New developments in legal education and accreditation
John J.L. Hunter, QC
One of the pleasant responsibilities of the President of our Law Society is to welcome new lawyers to the British Columbia Bar. I had the pleasure of doing so most recently on September 26.
The call ceremony is a tangible reminder that one of the primary responsibilities of any law society in Canada is the accreditation of new lawyers. This is a significant responsibility because of the heavy reliance the public places on the competence, skills and ethics of the legal profession.
As all of us are aware, the accreditation of lawyers in Canada involves three elements — graduation from an approved law school, successful completion of a bar admission program and a period of articles to a member of the Bar. Unlike jurisdictions such as Australia and England and Wales, Canada has never had a national standard for law school programs. We have 16 common law schools that follow similar programs, particularly in first year, but most law societies (including ours) have never attempted to articulate what competencies they expect graduates of a Canadian law school to possess.
The exception is Ontario, which in 1957 set out a required list of courses and course offerings. The list was revised in 1969 but has not been reviewed since. By contrast, in the intervening years similar jurisdictions — such as Australia, England and Wales, and New Zealand — have set out a list of courses graduates must have taken for admission to their Bars. In the United States, the American Bar Association has for many years had a detailed accreditation process for law schools.
In the past couple of years, a number of events have converged to invite a reconsideration of our accreditation process, particularly the absence of any articulated standard by which the law societies accept law degrees as meeting the academic requirement for the practice of law.
The first of these is the growing number of candidates for admission to our Bar who have been trained outside Canada. This includes lawyers who have practised in countries with very different legal systems than ours, lawyers who have practised in similar common law jurisdictions, and candidates who have not practised at all but have degrees from law schools in common law jurisdictions such as England, Australia and India. Several years ago the Federation of Law Societies established a National Committee of Accreditation to assess the qualifications of such foreign-trained applicants, but that committee is under increasing strain as the number of applicants increases each year and the standard against which their education is to be measured remains unarticulated.
In addition, several universities in Ontario have indicated an interest in setting up law schools and have asked the NCA what standards they would have to meet for their degrees to be recognized in Ontario and by extension through our National Mobility Agreement, throughout the common law provinces of Canada. Although the Ontario Government has recently indicated that they would not fund new law schools at the present time, the fact that the law societies of Canada are unable to advise a university of the standards that must be met for acceptance of their degree seems unsatisfactory.
To underline the unsatisfactory nature of our lack of articulated standards, several provinces in Canada have recently adopted legislation concerning fair access to the professions that requires that the professional accreditation process be demonstrably transparent, fair, objective and impartial. Whether or not such legislation would apply to the legal profession in these provinces, it is difficult to see how accreditation processes that did not meet these benign requirements could be defended.
At the same time, several important studies have been released in the past 15 months calling for greater integration of the theoretical and the practical in law school programs, as well as greater emphasis on professional responsibility instruction.
The most influential of these is likely to be the report of the Carnegie Foundation for the Advancement of Teaching entitled Educating Lawyers: Preparation for the Practice of Law. As recently as three months ago, a committee of the ABA's Section on Legal Education and Admission to the Bar recommended reconsideration of the ABA accreditation process to address the recommendations of the Carnegie report.
The Federation of Law Societies of Canada has responded to these challenges by establishing a Task Force to review the standards for approval of the law school degree. I am chairing the Task Force, which includes representatives from 8 of the 10 provincial law societies.
The Task Force has just released a Consultation Paper (PDF: 2.45 MB) and is inviting comment from the profession, from the legal academy and from any interested observer on a series of questions related to the standards that graduates of law schools ought reasonably to be expected to meet when they present themselves to our law societies for enrolment in our bar admission programs. The intent is not to be overly prescriptive, but to work collaboratively with law schools to ensure that we all do our part to ensure, to the greatest extent possible, that lawyers we accredit have the requisite knowledge, skill and ethical standards to meet the needs of the public who require our services.
I would encourage all of you who have an interest in this important enterprise to take a few moments to review the Consultation Paper and provide us with your views. We are hoping to gather comments until mid-December and then to produce a final report by next spring for presentation to the Federation Council.
This is not a project that has been undertaken before. We need your assistance in getting it right. I hope that British Columbia lawyers will take an interest in helping us achieve the best accreditation model we can devise for the benefit of the public we serve.