I don’t imagine that Britney Spears has often thought about the Canadian legal profession. But if she did, she might have been forgiven for having been inspired to name her second album by watching us in action. To paraphrase Abba Eban, we never seem to miss an opportunity to miss an opportunity — an opportunity, that is, to chart a new course in the relationship between the practising arm of the profession and the teaching one.
I’m hardly the first to have called for a new concord between bar and academy (though just last month I did so). But for whatever reason, this seems to be beyond our reach. Let me offer four examples:
Exhibit 1 was the process by which the Federation of Law Societies of Canada introduced the Approved Canadian Common Law Degree. I’ve written before that the responsibility for the unconstructive process by which this was accomplished lay on both sides. But it’s hard to imagine clearer evidence of a broken relationship than that. If the law schools and the federation had been in a marriage, no judge in the land would have denied an application under s. 8 of the Divorce Act.
Exhibit 2 was a proposal that was floated briefly by the FLSC a few years ago to make wills and estates a compulsory element of the approved degree. Leaving aside the question of whether this was a good idea or not (though one wonders what percentage of the bar today actually draws wills), what was startling is that the proposal was dreamt up without any input whatever from the law schools. Fortunately, it died an early death.
Exhibit 3 was a proposal last fall to introduce an American-style national bar examination. Folks I talked to were quick to deny that this was what it was, but it was clear that that’s how it would have turned out.
Now, I happen to believe that it would be a step forward to have a national admission standard. How can we have a national mobility scheme without one? But, equally, how on earth could the profession have thought that it would be a sensible thing to start serious discussions about it without engaging with those whose craft it is to teach law? And please, Lord, whatever else we do, let’s not borrow what is perhaps the worst feature of American legal education!
Formally, this proposal still remains on the table, but — blessedly — the signs are that it, too, will die on the order paper.
Exhibit 4 is fresh off the presses. A few weeks ago, the professional development and competence committee of the Law Society of Upper Canada issued a report in which it recommended to the benchers that the articling period in Ontario be shortened to nine months. And if, the report continued, students had taken experiential learning courses in law school (without actually telling us what it understood was involved in the expression “experiential learning”), another three months could be sawn off.
Once again, the proposal was developed without so much as even a courtesy call to the Ontario law deans. To their credit, after sensing some of the blowback, the treasurer and benchers decided to postpone consideration of the proposal until at least next fall.
The point is not to gainsay any of the ideas. Not all of my fellow law deans will agree with me, but I personally have sympathy for them (except the one to mandate wills as a compulsory course in the JD. That was about as silly as one could imagine). I do want us to work towards having a truly Canadian legal profession, rather than having 13 regional professions as we do now. So I view the National Mobility Agreements as representing a tremendous step forward.
And to me, it follows logically that a national admission standard is a next step.
Likewise, I think that a serious conversation about the future of articling is long overdue. Its defects are manifest to even the most casual observer, so don’t we owe it to ourselves to wonder how we could improve it — or even to consider whether we might replace it with something better? But how on earth the practising bar can think that it can come up with constructive solutions to the articling issue without engaging from the outset with the academy is beyond me.
I know and respect many of the proponents of these changes. A number of them are friends. I can say with complete conviction that the only thing motivating them was a sense of urgency. They are lawyers, so they know that, if given half a chance, “lawyers will just talk, and talk, and talk.” I get that. But as my late grandmother used to say, haste makes waste.
We only need ask ourselves whether the approach thus far has borne positive fruit. Is there a renewed sense of shared purpose among law professors and practising lawyers? Are we closer to fixing articling? Are we nearer to having a national admission standard? No, no, and no.
On the contrary, the institutional gulf of understanding separating us is in some ways actually now wider than it was. This was brought home to me by one of my colleagues here in Calgary. Like me, she practised law for many years before joining the academy, so she is hardly a foe of the bar. When I was talking at our last faculty meeting about the recent Ontario proposal to abridge articling, she asked with a blend of incredulity and sarcasm, “Do these guys never learn?”
We need to change. But we need to be deliberate in it. And we need to know that our objective can’t be just to fiddle with substance. That’s the small stuff. No — we need to think about big change: cultural and relational change.
That’s the kind of change that will really represent an investment for the future. The process will be messy, and it will take much more patience than many of us are inclined to want to give it. But the bottom line is that we’ll either solve the problems of our profession together or we won’t solve them at all. And I’ve got four exhibits to prove it.