Legal scholars are voicing concerns with a new set of recommendations on national academic standards for entry into bar admissions programs contained in a recent report from a Federation of Law Societies of Canada task force.
The final report of the Task Force on the Canadian Common Law Degree, charged with reviewing existing academic requirements for entry to bar admission programs, came out late last month. It recommends that law societies in common-law jurisdictions adopt a uniform national requirement for entry to their bar admission programs.
The reason, it says, is to ensure that those seeking entry “have demonstrated certain essential and predefined competencies in the academic portion of their legal education.”
Task force chairman John Hunter, past president of the Law Society of British Columbia, explains that there were several catalysts that led it to look into the issue of a national standard. These included the application for a law school by Lakehead University as well as the increase in the number of internationally trained candidates for bar admission.
Included in those national standards are competency requirements relating to skills, problem solving, legal research, oral and written communication, and substantive knowledge in the foundations of law. In terms of compliance, the task-force report recommends law schools submit a standardized annual report from the dean.
While the task force, made up of eight benchers and three staff members from law societies across the country, recommends the federation leave it to law schools to determine how their graduates accomplish the competencies, it nevertheless suggests the creation of a stand-alone course dedicated to ethics and professionalism.
However, several members of legal academia have expressed concern with some of the recommendations as well as the process involved in reaching this stage.
Harry Arthurs, a professor and former dean at Osgoode Hall Law School, says that while there are lots of interesting elements to the report, he finds it odd that the federation “took it upon themselves to lay down what law schools should be teaching and how they should use their resources and what their job is in general.
“Law societies, much less the federation, have no statutory power to tell law schools what to teach or to what end they should spend their scarce resources,” he says.
“I would have thought that if the job of this task force had that as an ultimate goal . . . then they would have said to the law schools, ‘This has to be a co-operative exercise,’” he adds.
While Arthurs notes that the law society has the right to say who it will admit to practice, “they certainly can’t say to law schools, ‘You are going to teach legal ethics, you are going to teach certain skills competencies, and you are going to file a report annually which provides us with detailed information to demonstrate that you’re doing that.’”
He explains that having to teach a compulsory course on ethics would require hiring a new person, as would the creation of an annual report. Otherwise, existing faculty would have to step in.
“I think what we have tried to do is to respect both the autonomy of law schools and their considerable expertise in legal education but I think our primary objective has been our own responsibility as regulators to ensure that we have a set of standards for the academic portion of the preparation that’s appropriate,” says Hunter.
Alice Woolley, a professor at the University of Calgary Faculty of Law, says she was pleased to see that on the subject of competencies, the task force moved toward greater generality.
“They put more emphasis on ensuring law schools have the appropriate resources to discharge their mandates, and those are things that had come up from some of the comments they received. I think they’ve responded really appropriately to that.”
However, one exception involves the section on the course in legal ethics, which in its final version contains a detailed list of subject matter it should cover.
“This new direction by the task force is most unfortunate. It is inconsistent with the rest of the final report in imposing rigidity and specific requirements on academic legal education,” she wrote in a blog.
Woolley notes, however, that the task force has made a compelling argument for accountability in law schools.
“Law schools are the gatekeepers of the profession in a significant extent. The trick is to ensure the law schools are accountable while also recognizing that we are academic institutions and we’re bound by the mandate of an academic institution, which is open inquiry and critical exploration and asking difficult questions.”
Bruce Elman, dean of the University of Windsor Faculty of Law, says the report’s section on institutional resources, such as the appropriate number of academic staff, is a major step forward.
“It recognizes that law schools are not just about their formal curriculum but they are about a whole set of things that we normally expect of a modern Canadian or in fact North American law school,” he says.
Provincial law societies and the federation will now take time to consider the report’s recommendations. At the same time, law schools will need time to make any necessary curriculum changes, including the development of an ethics and professionalism course.
As a result, the task force is recommending that each applicant seeking to enter a bar admission program be required to meet the national standards by no later than 2015.