Time for an end to the bar exams for Canadian lawyers

There is a real opportunity for the profession to take a hard look at their usefulness

Alexander Overton

The COVID-19 pandemic has seen an unprecedented wave of changes in our legal industry. Courts have moved online, electronic filing of materials became commonplace, and law firms openly discuss how technology can create efficiencies and save money in all areas of practice.

However, one area that very closely concerns students trudging through the Zoom School of Law across the country that has so far evaded a close eye is the continuing requirement for all prospective lawyers to study for, write, and pass the bar exams before licensing.

This inertia is not shocking. Many critics have maligned the legal profession for its conservative attitude towards reform. It has been slow to change, even in the face of quality of life updates adopted in other industries. Law as a profession is a follower, a slow one at that, and even the most incremental changes face staunch opposition from the camp of “if it isn’t broke, don’t fix it.” But if the COVID-19 pandemic has brought dozens of institutional failings into sharp relief, it has undoubtedly done the same for the bar exams.

Now is the time to have a conversation about what value bar exams are genuinely bringing to our profession, besides an opportunity for legal regulators to continue imposing significant financial fees on those aspiring to join, under the auspice of “the public interest.” The arguments against them only multiply.

In Ontario, the bar exams pass rate is north of 90 per cent (although the LSO declines to publish official statistics). As the anecdotal phrase I have heard a dozen times in law school goes, “everyone passes the bar.” Changes made to accommodate the exam online by the LSO have shown that the traditional format of the exams was fundamentally archaic. The exams this year and last are down to four hours from seven. Even the previous requirement of writing in person was no longer a hurdle when the LSO replaced it with online proctoring services (despite the extensive list of home test location requirements the LSO has placed onto the last two years of graduates).

Of course, the requirement that bar exam materials be used only in hard copy has not been adjusted, providing students with a valuable opportunity to prove their proficiency at rapidly turning pages.

There is a real opportunity here for the profession to take a hard look at the continuing usefulness of the bar exam. Legal education is not what it was ten, twenty, or thirty years ago. Many practitioners criticize the current bar exams as little more than an exercise in flipping through after-market indices and not an actual test of legal competence.

Moreover, what does it say about our legal regulator that they continue to insist on the necessity of the bar exam when we have a sophisticated and well-developed legal curriculum? Does our regulator honestly believe that the quality of a Canadian legal education, which already includes mandatory courses in many of the areas covered by bar examinations, is not sufficient to prepare law students to meet base professional competency requirements?

If that is the case, the LSO should engage with law schools to rectify any deficiencies and address the problem at its source, rather than engage in a redundant exercise so it may wipe its hands of responsibility and claim it has done its duty to ensure candidate competence by having us tab two thousand pages, the majority of which most of us will never consider again.

Unfortunately, the LSO has been extremely resistant to any reforms and open debate to give students a desperately needed voice within the regulator. At the LSO’s February Convocation, Benchers unceremoniously shot down two Law Student’s Society of Ontario motions requesting that the LSO further examine proposals to provide articling students with Bencher voting rights and a seat at the Professional Development & Competency Committee.

Even something as apparent as requiring that articling students receive minimum wage has taken until 2021 to come into effect in yet another example of student interests being ignored by the regulator and change coming too slow.

Students are navigating a difficult job market and immense financial burden compared to even roughly ten years ago when tuition had already skyrocketed five times in cost since the mid-90s. Now, they must endure an outdated assessment of their skills in the little downtime before entering their careers while sheltering from the third wave of COVID-19.

If there was ever a time for the industry to show a little forethought and question the practicality of re-testing knowledge and skills already demonstrated through three years of education in one of the most academically demanding degrees offered in this country, it is today. A move to diploma privilege is not just the right decision currently, but the right one for the industry moving forward.

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