Sidney Green’s fight with the Manitoba Law Society has become the most expensive continuing education course that he never took.
Green, called to the bar in 1955 — when Louis St-Laurent was prime minister — will be in the Supreme Court of Canada in early November, challenging the Law Society of Manitoba’s power to suspend him because he did not complete 12 hours of mandatory continuing professional development.
“We are not opposed to continuing legal education,” says Green, 87, a former bencher and NDP cabinet minister in the Ed Schreyer government. To the contrary, over his 60-plus years as a lawyer, Green has both attended and taught such sessions.
What he strenuously objects to is the mandatory nature of it and what he says is the lack of power under the Manitoba Legal Professions Act to force him to go to courses that “were of no value to me.”
“I don’t believe the Manitoba legislation permits them to suspend me for non-attendance.”
So far, two courts have disagreed, finding that provisions of the LPA gave the regulator power to impose mandatory CPD rules and administratively suspend lawyers for non-compliance.
“They are suspending somebody who has proved his competence and proved his good conduct, and they have done it without giving me a hearing,” says Green, who has an unblemished insurance record and has appeared in the Supreme Court of Canada a number of times over his long and storied career. His suspension is currently in abeyance while the litigation ensues.
Charles Huband, a former Manitoba Court of Appeal judge and law school classmate, is Green’s lawyer.
“What concerns us is the penalty for not abiding by the rule,” says Huband. “This is an automatic suspension without hearing and without appeal.”
The case is a classic statutory interpretation fight. Huband argues that the act should be narrowly construed. He notes that nowhere does it say the law society can implement mandatory CPD, nor does it grant the power to suspend someone for failing to meet the requirement. The lack of hearing for an administrative suspension, he argues, also breaches natural justice.
There are limited situations in the act in which a suspension can be imposed, such as incompetence, professional misconduct or conduct unbecoming.
However, those situations trigger an investigation and hearing, while breaching CPD requirements normally doesn’t.
Huband raises the maxim of expressio unius est exclusio alterius — to express one thing is to exclude another. So, by setting out suspensions for incompetence and professional misconduct, the legislature impliedly excluded suspension for other breaches.
The Law Society says the act clearly provides it with the power to institute mandatory CPD and suspend lawyers who fail to meet that standard, a part of its public duty under the law. It says that the maxim doesn’t apply.
The Federation of Law Societies, an intervener, said the ruling will have a “national impact” and legislation governing lawyers “should be given a broad interpretation to authorize administrative suspension as a necessary incident of law society regulatory jurisdiction.”
The federation warns that “if the Court were to adopt a narrow construction of general enabling provisions in the law society statues, and require specific wording before a power to impose administrative suspensions is found, it would undermine” the principles of public trust underpinning self-regulation.
The fight reaches the Supreme Court at a time when England’s Solicitors Regulation Authority has scrapped its mandatory 16-hours-a-year CPD program, rolling out a new framework starting in November that it calls Training for Tomorrow. It focuses on outcomes, rather than process, and is directed at “continuing competence.”
Lawyers make “an annual declaration that they have considered their training needs and taken measures to maintain their competence.” They must abide by a competence statement set out by the SRA.
Green says many lawyers have expressed support for his fight.
He says that if the court rules against him, he’s resigned to his fate. “If I lose, I will be kicked out. I won’t go to the lecture. It will be the most honourable way to leave the legal profession.”
That’s too bad, because Sidney Green is one of the good ones. I’m rooting for him, as I suspect many others are, not because we oppose learning but because we oppose needless red tape and bureaucracy.
The nanny state mandating that you learn is a bit heavy-handed.
In fact, a 2003 study in the U.S. nursing profession found that “no significant or practically relevant differences were found in the amount of growth experienced by nurses . . . with and without CE mandates.”
If you ask me, given the hodgepodge of conflicting regimes among legal regulators, the Federation of Law Societies’ time is better spent studying the merits of mandatory CPD across the profession, rather than intervening in Sidney Green’s fight. That’s particularly so given that the U.K. has abandoned ship on the practice.
Mandating professional development isn’t something you focus on in a two-hour course — it’s a lifetime commitment. Just ask Sidney Green. He’s been the model lawyer for 60 years.
Jim Middlemiss is legal writer and principal at WebNewsManagement.com.