In the coming year, the Lawyer Education Task Force will begin exploring five areas of possible educational reform — 1) improving access to education resources, 2) ensuring that lawyers acquire practice management skills, 3) introducing limited licensing for lawyers who are newly called or inexperienced in certain areas of practice, 4) introducing a program of specialization and 5) introducing mandatory continuing legal education. “Some of the policy objectives outlined are controversial and may represent a departure from the current programs that are more typical of law societies,” the Task Force told the Benchers in December. “If implemented, they may also result in a departure from the current model of practice under which lawyers in the province operate.” At this early stage, the Benchers have not approved any reforms, but have given the go-ahead for further study and consultation in the profession.
Lawyer Education Task Force contemplates new reforms
The Lawyer Education Task Force will begin considering new reforms to support and enhance the competency of BC lawyers, following Bencher approval of the study in December.
Five key areas of reform are under consideration:
- Improving lawyer access to educational resources;
- Ensuring that lawyers acquire practice management skills, such as by requiring or encouraging that they complete courses in some circumstances;
- Ensuring that lawyers who are newly called or inexperienced in some areas of practice do not engage in activities beyond their abilities, through a program of limited licensing;
- Allowing for a higher level of knowledge and practice capabilities of lawyers, and assisting the public to easily identify such lawyers, through a program of specialization;
- Supporting and enhancing the competency of lawyers in providing legal advice and services, through a mandatory continuing legal education program.
The Benchers have not approved any of these approaches, but have called on the Lawyer Education Task Force, chaired by Cariboo Bencher Patricia Schmit, QC, to carry out a study and to bring these issues back for later consideration. If ultimately pursued, some options for reform would have an impact on lawyers’ call and admission requirements and on the requirements for the transfer to BC of other Canadian lawyers under the national mobility agreement. For that reason, the Task Force recommends opening the dialogue with other provinces through the Federation of Law Societies as needed.
Improved access to educational resources
Both the Task Force and the Benchers agree that improving lawyer access to educational resources is a priority and merits immediate attention.
Many BC lawyers now face geographical or financial constraints that make attending continuing legal education courses difficult. Another of the Task Force’s concerns is that some important courses, such as those on professional responsibility, are not in high demand and therefore only rarely offered because the cost is prohibitive.
The Law Society could have a role to play in filling gaps that now exist in the market, the Task Force believes. In recent years, the Society has, for example, helped to fund the development of certain online learning technologies and provided bursaries to make education more accessible to lawyers. The Task Force wishes to consider such initiatives more broadly and determine whether the Law Society itself should develop courses and materials for lawyers.
Lawyer education on practice management issues
In reporting to the Benchers in December, the Task Force stated that “a solid ability to manage one’s practice is a key component of a lawyer’s ability to practise law competently and effectively.”
While keeping up with changes in the law is important, it is equally important for lawyers to have good practice management skills and an understanding of professional responsibility issues.
The Task Force intends to explore such options as:
- requiring as a condition of admission that students have taken a course in professional responsibility, practice management and/or trust accounting over a period of time, over and above what is part of PLTC;
- requiring lawyers opening new practices to take relevant courses, and perhaps pass a test;
- requiring lawyers to verify that at least one or some specific number of lawyers in the firm have taken a requisite management and/or accounting course;
- requiring lawyers generally to complete such courses over a designated period.
Limited licensing of new or inexperienced lawyers
The Task Force has flagged that, while lawyers are permitted to do “anything and everything” once called to the bar, prudence dictates that they not tackle complex legal matters immediately.
The issue is whether a limited licensing scheme should be considered on the premise that there are some things junior lawyers are currently permitted to do that in fact may warrant more than entry-level education. Likewise, other lawyers may be inexperienced in some areas, such as practice management and trust accounting.
“…The Benchers should consider requiring a lawyer to pass an accounting course prior to allowing him or her to operate a trust account,” the Task Force noted. “Perhaps, in the public interest, a lawyer should be required to pass a course on operating a sole practice prior to opening one. Perhaps a lawyer, on being called to the bar, should be given only a limited practice certificate until certain criteria or skills have been evaluated.”
Issues marked for further exploration include:
- requiring licensing before a lawyer becomes a sole practitioner;
- requiring licensing before a lawyer operates a trust account (or becomes a signatory to a trust account);
- giving newly called lawyers a licence that permits only certain activities or requires the supervision of some activities.
Section 14 of the Legal Profession Act permits the Benchers to establish categories of members and determine the rights and privileges associated with each, which may allow for limited licensing.
While the issue demands further study, the Task Force acknowledges that BC lawyers may not embrace the idea. The impact on other Canadian lawyers transferring to BC under the national mobility agreement must also be taken into account.
The Law Society has examined lawyer specialization as a reform issue on a number of occasions over the past 35 years. Specialization could be considered one way of giving the public better access to lawyers with particular competencies, requiring objective standards for the title of “specialist” and possibly decreasing the unit cost of legal services to the consumer.
While the cost of setting credentialling standards for specialization may prove prohibitive in BC alone, the Task Force observes that such a program may be possible on a regional or national basis.
The Task Force plans to explore the possibility that practice as a barrister before the courts and practice as a solicitor be considered specialist areas, and that lawyers could qualify for one or both areas. While recognizing that this approach would be seen as dividing the BC bar and is therefore controversial, it merits consideration, in the view of the Task Force. There may be good reason to require lawyers who want to practise before the courts to obtain certain advocacy skills since it appears there are now fewer opportunities for junior lawyers to do so under the tutelage of a senior lawyer.
Mandatory continuing legal education
On recommendation of the Task Force in the spring of 2004, the Benchers approved a requirement for BC lawyers to report on their professional development activities and self-study. The Benchers also now encourage each practising lawyer in BC to complete a minimum of 12 hours of coursework (the equivalent of two full course days) and 50 hours of self-study each year. The targets are set as minimum expectations for the profession and are not mandatory.
While only the reporting of continuing legal education activities is required at present, the issue of mandatory continuing legal education remains of interest to the Task Force.
“The arguments in favour of and against mandatory continuing legal education have been debated over many years,” the Task Force told the Benchers in December. “…[We] consider that mandatory continuing legal education is one way of demonstrating to the public that the Law Society is serious about supporting and enhancing the competence of its members.”
The Task Force said that it was mindful of public perception. Law is one of the few professions in BC without mandatory continuing education, and continuing legal education is mandatory for lawyers in 40 American states.
While it is not clear that continuing legal education needs to be mandatory for reasons of lawyer competence, ongoing education is beneficial for all lawyers. A mandatory program could likely increase the number and variety of courses offered each year, in accordance with the experience in the United States.
A mandatory program could be based on different options:
- mandatory continuing legal education for all lawyers, based on a requisite number of credit hours, with lawyers permitted to choose their courses;
- a mandatory program for all lawyers, with the Law Society prescribing some or all of the courses or topics;
- a mandatory program for some lawyers, for example those in their first five years of practice, those who wish to become sole practitioners, those practising in high risk areas or those who have been the subject of a number of claims or complaints.
Lawyers wishing further information or to put forward comments at this preliminary stage of the Lawyer Education Task Force study are invited to contact the Task Force c/o Alan Treleaven, Director of Education and Practice by email to email@example.com or through the Law Society office.