Seizing the Opportunity: Lawyer Licensing and Legal Education for the Future

Monday, November 5, 2012

Seizing the Opportunity: Lawyer Licensing and Legal Education for the Future

Professor David Wiseman

The Ontario legal community is being presented with an historic opportunity to forge a new partnership between legal regulators and educators on the nature and content of professional licensing and education. To seize this opportunity, we need to bring together all the stakeholders at a table that is set for open identification of wants and needs(and interests and impacts), meaningful engagement with issues, difficult discussions about resources and collaboration on innovative problem-solving.  The law schools and legal regulators should have equal seats at the table, which ought to be at arms-length from both, and which should also include law firms and lawyers, practitioner associations, Legal Aid, legal clinics, pro bono law, law students, equality-seeking groups and the general public(to name the most obvious).  The results could usher in a new horizon of experiential legal education with integrated lawyer licensing that harnesses the profession’s practical expertise and promotes knowledge and skills for systemic advancements in access to justice.  Imagine!

Unfortunately, the leaders of Ontario’s legal community are falling over themselves to squander this opportunity.  The most obvious culprit is the Law Society of Upper Canada’s Articling Task Force, but there is plenty of blame to go around, including Ontario’s Law Deans.I will come back to that, but first let me update you on where we are at in the process. 

In the continuing saga of the review of articling in Ontario, last week the LSUC Benchers voted to postpone debate (the session is web-archived) on the Final Report of the Articling Task Force until later in November.  The debate will force a choice between two options arising from a split in the Task Force’s views: a MAJORITY POSITION involving retaining articling (but layering on back-end quality assurance) and introducing a professional legal training course (PLTC) alternative OR a MINORITY POSITION of abolishing articling and moving to post-licensing requirements and supports.

In an earlier blog-for-equality I have already reviewed the disappointing lack of any real effort to improve access to justice via either option.  But the problems go well beyond that.  Lurking in both options is a world in which legal regulators set the knowledge and skills requirements for lawyer licensing while downloading the practical training to law schools.  In this future, law schools do all the work for no say (and, for that matter, no pay for the programs).  Of course, many practicing lawyers will continue their invaluable participation in law school education, but we’ll be collectively walking to the beat of the legal regulators’ drum.  Having barely recovered from the tin-ear process of the Federation of Law Societies establishmentof common requirements for the common law degree (Harry Arthurs has written a powerful critique of that process and its results and a recent FLS news release  suggests further meddling is imminent), the law schools have been offered a mostly deaf ear by the Articling Task Force.  But there is an opportunity buried in it all.

To be sure, the law schools were permitted to make submissions on the earlier Consultation Report of the Articling Task Force and, indeed, were specifically invited to make submissions on the idea of integrating a version of PLTC into their existing 3 year programs.  This idea was based on the vision of the Carnegie Report on US legal education, which emphasized a need for increased experiential learning.  Only 3 faculties(Ottawa, Windsor and Queens) provided written submissions – which may seem damning on those that didn’t, until one sees how little attention was paid to those that did.  Collectively, the faculty submissions clearly expressed enthusiasm for experiential learning and mentioned the significant experiential programs already offered.  At the same time, it was clearly expressed that expansion of these programs would have curriculum impacts that would require careful consideration by faculties and their Universities, that any expansion would depend on finding new resources, that the LSUC’s own rules and enforcement practices had been a barrier to law student legal assistancein the past, and that there would need to be a specific process of collaborative consultation and planning with the law schools before any integrated PLTC could be contemplated.  So, in other words, these faculties were happy to engage the idea, but felt strongly that it would have significant ramifications that deserved a proper process of engagement and a collaborative approach to planning and resourcing.  Other faculties have expressed similar enthusiasm (see Dean Sossin’s blogpost on this) outside the Task Force process and, indeed, are already proceeding to enhance their experiential curricula.

But you’d barely know this from reading the Task Force’s Final Report.   The majority report accepts the law schools’ view that the idea of integrated lawyer licensing raises ‘complex and nuanced’ issues but largely fails to acknowledge that there is significant experiential learning already occurring and that the law schools are enthusiastic about doing more.   Rather, the majority takes the position that its option leaves the door open to integrating PLTC and that it would be a missed opportunity not to explore the idea further.  I agree – but how about we collectively explore the idea before deciding the future of the licensing system?  Indeed, if the majority is serious about wanting this exploration, why don’t they propose to Convocation that we take time to do this before deciding?

For its part, the minority report takes a swipe at law schools as being ‘generally resistant’ to more ‘practical training’ and for ‘raising concerns about the implications on their curriculums and the changes to legal education that could result.’  According to the minority, this is because law schools are more interested in ‘teaching academic courses’ than undertaking ‘practical training’.   Just to be clear, I doubt this is a critique of the traditional first-year black-letter law courses (which, it should be noted, at most law schools either integrate or are complemented with lawyering skills components) – rather, this is an attack on courses that are more directly oriented to critical thinking about law and social justice(and which, for that matter, often seek to develop skills of law-reform oriented lawyering!).  At any rate, to say the least, the minority is misrepresenting the position of those faculties that did make submissions.  Ironically, the Consultation Paper did not even raise the option of abolishing articling.

Whichever option is chosen by the LSUC, there will be significant ramifications for legal education, but no-one has had time to work out or work through what those may be. It would be better to work that out, as best we can, before we decide which option to pursue (and in what way) – indeed, we need to work this out in order to decide.  Moreover, whatever option is chosen, it will no doubt require collaboration between the profession and academia – if we think about what that collaboration might look like, we may develop even better options (see, for instance, Dean Felthusen’s recent contribution in Precedent magazine).

The Task Force says it is interested in exploring these issues.  If it is serious, it should propose exploring them through a meaningful process involving all stakeholders.  For their part, the Ontario Law Deans ought to set aside their history of competitiveness and faux co-operation and collectively take up the offer of exploration.  Moreover, the Law Deans would be best to propose a process that is at arms-length from the regulators, who seem unwilling to listen properly to law schools (and other stakeholders). The failure of law schools to achieve a better result from the FLS process should be sufficient motivation for a different approach this time around. We don’t have to end up with a ‘one-size-fits-all’ model, if that’s what law schools are worried about – but it is in the interest of all law schools to have a say in objectives and options.  And this is the last best opportunity we may have.
Designed by Rachel Gold.