Setting the standard

Setting the standard

One of the quirky aspects of Canada’s legal system is its lack of any national standard for law grads or foreign students queuing for admission to bar exam programs in any province or territory. The closest de facto standard was issued by the Law Society of Upper Canada in 1957 and revamped in 1969. However, not all law societies used the dated guidelines. 


But, by 2015, a new national standard for a common law degree developed by the Council of the Federation of Law Societies of Canada will affect law schools, law societies, and foreign-trained lawyers across Canada. It also brings a Canadian uniqueness untried in any other world jurisdiction. Federation task force chairman John J.L. Hunter, a former president of the Law Society of British Columbia, says: “It would have been easy to simply include a list of courses. We didn’t want that.”

Instead, the task force report, issued in October 2009, set out its standard in two sections: one outlining a general standard of legal knowledge and a second section that is more about using knowledge than simply textbook learning. It deals with competency. “We wanted to stress the whole question of competency and we wanted to place an emphasis on skills,” says Hunter. Those skills are the same that lawyers today bring to the profession, such as the ability to research, analyze, and recognize legal issues, problem solve, and communicate in one of Canada’s two official languages. “This has not been done before and not been done in other countries,” he says, speaking of weaving these into a national standard.

Hunter says the task force struggled with how to intertwine these two concepts of learning into one standard but, as the task force report points out, it is being left up to the individual law schools to gauge how it is done and many are already doing it. 

While a national standard may not have articulated such skills or competency values, Nova Scotia Barristers’ Society President Marjorie A. Hickey sees them as already existing in most Canadian law schools. “I think it is a fairly common practice of law schools to look at those skills,” she says, adding such skills are honed through courses that offer moot court, practice court, practical substantive legal knowledge, and trial procedure. “I don’t see a change in the way law schools will teach.” That viewpoint is shared by University of British Columbia law dean Mary Anne Bobinski. “There will be minimal impact on most law students as most students already complete coursework related to these topics.”

Despite Hickey and Bobinski’s comments, there is no doubt such skill development (through courses or student legal services extended to the community) is bound to receive greater recognition by law students as they move into their admissions programs.

Hickey, like others, believes the standard is directed more towards foreign lawyers wanting to upgrade their credentials. The FLSC task force report points to an increasing number of foreign-trained lawyers knocking on law societies’ doors. “We have always said that those coming into our admissions course have to have a law degree or the equivalent,” says Law Society of Manitoba CEO Allan Fineblit. The “equivalent” referred to international students or interprovincial students attempting an admission program in another province. “It has been very hard to define what is an equivalent degree when every law school has different requirements.” That feature hasn’t escaped federal scrutiny. As the report points out: “A 2007 Canadian Competition Bureau study on regulated professions questioned the rationale behind the different admissions requirements of various law societies.”

For provinces such as Manitoba, Ontario, and Nova Scotia, the problem is more complex. They have introduced registration legislation that states the admissions system must be fair, a scenario that places added pressure on gatekeeper law societies. “That’s a hard one to defend when there is no definition of equivalent,” says Fineblit. Foreign-trained lawyers must go to the FLSC’s National Committee on Accreditation to determine what courses are needed to qualify for admission programs in the province the individual plans to write. The NCA determines equivalency in consultation with a council of Canadian law school deans.

Mobility has become another issue. The Agreement on Internal Trade amendments make it clear that all levels of government view professions as national entities with common admission standards. While there has been a mobility agreement in place between the law societies since 2002, a national standard would further the AIT amendment.

Lawyers moving to new provinces, students graduating in one province and seeking admission to the bar in another, and the influx of foreign-trained lawyers have combined to push for easier movement through national standards. “There is complete mobility today and that requires that we rethink how the admissions and credential process is to be harmonized,” says Hunter, adding the national standard for admission programs was “just one piece of the puzzle” with another FLSC committee now looking at harmonizing “the entry to the bar in the various provinces.”

The task force looked at the first-year curriculum of law schools across Canada and found they had many similarities. It was in the higher years where differences were noted. It is for this reason the federation’s recommendations are delayed until 2015. “There will have to be moderate changes and we felt it would not be fair to students now going through,” says Hunter. “The one change that we felt was necessary was for
students to take a legal ethics course. About half the law schools already offer such a stand-alone course on legal ethics.” (The task force report states 11 of the 16 law schools over the past decade have instituted a compulsory course in legal ethics, though with various descriptions).

University of Calgary law dean Alastair R. Lucas sees no difficulty in meeting the new national standard and says the faculty’s newly completed four-year review of its curriculum outlining what core knowledge and competencies is on target. “What we ended up with now lines up almost completely with the list the federation’s task force has in its report,” he says, adding there’s already a compulsory ethics course in the school’s curriculum.

Lucas maintains the task force recommendations are really focused on ensuring competencies, more so than direct curriculum, as they are the ability to utilize the law and processes on behalf of a client. “But the competencies that have been set out are quite flexible,” he says. He is also one who sees the national standard for admission to a bar admission program as really one of defining the equivalency issue now surrounding foreign-trained lawyers. But, he says, it will guide new law school development, an aspect other deans agree with.

However, questions remain. Will a national standard lead to cookie-cutter lawyers as law schools focus on meeting the standards and sacrificing intellectual exploration that is the hallmark of academia? Lucas believes there is enough room to meet the requirements and at the same time allow students to follow special interests. “It’s an issue that we were very much alive to,” says Hunter, adding not all deans were enthusiastic to the impact of a standard on a university’s curriculum. “A number of deans in the legal academy expressed that concern, that it not be too focused on learning the trade as learning is an intellectual process.” As such, he says, the task force attempted to respect both the formal education processes to meet professional needs and the liberal education aspect, which encouraged students to explore and challenge the law.

According to the task force’s assessment, meeting the national standard requirement would take about half of the three-year curriculum, says Hunter. “So there is lots of opportunity for non-traditional progress and the student could still meet the requirements to practise law,” he says.

Bobinski believes there will be “minimal impact” on most law students. “Although there are many details still to be determined regarding the implementation of the standards, it is likely that the standards will result in reducing choices for a smaller group of students who might otherwise have focused on a different range of practice-related or other courses.”

Constance Backhouse, an LSUC bencher and law professor who sat on the Ontario law society task force charged with developing competency requirements with the federation, doesn’t see an impact on students entering law school this fall. The implementation process and the law school’s curriculum will determine the range of change, she says. “The people who developed the new requirements stated often that, by and large, the federation was only articulating what the law schools already provided and required of their law students. My assumption is that the federation has neither the interest nor the resources to micromanage the implementation of this program, and that the overall impact will not be substantial,” says Backhouse.

One source of dissention between the law societies and universities has been in the consultation process with deans voicing concern that it should have been better. UBC’s Bobinski explains: “There is a long-standing tradition of collegial and collaborative work on these issues between the law schools and the law societies across Canada. The federation did not include the law schools as full partners in the development of its law school accreditation proposal but instead relied on periodic consultations with the law schools and other groups. From the law school perspective, as reflected in submissions by the Canadian Council of Law Deans to the federation task force, this was an unfortunate development. However, various law societies across Canada included in their approval of the proposed standard the requirement that the federation include representatives of the law schools in the work of the federation’s implementation committee. The implementation committee will provide another opportunity for collegial and collaborative work.”

That process has already begun. “We are pleased that the law societies have adopted the recommendations and we are moving on the implementation process. We are just getting that implementation committee together,” says Hunter, as 11 law societies are now on side. Two deans, Mayo Moran from the University of Toronto and the University of Alberta’s Philip Bryden, former dean of law at the University of New Brunswick, have agreed to sit on the implementation committee.

How the implementation will trickle down to the universities is still unknown, but the greatest change may be rooted in a section of the task force report dealing with skill development in competency versus simply learning law, Hunter maintains, referring to the report: “By articulating these skills requirements the task force believes that law societies would make an important statement that lawyers should not only know the law, but should have the capacity and skill to use what they know and be able to serve the public.”

Looking at it with an eye to a national policy on admissions, Fineblit sees another gain: “It will give us greater credibility.”

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