Is now the time for Compulsory Continuing Education?
Robert W. McDiarmid, QC
Data collected from insurance claims and complaints tells us that when lawyers have problems, those problems rarely result from lack of knowledge of substantive law. That suggests that lawyers are generally knowledgeable about the law, and practise competently. A recent survey carried out by staff at the Law Society of Upper Canada (LSUC), however, has concluded that our profession is the worst among the senior professions when it comes to “quality assurance” and “quality improvement,” the in-vogue terms for demonstrably being up-to-date in the latest professional knowledge. Has the time come for Canadian law societies to require continuing education as a condition of being permitted to practise? There are strong arguments suggesting the answer is “yes.”
When a lawyer makes a mistake, as will inevitably happen, questions arise about that lawyer’s knowledge. The fact that the mistake probably had nothing to do with lack of recent upgrading is to some extent irrelevant; res ipsa loquitur may be dead in the courts, but not in the court of public opinion. And when the spotlight shifts from the lawyer who made the mistake to the law society that licensed the lawyer to practise, we need an effective response.
If we are compared to other professions (accounting, medicine and dentistry are obvious ones), we fail miserably. Those professions all require a certain number of continuing education hours per year to retain a professional licence. So do the vast majority of US state bar associations. Our inability to provide an effective response jeopardizes our self-governance, all the more so because this is, in many ways, an objective criterion, easy for complainants to point to.
While being able to demonstrate performance may on its own be a sufficient reason, it certainly is not the only one. Lawyers in BC are now able to practise in other common law provinces under the national mobility agreement. Clients are also coming to BC from these other provinces, in large numbers. They are seeking advice respecting legal issues both here and in their former home province. Are we equipped to serve them competently?
Do most BC lawyers know, for instance, that Alberta has a general limitation period of two years, even in contract? Do most BC lawyers understand the conveyancing system in Ontario? Are all Saskatchewan wills valid in BC? These are pretty basic matters, but are examples of the kind of knowledge we need to practise competently throughout the country, which is what our client base, even in small firms and small towns, will require in the near future.
Somewhat paradoxically, as large firms create specialist lawyers within their downtown office towers, small firm lawyers need to broaden their knowledge base to properly serve their clients, at least to the point of being able to recognize new types of legal problems and make the proper referrals.
The excuse that attaining the requisite number of hours is too onerous a burden on some firms is no longer valid. Modern methods of delivering courses online will permit lawyers in Smithers access to courses just as easily and cheaply as in downtown Vancouver.
Both the public and our profession are likely to benefit. If we follow the American Bar Association model, in which the ABA certifies course providers, it is likely that Canadian Bar association section meetings will qualify for providing requisite credits. The same goes for Trial Lawyers Association of BC sessions. Both those groups provide valuable resources to their members for the purpose of assisting them to better serve their clients, but neither group has the ability to mandate membership. Strengthening and increasing their membership aids both lawyers and their clients.
The Lawyer Education Task Force at the Law Society is currently discussing this topic. When the Federation of Law Societies of Canada holds its annual meeting in Vancouver this November, quality assurance/quality improvement is one of the key topics. The 14 law societies within the Federation will undoubtedly be debating whether the time has come for mandatory continuing education for Canadian lawyers. I suspect the answer will be in the affirmative.