The case of Sidney Green against the Law Society of Manitoba made its way through the legal system all the way to the Supreme Court of Canada. The issue in Green v. Law Society of Manitoba (at least as framed by his legal counsel) was whether Green could be suspended from the practice of law on the grounds that he had violated the law society’s rules by not fulfilling the requirements to attend available lectures as part of the society's continuing professional development program. It was argued on his behalf that the rules mandating suspension for non-attendance were invalid and illegal, because there was no basis for the rules in the Law Society Act. The Supreme Court concluded that the rules were reasonable. Dissenting reasons concluded the rules were invalid.
So the litigation has ended. But another issue still exists: namely, is there any point in forcing lawyers to attend classes on subjects that are of no interest and no value?
I happen to believe that CPD is vitally important for some professions. When an individual sustains a serious stroke, my hope for that person is that they will receive treatment from a skilled physician who will apply the latest treatment techniques available. I hope the physician has attended the latest sessions of CPD relative to the specialty involved.
It is not just medical doctors. I am pleased other professions have developed CPD programs whether the matter relates to calculating taxes, building bridges or extracting teeth.
But it must be understood that CPD is more important — and more effective — in some professions than in others. My guess is that CPD is less important and less effective for lawyers than for almost all other professions. Most of the things lawyers undertake on behalf of clients depend on the lawyer's experience, initiative and skill. It also depends on the lawyer's good sense not to accept a retainer where the matter is outside the lawyer's level of skill and experience.
So why have we reached a point where the Law Society of Manitoba, emulating other law societies across Canada, creates a CPD program enforced by its rules that is mandatory and imposes automatic suspension on those who refuse or fall short of meeting the requirements?
It is not my intention to re-litigate the case of Sidney Green. His suspension was upheld by the courts of Manitoba, and then by the Supreme Court of Canada, in spite of the fact that the suspension was automatic and without a right to a hearing. My position is that CPD for lawyers is a colossal waste of time and not worth the cost and administrative time involved.
One might ask why provincial law societies established CPD programs for their lawyers in the first place. The answer appears to be fear that complaints against lawyers have reached a level that provincial governments might appoint a greater number of lay members to become benchers, thus threatening the treasured self- governing of the profession.
However, there will always be lawyers who end up in trouble for incompetence or dishonesty, just as there are incompetent and dishonest people in every profession. CPD is not the magical elixir. CPD does absolutely nothing to dissuade the dishonest lawyer and, in my opinion, next to nothing to address competency.
That is not to say that lawyers should not pursue self-improvement. The Pitblado Lecture series in Manitoba was in place and well attended for more than 50 years, before it was made part of CPD and worth seven of the mandatory 20 hours in one fell swoop, thus assuring full attendance no matter what the topic. The cancelation of CPD in the form of requiring attendance at a number of mind-numbing presentations would do no harm. That was recognized by the Law Society of Alberta, which stood apart from the rush of Canadian law societies to force attendance at nonsense presentations. The CPD program in that province requires lawyers to develop and declare a CPD plan for themselves for the coming year. The intended program is to be submitted for approval. At year's end, a further report is required to indicate fulfilment of the plan. The program could be anything from pro bono work for a charitable agency to reading volume 17 of Halsbury's Laws of England to attending four hearings of the Court of Appeal dealing with sentence appeals in criminal cases.
Alberta’s law society never did have a mandatory program of attending lectures or participating in webinars. In England, where this entire nonsense started, the Solicitors Regulation Authority has backed away from the model most Canadian law societies have adopted and reverted to a CPD program comparable to that in Alberta. That action was taken because the conclusion was reached that the model of mandatory lectures was simply a useless but expensive waste of time.
The various law societies should reconsider their positions in light of a less autocratic, more effective and less expensive way to meet the requirements of a personalized CPD program.