for an articling term in Canada are a very mixed bag. While each province provides lists of what a student is expected to learn, do, and experience during articling (see examples from Nova Scotia, Alberta, Ontario, and British Columbia), only some reference the Federation of Law Societies of Canada’s National Entry to Practice Competency Profile for Lawyers, while others simply state that the student should receive “practical experience and training” in these areas. More importantly, assessment amounts to little more than the supervisor’s prospective promise (or retrospective assurance) that everything on the lists will be or has been covered off.

3. Fewer opportunities: Articling positions generally are diminishing, leaving a growing number of bar applicants unable to fulfil this requirement and start their careers. Corporate clients have led market changes that reduced the demand for low-skilled lawyer labour: they have insourced basic legal work, re-directed that work to law companies and ALSPs, or fed it into the fast-growing maw of legal technology. Over the last couple of years especially, firms themselves have followed suit, reducing further the entry-level tasks available to novice lawyers. Ontario’s articling shortage prompted the approval of alternatives like an Integrated Practice Curriculum at two law schools and a Law Practice Program in two cities; British Columbia and Alberta are now examining new supervised practice options for similar reasons.

In some ways, articling is to Canada what the bar exam is to the United States — the traditional final stage in the licensing process, so rooted in the professional culture that its rampant flaws are ignored or excused on the grounds that “we’ve always done it this way” and “if I had to go through it, so does everyone else.” If we want to maintain our status as a self-governing profession that purports to apply robust, verifiable competence standards for admission to its ranks, then we need to do better than that.

Res ipsa loquitor.

Whether we’re Canadians talking about improving on articling or proposing superior methods of supervised practice — or whether we’re Americans looking to create a supervised-practice requirement of our own for bar admission — we need to establish a threshold standard for supervised practice, one that would satisfy skeptical outside observers that newly licensed lawyers demonstrably possess the entry-level knowledge, skills, and attributes of law practice.

I recommend that regulators and bar admission overseers create such a standard and integrate the following four elements into their lawyer licensing processes. And because people seem to like acronyms, I’ve arranged these elements to make my CASE that supervised practice standards should be:

Consistent: To ensure fairness, the supervised practice experience should be as similar for all licensure candidates as can be practically achieved. There is unacceptably wide variance in apprenticeships today: One articling student might benefit from a highly positive work environment with mentoring and support, while another might wind up in a barely functional law office, purely through the luck of the draw (or non-relevant hiring factors). This variance is a direct consequence of outsourcing a key element of the regulatory role to the private sector; either much tighter controls and parameters must be placed and enforced on law firm apprenticeships, or the whole process must be centralized under direct regulatory oversight. Which leads to:

Accessible: A supervised practice system that is unavailable to some licensure candidates is unfair; a system in which the inability to obtain a supervised practice opportunity is directly correlated to one’s race, ethnicity, or country of origin is unfit for the profession. There must be systematic assurance that everyone who wishes to become a lawyer can meet the mandated requirement of supervised practice. Moreover, affordability must be considered. Today in Canada, some supervised practice options pay much better than others, while others are unpaid altogether. This wide variance in the financial cost of apprenticeship is another barrier to entry into the profession.

Safe: We can’t continue to send young people into workplaces where they will be subjected to harassment, discrimination, or abuse, and simply accept it as “part of the experience.” It’s especially egregious that we tolerate this treatment of novice lawyers with no power or leverage, unfamiliar with legal culture and dependent upon their supervisors’ approval to complete their training and start their careers. If regulators are going to require vulnerable bar applicants to enter into legal workplaces, they must regulate and closely monitor those workplaces to guarantee they are safe, secure, fair, and free from exploitation. It’s no excuse to say ensuring that kind of system would be “too expensive.” If we can’t afford to provide safe apprenticeships, then the requirement should be abandoned altogether.

Effective: At the end of the day, even if all these other flaws can be addressed, no supervised practice system should be considered valid unless it demonstrably develops in its participants the competencies required for bar admission. It’s not enough to require principals to sign a document attesting that the student has “successfully completed” articles — such assurances have been rote for decades. Most regulators specify the competencies that articling must inculcate, but there is little or no independent assessment or determination of competence outcomes during or after articling. The absence of an evaluation framework converts what ought to be a thoroughly vetted development process into a mere rite of passage.

The problems I’ve listed here are serious; but they are not insoluble. With time, effort, resources, and creativity, not only can we overcome these challenges, we can institute a powerful, effective, and resilient system of professional formation.

  • Consistency and Accessibility can be improved by creating a centralized and closely monitored supervised practice environment — perhaps a “teaching law firm” where licensing applicants can provide legal services to underserved segments of the population while receiving experienced oversight, active feedback, and professional supervision from trained lawyers. Licensure applicants may freely choose to obtain their supervised practice qualification elsewhere, but an entity like this, open to all comers, would guarantee that nobody who wants to become a lawyer is denied the chance to meet this requirement.
  • Safety can be improved by requiring those lawyers who wish to act as the principal supervisors of apprentices to successfully apply for the role. Criteria for successful application could include previous experience in a supervisory or mentoring role, contact information for a former supervisee, and completion of an online training course (I made these recommendations to the Law Society of Alberta in a report last year). An equally valid approach would involve proactive management-based regulation, already in place or in development in several states and provinces.
  • Effectiveness can be improved in several ways, not least by reviewing and adapting the Solicitors Regulation Authority‘s best-in-class Threshold Standard and Qualifying Work Experience Record Template. The template in particular points in the right direction, because it empowers the licensure candidate to record those daily and weekly activities that advance the candidate towards achieving the specified levels of acceptable competence. Make this record accessible in real time to both the candidate’s supervisor and, importantly, the regulator, and you move closer to effectively measuring the candidate’s acquisition of entry-level competence.

Toughest CASE to crack yet.

Reforming a system of supervised practice, or creating a new system from scratch, is obviously a daunting prospect. Opponents of the reform (or creation) of a supervised practice requirement would object to the cost and complexity of the effort.

But in a profession that grants what is effectively a universal and permanent license upon admission — revocable only upon amply demonstrated proof of multiple serious transgressions — lawyer licensure is the single most important moment in the regulatory function. Everything hinges on the standards (if any) that we choose to set and enforce up until, and at, this moment.

I think there’s tremendous value in the proposition that “nobody should be allowed to practise law until they’ve spent a period of time performing supervised lawyer work in a legal services environment.” But if we’re not willing to back up that sentiment with action, then we have no business telling ourselves or others that we have a legitimate lawyer licensing system — and we shouldn’t force every new cohort of lawyers to pay the price of our self-deception.

Radical roads to reform lawyer formation

On April 27, I’ll be delivering the morning keynote address to The Future is Now: Legal Services, the annual conference of the Illinois Supreme Court Commission on Professionalism. The topic of my presentation will be “Reinventing Professional Development for Lawyers of the Future,” and if that’s of interest to you, I’d encourage you to check out the full conference agenda (featuring superstar presenters like Kim Bennett and Brian Cuban) and register for the event today.

For my contribution to the conference materials, I prepared a paper titled “Towards A New and Better Model For Lawyer Formation and Ongoing Competence.” In case you’re interested, I’ve reproduced a modified excerpt below.

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What do I mean when I talk about “lawyer formation?” I think that term can best be understood as the process by which a person becomes a competent, confident, and independent lawyer:

  • Competent: The lawyer has established to the satisfaction of the relevant licensing authority that they possess the minimum capacities and characteristics necessary for licensure.
  • Confident: The lawyer has acquired enough professional experience and received sufficient guidance and validation to attain emotional self-assurance and trust in their own abilities.
  • Independent: The lawyer can serve clients, manage tasks, fulfil professional duties, and regulate themselves without requiring supervision or oversight by more experienced practitioners.

This formation process begins no later than the first day of formal legal education (although it can start much earlier, even before a person applies to take the LSAT), and it ends when a licensed lawyer meets all three of the foregoing conditions (an occasion that will arrive at different times for different people).

At a minimum, lawyer formation takes three to four years — but for most of us, the process lasts significantly longer, sometimes a decade or more. That obviously means our achievement of “competent lawyer” status won’t occur until years after we first obtained our license to practice — long after a regulatory authority informed us and the world that we were fully licensed to deliver every type of legal service to anyone who cared to hire us.

Lawyer licensing is out of step with lawyer competence, and the lawyer formation process is the reason why. In most jurisdictions today, that process fails to properly and efficiently ensure competence, confidence, and independence among the lawyers it certifies. It is fragmented, repetitive, and focused primarily on the interests of the entities (law schools, bar examiners, regulators) that administer each step, rather than on the lawyer it is forming and the clients that lawyer will someday serve.

What we need is a new lawyer development model that is unified, strategically designed, and focused on the needs and interests of lawyers and clients. But we can’t achieve this goal by incremental steps, not when so many longstanding and powerful institutions benefit from the status quo, and especially not in the Pandemic Era, when half-measures accomplish very little. We need to think bigger, challenge more fundamentally, and be ready to embrace entirely new approaches to this issue.

I’d like to recommend three actions that would begin to truly overhaul the lawyer licensing and development process. They would be disruptive. They would cost a lot of money and require a lot of effort. But I believe they’re the kind of measures we’ll need if we want to make real progress towards a healthier, more capable, and more effective legal profession.

1. Design a licensing assessment system that makes a law degree optional. Create a robust competence framework for new lawyer licensing, and assess applicants’ ability to satisfy its requirements regardless of whether the applicant has completed a law degree. Follow the lead of the Solicitors Regulation Authority (SRA) in England & Wales, which in September 2021 will make the Solicitors Qualification Examination the sole “legal knowledge” criterion for bar admission — a law degree will not be necessary. The SRA is concerned only with whether an applicant has acquired the skills and knowledge to pass the exam; it is not especially concerned with where or how the applicant acquired those attributes.

Future Road to Lawyering

North American regulators should develop a multi-dimensional competence framework for law licensure that encompasses:

  • legal reasoning and knowledge,
  • legal ethics and professional identity,
  • legal business skills and client service, and
  • empathy and emotional resilience.

Regulators should then assess aspiring lawyers against this framework, regardless of whether or to what extent applicants have completed law school. Regulators should also encourage the growth of non-school entities that can emerge to give aspiring lawyers the knowledge, skills, and training they need to satisfy the competence framework and assessment system.

Under our current licensing system, the law degree acts as a proxy for a set of learning experiences that are presumed to advance the student towards competence. Rather than forcing would-be lawyers to invest three years and hundreds of thousands of dollars to acquire this proxy certification, regulators should decide what a new lawyer should actually know and know how to do, and design an assessment process that allows bar applicants to prepare themselves to pass it however they wish.

2. Require supervised practice experience for licensing. No jurisdiction in the United States requires aspiring lawyers to gain supervised practice experience before they receive their law license. In this regard, the US stands almost entirely alone in the world. Articling students in Canada, trainee solicitors in England, and rechtsreferendare in Germany are examples of apprenticed lawyers-in-training who spend one to two years in a legal work environment applying the knowledge and principles they learned in law school, under the supervision of experienced practitioners. American legal regulators should follow suit.

Even if a mandatory period of supervised post-graduate training in a legal workplace is not adopted by American regulators, there are other ways to ensure a significant degree of exposure to practice realities. States could require that a law student complete a specified amount of supervised clinical education in law school, as was recently recommended by the Institute for the Advancement of the American Legal System (IAALS)’s “Building a Better Bar” report.

Simulated Future Firm™

Alternatively, regulators could require that licensing applicants successfully complete a virtual “simulated law firm” program, where would-be lawyers handle fictitious files, connect with clients and witnesses portrayed by actors, and learn the ropes of law practice in a training environment with oversight and mentoring from practice advisors. Simulated law firms are currently part of the bar admission program in five Canadian provinces. They do not substitute for the actual experience of working in a legal services environment, but they are preferable to the absence of any kind of experience at all.

3. Mandate comprehensive CPD for lawyers in their first five years. One consistent shortfall in lawyer development across all jurisdictions is that new lawyers are credentialed and licensed too early. Most first-year lawyers are unprepared to carry out the tasks that clients and employers require of them, poorly trained to handle the basics of business management and client relations, and unready to handle the intense emotional disruption of the shift from academic to working life on their own.

Regulators therefore should continue the training and education of lawyers following their call to the Bar. They should create a comprehensive professional development program designed to guide the growth of the novice lawyer throughout their first five years in the law. This program could provide:

  • asynchronous learning through online videos and interactive materials,
  • mandatory in-person workshops and conferences for junior practitioners,
  • access to toolkits filled with resources for running a legal business,
  • mentoring opportunities with multiple senior lawyers in their jurisdiction, and
  • an anonymous Help Line that can be called any time day or night for assistance, support, or counselling.

Essential Support for the Future

A program like this would not be cheap to develop and deploy; but it would be much less costly than losing thousands of lawyers to discouragement and depression every year, not to mention reducing the professional insurance costs of under-developed lawyers mishandling their own affairs and those of their clients. And, along with the other two actions described above, it would mark a new beginning in how the legal profession regards lawyer formation and would accelerate the development of annual new cohorts of strong, proficient, and confident lawyers.

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The first step towards solving a problem is confronting head-on that it’s real and it’s serious. I don’t think we’ve arrived at that point yet when it comes to our lawyer formation process — there’s still too much poking around the edges or pinning all the blame on individual stakeholders (law schools, bar examiners, etc). But every day we postpone true recognition of our troubles, the longer it will take us to come up with solutions equal to the challenge.

The real issue is not that these three foregoing suggestions are too radical, but that they might not be radical enough. Only when we come to accept the need to fundamentally change how we approach the critical first decade of a lawyer’s career will these solutions seem equal to the monumental task at hand.

Lawyer competence in three dimensions

Suppose that a person has obtained a law degree from a recognized and accredited law school. Suppose further that this person has successfully completed the bar admission process in their jurisdiction and has been admitted to practice by the relevant authority. Are you satisfied, all other things being equal, that this lawyer is competent to practise law? I’d imagine you are.

Now, let’s start making other things less equal — but more realistic.

Let’s say this lawyer has been hired by a very small law firm where the staff consists of a part-time administrator and a legal secretary, subscriptions to major research databases have lapsed, and there is no centralized system for case management or deadline reminders. The lawyer is quickly buried under extensive drafting and research work on short timelines by impatient partners whose feedback is rarely constructive.

Let’s say further that this lawyer owes more than $150,000 in student loans, must commute (in non-pandemic times) 45 minutes each way to the office every day, has had to assume responsibility for a chronically ill parent who requires frequent trips to the hospital, and is increasingly dependent on painkillers to relieve crippling headaches and backaches at the end of each day.

Do you still think this lawyer is competent? You might say that technically, yes they are — the knowledge and skills they possessed upon their call to the Bar are all still there. But here’s a different question: Would you feel confident about hiring this lawyer to solve your problems or carry out your important tasks? Would you be comfortable — given their circumstances — that the lawyer could effectively apply their knowledge and skills to get the job done cleanly and correctly?

You might be less sure. I know I would be. And that’s why I think we need to start re-conceptualizing what we mean by “lawyer competence.”

Reaching into the future, in 3D

I spent much of last year researching and writing a report on lawyer licensing and competence for the Law Society of Alberta. One of the things that struck me during that process was that we define lawyer competence solely in intellectual terms — as the possession of minimum levels of knowledge and skill sufficient to satisfy regulatory requirements.

Possessing that knowledge and skill is obviously important — but it’s also incomplete, because it fails to appreciate that what matters to the client and to the public is not what the lawyer knows, but what the lawyer actually does with their knowledge.

The public is not protected by a lawyer who merely possesses knowledge and skill in a passive, static sense; the public is protected by a lawyer who applies that knowledge and skill correctly and effectively in the real world. The first understanding of competence is technical; the second is practical. I think the second one is better. Lawyer “competence” concerns clients much less than does lawyer “performance.”

I need to be careful here, because when I first discussed these ideas on Twitter, some people thought “performance” referred to the outcomes lawyers obtained for their clients or the experience they delivered. Client outcomes and experiences are super-important, but that’s not what I mean here by “performance” — I mean, can the lawyer actually deliver and implement the knowledge and skills they possess to solve client problems? Can they carry out the work? Can they perform it? That’s where the rubber hits the road — lawyer qualifications meet the public interest at the point of implementation and execution.

If a lawyer possesses what we consider the complete toolkit of competence — all the required knowledge and skills — but is unable to use those tools effectively because of various circumstances, is that lawyer competent to practise law? Our current regulatory model says yes. Clients who are inadequately served by lawyers who cannot apply their knowledge and skills would say no.

Let’s go back to our unhappy hypothetical lawyer at the start of this post. They’re grinding every day in a sketchy workplace with few quality controls or professional standards, and they’re afflicted at home with financial, family, and addiction issues. It doesn’t matter whether this lawyer got a perfect score on their bar exam — they are not in a position to apply their competence qualifications effectively, and that will ultimately be to the detriment of themselves, their clients, and the public in general.

I think regulators should strive to ensure an ongoing level of lawyer competence that encompasses not just the possession of baseline legal knowledge and skills, but also two additional factors that crucially affect the lawyer’s ability to apply their competence: the lawyer’s workplace environment, and the lawyer’s personal well-being. Regulators obviously cannot control these other two factors in lawyers’ lives. But they can take steps to strengthen and reinforce them.

● Workplace environment. Does the lawyer’s workplace help to promote, or at the very least support, their ability to apply their knowledge and skills to client matters? Is the lawyer given adequate technological and staff resources? Does the workplace maintain systems and standards in client intake, matter management, client communication, conflicts checking, and trust accounting? How sound is the firm’s “ethical infrastructure,” its systems and culture of professional conduct? The degree to which these questions have positive answers will affect the ability of lawyers within this workplace to provide competent service to clients.

It’s important to give your trainees a good office environment.

How can regulators oversee the workplace environments of the lawyers whose conduct they govern? Jurisdictions such as Australia and England & Wales have provided us with one good answer: entity regulation, whereby the individual lawyer is not the sole focus of regulatory oversight. An entity that provides legal services to the public should feature structural standards to ensure and enable the effective delivery of those services. In essence, you regulate not just lawyer competence, but also law firm competence.

● Personal well-being. Nobody pretends that practising law is a stress-free career. But there’s a difference between doing hard work for high stakes (the lot of every lawyer) and suffering from debilitating levels of pressure and anxiety. The latter description fits too many lawyers today: deep in debt, either trying to keep a practice afloat in a pandemic or constantly in fear of being laid off or “de-equitized,” unable to get or remain healthy, and so on. The results, as we already know, can include burnout, depression, addiction, and suicide.

How can regulators improve the well-being of the lawyers they regulate? “The Path To Lawyer Well-Being: Practical Recommendations for Positive Change,” the under-appreciated 2017 report of the National Task Force on Lawyer Well-Being, delivers on its title with 44 recommendations (and 88 tips in a separate mini-toolkit) to improve lawyers’ mental, emotional, and physical health. Regulators could implement the four recommendations targeted to them and strongly encourage all other stakeholders to do the same for theirs. They could make well-being not merely one component of competence, as many regulators are now doing, but consider well-being a critical catalyst without which a lawyer’s knowledge and skills cannot be effectively applied.

To be competent means that you can do something. Lawyer competence is functional, not abstract. It has three dimensions: knowledge and skills, workplace environment, and personal well-being. Regulators should start thinking about how they can ensure not just that lawyers possess the knowledge dimension of competence, but also that their personal and workplace circumstances allow them to effectively deploy that knowledge in service to clients. That’s the next step in the ongoing effort to continually enhance the competence of lawyers.