The CBA Futures Report’s vision of Canadian legal education

The CBA Futures Report’s vision of Canadian legal education
The subtitle of the CBA’s Futures Report, “Transforming the Delivery of Legal Services in Canada,” reflects the ambitious scope of the report. The subject matter of its 22 recommendations ranges from alternative business structures for the delivery of legal services to the collection of better information about the legal profession and its makeup, the regulation of the legal profession, and the education of Canadian lawyers.

The report describes a legal profession that is facing significant pressure, but its overall tone is optimistic. Its focus is on opportunities for positive change rather than threats to a way of practising law that may be comfortable for many lawyers but is less than satisfactory for many individuals who need legal services.

It is interesting to me the authors chose education as one of its key areas of focus, along with innovation and regulation. Indeed, half of the 22 recommendations are devoted to education.

To some extent, no doubt, this can be traced to the role legal academics played on the teams that shaped the report. They included two of Canada’s most experienced and forward-thinking law deans, Ian Holloway of the University of Calgary and Daniel Jutras of McGill University, and two outstanding scholars who are deeply engaged in understanding the work of the legal profession and professional ethics, Adam Dodek and Alice Woolley. Significant as their contributions to the report undoubtedly were, however, it seems to me that the emphasis the report placed on education is part of a larger tendency on the part of the legal profession to seek to reshape legal education in Canada.

It is interesting, therefore, to contrast the report’s vision of Canadian legal education with another recent effort on the part of the profession to influence Canadian legal education, namely the Federation of Law Societies of Canada’s national standards for the accreditation of Canadian common law degrees.

Admittedly the CBA Futures Report and the federation’s national standards are two very different exercises. The report is an effort by the CBA to take a leading role in adapting the profession to a changing environment in which legal services are provided, whereas the federation was attempting to establish minimum standards for the university legal education that is used to demonstrate qualification for admission into the legal profession.

The CBA report explicitly mentions the federation’s standards only once. In recommendation 20, the report proposes the application of consistent knowledge and skills standards to both graduates of Canadian law schools and graduates of foreign law schools who are seeking qualification through the National Committee on Accreditation. Since the federation’s standards for the Canadian common law degree were explicitly designed to create a level playing field for graduates of foreign law schools and graduates from common law degree programs in Canada, I suspect that this recommendation reflects a belief on the part of the authors of the report that the federation still has a way to go in achieving this goal.

The report is clearly not opposed to the establishment of minimum standards for the educational component of admission into the legal profession, but there is a contrast between the standards the federation has established and the vision the report has for greater flexibility in the models of legal education available in Canada.

The report’s 11 recommendations on legal education can be conveniently grouped into four themes:
(a) improving accessibility to professional careers for a diverse population;
(b) expanding the range and diversity of models of legal education;
(c) ensuring consistent standards for professional qualification; and,
(d) providing both law students and lawyers who are engaged in continuing education with programs that will enhance their professional competence.

It does not attempt to create a blueprint for legal education in Canada. Rather, it makes a series of suggestions for changes that could be made to help our system of education prepare lawyers for the challenges of professional practice in the future, and then offers examples of initiatives that could be used as models for others who might seek to pursue these goals.

The federation’s standards are based on the current model of legal education. The tension between the federation’s standards and the goals to which the report aspires lies not at the level of principle, but in the details of the standards themselves.

For example, the federation’s standards require entrants into law school programs normally have a minimum of 60 credits of post-secondary education before they are admitted. Likewise, the federation standards require 90 credits of coursework that consists mainly of in-person instruction. The CBA report implicitly, and to some extent explicitly, calls these standards into question in order to improve accessibility and facilitate the creation of new models of legal education.

To some extent, therefore, the federation’s standards stand in the way of those who would embrace the CBA report’s vision of new models of legal education to serve the needs of a diverse Canadian population.

As I see it, however, the greater challenge is to find Canadian educational institutions that are willing to sustain a deliberate strategy of educating law graduates for practice in environments other than large international, national, or regional law firms.

We know already that many of the graduates of Canada’s law schools will not practise in this setting, but there are significant institutional pressures that encourage Canadian law schools to hold out this type of career opportunity for at least some of their graduates. In my view this tends to reinforce a certain view of what makes for a successful program. It also encourages schools to adopt admissions standards, tuition policies, and programming approaches that reinforce this vision, and in times of resource constraint to push other approaches to the margin.

It will be interesting to see whether the CBA report will succeed in bolstering the efforts of those who would like to see Canada offer a broader range of legal education models.

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