Category: Law School

Requiring an aspiring lawyer to earn a law degree before they can begin the lawyer licensing process is an unnecessary and unfair barrier to entering the legal profession. The requirement should be dropped.

That’s (probably) the most controversial proposal in the report I submitted to the Law Society of British Columbia, which recommended the adoption of a competence-based lawyer licensing system. To be clear: The LSBC accepted the competence-based licensing recommendation itself last month, but made no other determination about anything else in the report, including my suggestion to drop the law degree requirement. Nothing is changing in BC in this regard. Law schools, you can exhale now.

In this post, I want to explain the reasoning behind my proposal, which is fleshed out in further detail in pages 9-13 and 34-39 of my report. A few preliminary points.

• I’ll be using the Canadian law school and licensing system as examples, but everything here applies equally (if not more so) to the American context, where the law degree requirement is an even more arbitrary and exclusionary requirement for licensure.
• I’ll be focusing on domestically trained candidates for law licensure — Canada has a separate (though also troubled) regime for internationally trained candidates, those who’ve worked as a lawyer or gained their law degree in another country. That’s a future post.
• I’m emphatically not saying that law school has no value. A good law school experience can deliver extraordinary benefits to aspiring lawyers. I’m talking about the licensing requirement to complete a full, three-year law degree. These aren’t the same things.

With that out of the way, here we go.

Let’s start by recognizing some of the core elements of a competence-based licensing system: transparency, defensibility, and accessibility. Unlike a credentials-based system, in which the admissions authority accepts various third-party certifications as a proxy for entry-level competence, a competence-based system explicitly identifies the competencies for Day One practice and directly assesses candidates to determine whether they possess those competencies to the required degree.

In practical terms, that means an aspiring lawyer must have a fair opportunity to:

1. find out what the required competencies for law licensure are;
2. acquire those competencies; and
3. demonstrate their possession of those competencies to the regulator.

The first of these conditions is relatively easy to meet; the regulator need only decide on and publish a competence framework that identifies the knowledge, skills and attributes (and the measure of each) that it demands of a newly licensed lawyer. Once those competencies are publicly announced, posted to a website, and otherwise distributed widely, the regulator has satisfied its duty here.

It’s in the second and third conditions that the law degree requirement becomes a much greater problem.

A comprehensive framework of legal knowledge competence for licensure would demand significantly more than what is currently required of a law degree. For example, the Competence Profile developed for New Brunswick’s new bar admission program (at p. 16) identifies 29 separate knowledge competencies in four categories: the legal system, substantive law, legal procedure, and legal practice. The Solicitors Regulation Authority of England & Wales goes further: The SRA’s Statement of Legal Knowledge, which sets out the knowledge solicitors must demonstrate at the point of qualification, lists 60 items of knowledge competence across 11 categories, plus a host of other legal knowledge requirements.

No Canadian or American law school is required to ensure its graduates are instructed in anything close to all these areas. The Federation of Law Societies of Canada’s National Requirement, which mandates the elements of a common-law degree necessary to make its graduates eligible to enter bar admission programs, states that “Substantive Legal Knowledge” encompasses only a general understanding of the core legal concepts of:

• Foundations of law, including principles of common law and equity, the process of statutory construction and analysis, and the administration of the law;
• Public law, including constitutional law, criminal law, and the principles of administrative law; and
• Private law principles, including contracts, torts, and property law.

Now, my understanding is that the Federation is currently working on a comprehensive update to the National Requirement, which is excellent news. But with or without this update, the point remains that the gap between what law schools are currently required to ensure their students learn, and what the future wave of knowledge competence frameworks will require licensure candidates to possess, will be significant. (See also similar processes underway with the ABA’s Standards and Rules of Procedure for Approval of Law Schools.)

This is going to create a very difficult situation for law schools. If they maintain their old curricula regardless of more detailed knowledge competence standards demanded by licensing authorities, they risk losing their accreditation, with disastrous consequences. But if they adopt their degree programs to reflect regulators’ knowledge competence demands, they will massively disrupt their programs, cause havoc within their faculties, significantly reduce student choice in courses, and — maybe worst of all — effectively admit that they really are trade schools after all, surrendering control of their curriculum decisions to professional regulators and fatally compromising their academic independence.

I don’t like either of these outcomes. I don’t want to see a mass de-accreditation of law schools across North America, which will not serve anyone’s interests. But I also don’t want to bring about existential convulsions within law faculties that could destroy these institutions from the inside. And in any event, I don’t think regulators have the right to restrict the academic independence of universities.

How do we resolve this dilemma? We do it by going back to the three conditions of a competence-based licensing system and looking again at the third: that the candidate must “demonstrate their possession of those competencies to the regulator.” (Emphasis added.)

The point of competence-based licensing is that the admissions authority must be able to declare itself satisfied as to the competence of each applicant. But it can’t do that if the candidate is demonstrating competence to someone else. When you accept someone else’s testimony as to a candidate’s competence, you’re back to a credentials-based system.

The regulator bears the ultimate responsibility for the competence of every lawyer it licenses. This is even more important because in practical terms, a law license is permanent: Barring gross misconduct, a lawyer need never surrender their license once they obtain it. So a regulator must be able to defend every decision it makes to license a lawyer, and it can’t do that by saying, “Well, they had a law degree, and they passed a bar exam, and they apprenticed at a law firm without setting the place on fire, so we assumed they were fine.” That’s not a fulfillment of regulatory duty, that’s an abdication of it. The public expects and deserves more.

If we accept that the regulator’s job is to directly satisfy itself of a candidate’s knowledge competence, then a pathway to a solution opens up. Let law schools retain complete control over what they teach — they can ignore the Competence Framework if they like, they can change their entire program to replicate it, or they can do something in between. Let them decide if they’re pure academic research institutions or lawyer training grounds or something in between.

Law schools can do this if we drop the law degree requirement for bar admission — if we decouple legal education from lawyer licensing. Let law schools teach whatever legal knowledge they like. Let regulators require whatever legal knowledge they consider essential for bar admission. Stop trying to make these two unrelated entities walk in lockstep, like prisoners shackled at the ankles.

Instead, regulators should conduct their own assessment of licensure candidates’ legal knowledge competence (and other types of competence too, but that’s a separate topic). That assessment will probably take the form of a written examination — certainly, that’s what the SRA in England & Wales has done with the comprehensive and demanding Solicitors Qualification Examination, and what every US state now requires with the (very poorly designed and executed) bar exam.

To be sure, that approach has real drawbacks as well — including the pernicious and unacceptable problem of race-based differences in licensing exam results. But our system already suffers from this problem now, and we will have to cure this defect even if we make no changes to the lawyer licensing process. (More about this issue in my report at pp. 43-44.)

Whichever assessment method regulators choose, however, a candidate should be required to demonstrate their legal knowledge competence directly to the regulator — not to an independent third party with a different mission and purpose. This is the regulator’s job.

There would be so much to be gained by this reform. Law schools would benefit by being released from their obligation to teach what a professional regulator tells them to teach. Regulators would benefit by re-focusing on their duty to the public to ensure new lawyers are competent to practice, and from being able to assure skeptics in government that they are performing self-regulation responsibility.

But nobody would benefit from this change more than aspiring lawyers themselves. Because let’s not forget the biggest problem with law degrees: Even though they’re necessary for licensing, they’re still not sufficient.

Most Canadian law societies require candidates who have already earned a law degree to then complete a bar admission program that teaches and tests additional areas of substantive and procedural law. Every US state requires candidates who have already earned a law degree to then complete a bar exam that retests law school knowledge but is much harder to pass than any law school course. We require candidates to complete a lengthy and expensive law degree that doesn’t give them all the knowledge they need to become lawyers.

How expensive? As of 2018, the average Canadian law student graduated with $71,000 in debt. In 2022, the average American law student graduated with $165,000 in debt. And that’s not counting the even more valuable three years of the candidate’s life devoted to gaining this credential. Sure, law is a powerful and high-status profession, and someone who wishes to be a lawyer should be prepared to make real sacrifices to access it. But to sacrifice this much money and time for a credential that doesn’t even provide all the legal knowledge required to become a lawyer?

We talk about the brutalizing impact of law school debt on new lawyers, on their career choices, and on their mental and physical health, as well we should. What we don’t talk about enough is the absolute chilling impact of the law degree requirement on professional aspiration. Tens of thousands of people apply to North American law schools every year; hundreds of thousands don’t, not only because the cost is too high for them to risk, but also because their socio-economic circumstances cut them off from even considering a legal career.

And as I remind regulators, the law degree requirement has one other negative effect: It makes law schools the first and most exclusionary gatekeepers of the legal profession. When each year’s cohort of bar applicants shows up at the regulator’s door seeking admission, regulators should be under no illusion that this group represents all the people who want to be lawyers. It represents the well-off, privileged, surviving contingent of a much larger population of people who might have liked to be lawyers, who wished they could be lawyers, who probably would’ve made damn fine lawyers — but who never proceeded one inch past the extremely exclusive and enormously expensive gateway of the law degree.

Dropping the law degree requirement for licensure, therefore, would benefit regulators, aspiring lawyers, and even the schools themselves. But wait, you say — what do we do about the legal knowledge required to be a lawyer? How will candidates acquire this knowledge — the second condition of a competence-based system — if the law degree is not mandatory?

The answer is that it’s in the very act of dropping the law degree requirement that a thousand flowers of legal knowledge acquisition could bloom. There are myriad sources available today, and more that could easily emerge, by which aspiring lawyers could acquire legal knowledge competence required for licensure. Universities and community colleges already offer undergraduate legal studies programs and diplomas; bar associations and private providers have created an ocean of CLE and CPD content; individual lawyers could even offer basic knowledge competence instruction in their speciality areas as a side business or pro bono. The more such options arise, the more affordable and accessible these offerings will become.

But none of these options will emerge without consumer demand. So long as a law degree is required to begin the licensure process, no aspiring lawyer will take courses or programs or instructions from any other source. Only when the law school monopoly on legal knowledge provision is removed can we hope to see new choices flourish.

Of course, even with any number of new options available, arguably the best source for acquiring the legal knowledge required for law licensure will remain: law schools. Courses, seminars, and clinics in law schools are proven opportunities to learn from professional educators with decades of experience. A licensure candidate could acquire many or potentially even all of the competencies they need from a law school — by enrolling only in those courses, seminars and clinics that give them what they need in order to demonstrate their legal knowledge competence to the regulator.

To accomplish this, law schools would learn to unbundle their degree programs, making courses available standalone or in concentrations of specific subjects, in person or online. Licensure candidates would choose from a menu of courses without having to commit to the time and expense of a full law degree. Of course, the candidate might still choose to complete the full degree. So might someone who wants a legal education but doesn’t intend to become a lawyer. In every case, it would be their choice. 

So, this is my proposal for the legal profession: Develop and institute a competence-based lawyer licensing system. Decouple legal education from lawyer licensing. Specify and publish the knowledge required for entry into the profession, invite a plethora of established and novel providers of legal knowledge to teach candidates what they need, and work hard to develop a fair and accessible method by which aspiring lawyers can demonstrate their knowledge competence to admission authorities. In the result:

• The public will be better served by a defensibly and demonstrably more competent legal profession.
• Aspiring lawyers will benefit from a swifter, more affordable, and more inclusive pathway into the profession.
• New lawyers will benefit from more freedom to pursue the legal careers they want rather than the ones that will enable them to pay off mountains of debt.
• Law schools will be released from the confines of regulatory dictates and can serve whichever academic or professional purposes they choose.
• Regulators will benefit from focusing on their core licensing function of directly ensuring the competence of every new lawyer they admit to the profession.

None of these benefits will be quickly or easily realized. The disruption to the status quo in the legal profession will be immense. The organizations and institutions that benefit disproportionately from the current system — and you know who they are — will fight these notions with incredible ferocity. Changing the way we form the legal knowledge base of lawyers after more than a hundred years is an unbelievably daunting challenge.

But I absolutely believe it’s the right thing to do. And more than at any other time, it’s the right moment to do it. Let’s develop a competence-based lawyer licensing system and use it to eliminate the law degree requirement for lawyer licensure.

You might have been wondering what I’ve been up to lately, or why I’ve written so little here in the past several months. Okay, you weren’t wondering about that at all, but the answer is this: I’ve been immersed in a major project for a Canadian legal regulator that I’ve had to keep under wraps for some time, but that I can finally talk about more openly.

Back in May, I presented to the directors of the Law Society of British Columbia (the regulator of legal services and governing body for lawyers in B.C.) a report recommending a fundamental change in the lawyer licensing system in that province. Last week, the directors accepted that recommendation, setting in motion a process that I believe could eventually transform the legal profession in Canada, and maybe in the U.S. as well:

BE IT RESOLVED the Law Society develop a competence-based system for lawyer licensing in British Columbia, beginning with the development of a Competence Framework that identifies the knowledge, skills, and other attributes necessary to perform the essential duties expected of, and entrusted to, lawyers in B.C., as well as the threshold levels at which these competencies should be performed at the point of licensure.

That resolution was contained in this note to the law society directors (“Benchers”) from its Lawyer Development Task Force. It was based upon my 80-page, 27,000-word report to the Task Force titled, “A Competence-Based System For Lawyer Licensing in British Columbia”, which is now publicly available on the law society’s website. I invite you to click through and read it, because I think it really matters for the future of lawyer licensing — and not just in British Columbia.

Why do I think this report is so important? Because it should change the process by which people in B.C. become lawyers — abandoning an archaic, opaque, and exclusionary credentials-based system, and embracing a modern, transparent, competence-based system that will increase public and professional confidence in the ability of lawyers to do their jobs from Day One. It will bring lawyer licensing into line with other professions’ admission systems, improve the quality of service clients receive, and go a long way towards defeating “impostor syndrome” among new lawyers.

That’s a tall order and a significant claim, and I’ll go into some detail to explain it. But a few preliminary points first:

• The law society resolved to develop a competence-based lawyer licensing system in B.C., but it will be several years before the first cohort of differently licensed lawyers enters the profession. Designing a competence framework for lawyers is a major undertaking, all the more challenging given the rapid shifts in our profession and in our society. Building a licensing process around that framework is another huge job. This will take a while.
• My report made just one formal recommendation (above), which the directors accepted. But the report went on to point out several clear implications of introducing a competence-based system, and it’s these implications that I think will bring about extraordinary change in the licensing process. The directors decided to leave these implications to the Task Force and the framework developers to sort out, which is proper. But I’ll explain them in some detail.
• Competence-based licensing is not entirely novel. The Solicitors’ Regulation Authority of England & Wales, a direct inspiration for my work in B.C., has a competence-based licensing system. The Law Society of New Brunswick recently introduced a competency profile with its new bar admission program. CPLED PREP, the bar admission program in four Canadian provinces, uses a limited competency framework.
• My recommended approach in B.C. goes further, however. Among other things, it does not assume that a law school degree is an acceptable proxy for entry-level competence in legal knowledge, and it emphasizes socially aware professional responsibility as a core competence for new calls. No US state uses anything like this (though IAALS’s Building a Better Bar project ably showed how), but I think this report has wide-reaching and immediate application to the controversies tearing apart the American bar admission process.

So, all of that said, here’s a brief summary of why I felt a new lawyer licensing system was necessary in B.C. and elsewhere, what the new system will consist of, why it will usher in several positive developments for lawyers and clients, and what a basic “competence framework for lawyer licensure” would look like.

1. Expired Credentials. The traditional requirements for a law license in Canada are obtaining a law school degree or its equivalent, passing a bar admission program, and completing an articling term. (In the US, it’s just the degree and passing a bar exam.) All these requirements, to a greater or lesser degree, are basically credentials — certifications by a third party that the candidate has completed a task or run a gauntlet overseen by this separate entity to which the regulator has essentially delegated the gatekeeping function. The regulator accepts completion of these credentials as a proxy for the competence to practise law, without directly assessing the candidate’s overall fitness to practise.

2. Unidentified Competence. Upon what evidentiary basis does the regulator extend this proxy acceptance? How do we know that a law degree, a bar admission course, and a term of supervised practice collectively constitute an airtight case for competence? We don’t. Apart from the notable exceptions above, no regulator can identify the precise knowledge, skills, and personal attributes someone must demonstrably possess — and to what level of proficiency — in order to become a lawyer. We don’t have a detailed target definition of entry-level lawyer competence to which each of these credentials providers can refer when designing their programs or carrying out their responsibilities.

3. Professional Consequences. Everyone suffers from our failure to design an established competence profile for lawyer licensing, but none more so than new lawyers themselves. Admitted to the practice of law unaware of what qualifies them for the role, frequently missing key elements of competence, they often feel overwhelmed and deeply anxious. Law firm employers, too, routinely complain that most new hires are unready to practise law and require basic training just to bring them up to a level of minimum ability. Clients of new solos or new lawyers who lack good workplace support (and there’s a lot of them) will receive sub-competent service and might never know it. But the damage extends further, to the profession itself.

4. Legitimacy Consequences. It’s frankly kind of crazy that most jurisdictions have no official definition of entry-level lawyer competence. If a member of the public asks a regulator, “How do you know this lawyer is qualified to serve me?”, that person wants to know what constitutes a competent lawyer and how the regulator satisfied itself that this person is one. It undermines the profession’s claim to merit self-governance if the regulator can’t answer the simplest question about the standards of quality control of new lawyers — especially when, in practical terms, a lawyer once licensed is a lawyer forever (short of gross misconduct), making the point of professional entry absolutely critical.

5. Competence Frameworks. Regulators that can answer that question do so because they have identified in detail the multi-faceted profile of a Day One lawyer in their jurisdiction. Following lengthy study and extensive consultation with myriad stakeholders, they created a framework of overall competence in legal knowledge, ethical awareness, lawyer skills, and professional skills that reflected what a member of the public had the right to expect from a lawyer on their first day in practice. But they also were careful not to make this framework a “wish list” of ideal lawyer attributes, recognizing that “Day One” competence, while needing to meet minimum standards, ought not to be any higher than that.

6. Licensure Validity. In order to be considered valid and just, the elements of professional licensure competence must be (1) knowable by candidates, (2) accessible to candidates, and (3) demonstrable to the licensor. That is, licensure candidates must be able to easily find out what the competencies are, be able to acquire those competencies in a fair and accessible manner, and be able to show the licensing authority that they possess the competencies. Failure by the regulator to ensure these conditions creates barriers to professional entry — a person who might wish to be a lawyer cannot do so because they couldn’t discover the competencies, couldn’t afford to obtain them, or couldn’t equitably show the regulator that they possess them. The competence framework must be constructed with these three requirements in mind.

7. Competence “Starter Kit”. I was very reluctant to give the law society my opinion on the proper constituent elements of entry-level competence in their province. That decision has to be made by experts with much more experience and proficiency than me, in consultation with a very wide group of stakeholders. But I was invited to consider that there would be value in giving the law society a sort of “starter kit” of competencies in a suggested framework, in order to guide the earliest stages of the consultation process and give the directors a sense of what such a framework might look like. So after extensive research and reflection, I came up with the following:

1. Knowledge of the law

1. Administrative law and procedure
2. Business and corporate law and procedure
3. Civil litigation, procedure, and remedies
4. Contract law and drafting
5. Constitutional law
6. Criminal law, procedure, and sentencing
7. Evidence
8. Family law and procedure
9. Legislative, regulatory, and judicial systems
10. Property and tenancy law and procedure
11. Torts
12. Wills, estates, and trust law and procedure

2. Understanding of a lawyer’s professional responsibilities

1. Client confidentiality
2. Client trust accounts
3. Conflicts of interest
4. Fiduciary duties
5. Select other aspects of the Code of Professional Conduct

3. The skills of a lawyer

1. Gather relevant facts through interviews and research
2. Carry out legal research
3. Conduct due diligence
4. Draft essential legal documents
5. Solve problems using legal knowledge and analysis
6. Help negotiate solutions and resolve disputes
7. Advocate for a client’s position
8. Provide legal advice to clients
9. Use law practice technology
10. Fulfill the basic business and professional requirements of a private law practice

4. The skills of a professional

1. Establish, maintain, and conclude a client relationship
2. Establish and maintain respectful and collaborative relationships with colleagues and others
3. Communicate accurately and concisely, verbally and in writing, to different audiences
4. Understand and use information management systems effectively
5. Understand and use financial management systems effectively
6. Manage projects and responsibilities to ensure they are completed efficiently, on time, and to an appropriate professional standard
7. Organize one’s time and activities to ensure the prompt and successful fulfilment of one’s obligations

This all sounds sensible, right? There should be an official profile of a competent entry-level lawyer, and it should be used as the basis of a fair and accessible lawyer licensing system. That was the thrust of my single recommendation to the Law Society of B.C., and that’s what the regulator has now resolved to do.

But … that single recommendation arrived less than a third of the way through my report. The balance of the report went on for another 40-odd pages, because you don’t just recommend a fundamental change to professional licensure and walk away. I went on at some length to advise the law society: “Hey, listen: If you go down this path, you need to understand that a whole lot about how you educate, train, and license lawyers in this province is going to change, in ways that will shake the profession and maybe even transform the legal sector itself.”

In a follow-up post next week, I’ll describe the other changes to British Columbia’s licensing system that I can foresee arising from this development, changes that will be noticed and maybe copied by other jurisdictions — including one that likely will make some law schools very unhappy. And in a post subsequent to that, I’ll lay out my vision for an entirely new approach to lawyer licensure that I think every jurisdiction, including every US state, should consider and implement. There’s a lot to unpack, and I’m looking forward to the opportunity to show you what’s here.

Although this is not a simple undertaking, I’m optimistic that the example of the SRA’s Statement of Solicitor Competence, as well as the fine work done in New Brunswick and the CPLED jurisdictions, will make the path to competence-based licensure in B.C. swifter and surer than it has been anywhere else yet. And that, in turn, should hasten the day when every lawyer in Canada (and eventually the US) is admitted not on the basis of having jumped through a bunch of longstanding, exclusionary, and inadequate hoops, but on the basis of demonstrated competence to practise law. The public in general, and clients in particular, deserve better from our profession.

I’ll give the last word to an excerpt from the report’s introduction:

The last twenty years have seen an astonishing amount of change throughout the legal services sector, in terms of public demands, client needs, lawyer specialization, law firm business models, technological capabilities, and justice system access. The last two years of pandemic life have transformed parts of our society in ways that would have seemed inconceivable in 2019. The future promises us only more change — faster, more disruptive, and more transformational.

We cannot continue to form lawyers — to educate, train, and license them — the same way we did fifty years ago, twenty years ago, or even two years ago. It is a disservice to our profession and the public we serve to pretend otherwise, or to merely make incremental, uncontroversial tweaks to an outdated and increasingly unfit system. We cannot continue to prepare lawyers for law practice in the 20th century nearly a quarter of the way into the twenty-first.