Parsing the Law Society of Upper Canada’s Kafkaesque CPD Requirements

As of January 1, 2011, Ontario lawyers are now required to complete at least 12 hours of continuing professional development (“CPD”) in “eligible educational activities.” At least three hours must relate to “professional responsibility, ethics and practice management,” and must be obtained from a program that is accredited from the Law Society of Upper Canada. The nine hour balance must relate to “eligible educational activities.” This is on top of the 50 hours of self-study that every Ontario lawyer is expected (but is not required) to fulfill every year.

“No problem,” I thought, “I regularly keep updated on new legal developments.” I research and write articles for my firm, as well as ones that are published in legal newspapers and journals. I write articles for slaw.ca. On top of this, every day, I review new decisions released by the Ontario Court of Appeal, the Divisional Court and the Superior Court of Justice, and tweet interesting cases on my Twitter account. Surely this was the cutting edge of continuing legal education, I thought.

Having wound my way through the LSUC CPD website, including its dense list of 39 frequently asked questions, it turns out I was wrong.

The articles I write for my firm? Even if it is law-related and falls within the CPD definition, it doesn’t count if it is intended “primarily for […] marketing purposes.” That doesn’t make sense. So long as the article was indeed written by the person listed as the article, and provided the article is law related, who cares what the person’s motivation is for writing the article?

The articles meant for publication in journals and articles? They count, but only to a maximum of 6 hours. This also doesn’t make sense. Why the arbitrary limit?

The overall purpose of the CPD requirements seems to be to encourage “collective” learning, rather than individual learning. That is why self-study does not qualify for CPD, and why there must be an “interaction requirement” in CPD programs. Under this criteria, recorded educational programs qualify, but not if you watch the program by yourself. It only qualifies if there are two or more participants watching the recorded program. Yet there is no requirement for me to say even a peep to the person who is watching the program with me. I could even spill coffee in their lap and I would still qualify.

The Twitter account? That is when things get really weird. Included among the list of 39 questions is whether “listserves, forums and network sites” are eligible for CPD. The Law Society’s answer is, unequivocally, “this type of information exchange is not eligible.” That also does not make sense. If the reason for requiring these CPD activities is to encourage interaction with other people, why wouldn’t these newest methods of social communication qualify if the very purpose of these tools is to exchange information and to discuss new ideas with other people?

Everyone agrees that lawyers need to keep up with new legal developments. Personally, I think it’s virtually impossible to force people to learn and that the problem would be better tackled by punishing lawyers who make mistakes because they didn’t keep up with legal developments. Whatever the solution may be, there are serious problems with the current implementation of the Law Society’s goal. I hope prospective Benchers who will be elected on April 29th give serious thought to how it can be changed.

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Comments

  1. I had come to the same conclusion regarding the 30 hours over two years of continuing professional education that we have to do for the Quebec Bar and like you was sadly mistaken!

  2. Jean-Marc Leclerc

    It’s amazing – I would have thought it’s in lawyers’ self-interest to keep up with new legal developments, and if they screw up because they didn’t, they will acquire a reputation as a bad lawyer.

  3. Jean-Marc’s comments at the end of his main post and the response to Yosie’s comment are more directed at the requirement than its implementation. The Benchers have been debating this for a long time, and have had a number of intermediate steps, like self-reported but only suggested CLE. Obviously they don’t think it’s working very well.

    Most other North American jurisdictions have mandatory CLE, and many other professions have the equivalent. It’s not novel.

    The problem with self-study and non-interactive study is that it may or may not happen. Also it may or may not be very effective. They are trying (it seems to me – I have no inside information) to ensure that the learning actually is taken in. That’s why reading a listserv, or occasionally sending a note to it, or sending a tweet, doesn’t count. It’s not sustained activity.

    No doubt the reason for limits on teaching or writing credit is to promote some variety. Writing one article or teaching one class can use up one’s 12 hours a year (or 9 without the professionalism/ethics element), and they seem to be hoping for a broader horizon.

    It’s less clear to me why writing a legal updating as a marketing publication would not count as writing. Are the Benchers commenting on the depth of understanding that a marketing document might have, compared to a more academic or CLE-program article?

    If they have to have 39 questions in their FAQ, it’s probably because lawyers are very good at finding loopholes, and the Benchers are trying to fill as many as they can. Also, legal learning comes in a large number of shapes and sizes, and they do need individual attention.

    I don’t pretend that all the rules are right – it’s the first year of a new system. But I think “Kafkaesque” is a bit strong. Complex, and possibly not convenient, and possibly even not sufficiently accepting of the value of participating in new media activities, and I would expect subject to adjustment over time.

  4. Jean-Marc Leclerc

    Thanks John – maybe “Kafkaesque” may be a little strong but I thought it was appropriate because the rules are complicated and don’t make sense sometimes. For example, the rule which says that watching a legal education seminar by yourself doesn’t count but it does count if you watch with someone else.

    It could be that the Law Society is trying to make sure that people “take it in” because self-study is not effective, but I don’t think mandatory collective CLE is the answer. Group CLE isn’t necessarily any more effective at ensuring that someone “takes it in”. Nothing’s stopping someone from peering at their Blackberry every 2 seconds.

    Not sure that I agree that sending a tweet shouldn’t count because it’s not sustained activity. I spend about 30 minutes every day reviewing new decisions and thinking about how I can summarize the decision in 140 characters or less. That’s sustained activity.

  5. I remember when lawyers in Quebec had to attend mandatory collective learning in relation to the new Quebec Civil Code back in 1994. Those who could not attend these live sessions had to book self-study by video; however, these self-study sessions had to happen at the Quebec Bar Association offices in a room with a window were an inspector or some other employee sat on the other side to ensure we were watching the video and not reading a newspaper.

  6. CPD was brought in as a cosmetic measure; everyone other profession was doing it so we must too. Leaving aside the details of the rules—“Kafkaesque” may be a bit strong, but not by much—the fundamental problem of any mandatory CPD requirement is that there is no way to know, let alone make sure, that the completion of a unit of CPD will do anything to deal with a lawyer’s potential incompetence. It is at least plausible that lawyers who are incompetent don’t know that they are and, since there is no way to find out the fact of a lawyer’s incompetence, the courses or programmes that he or she takes will only by chance to anything to correct the problem.

    At a CPD (then called MCLE) conference many years ago, I argued against it on exactly this ground. Another speaker, from the Manitoba Law Society, said there were only two justifications for it: the “chicken soup” one—it probably won’t do any harm—and the “flinging-mud-at-a-wall” one—some might stick! Those arguments are about all that CPD has going for it now.

    It annoys me that I get no more than 6 hours when I publish my text—this is where the rules really are Kafkaesque. It’s also bizarre—and reminiscent of the Avery Brundage era of the Olympics—that I only get even that if my writing is unpaid—what authors actually get as royalties could perhaps be described as “homeopathic,” so may not count a “paid” work—and part-time. The rule states:

    Credit is only available for volunteer or part-time writing. Writing as part of full-time or regular employment will not receive credit.

    If an important part of my job at my firm is the presentation of CPD seminars, does this rule mean that I can’t get any credit for what I do? The same goes for teaching. I teach a 35 – 40 hour course at Osgoode but I get a maximum of 6 hours—why? I don’t repeat myself week after week, or every two or three weeks.

  7. Derek G. Graham OLS OLIP

    Might I suggest that the honourable scribe is ‘on point’ (not ‘pointe’) as to his critique of the LSUC’ attempt toward a didactic rather than a heuristic concept of being current as a professional.

    If one needs a more Orwellian “Big Bro/Sis” looking over one’s shoulder, has one missed from professional infancy the metaphysical mirror one passes every day that asks “Have I done the best I can?”

    A simple listing by every Ontario professional’s licensing body of the Continuing Professional Education events and situations that qualify as CPE, that is open to one’s peers, or less favourite to YOS, as it eliminates peer pressure, not open to one’s peers, should be sufficient to monitor how serious an individual considers themselves an ethical professional,

    A blank or scarcely filled list is not necessarily evidence of a poor professional.

    But it may be indicative in a peer review.

    Troubling is the concept of non credit for self study.

    How many studied only en masse before being called to the Bar ?

    Filling out the list with inexactitudes is not professional.

    As a good friend and OPP officer said to me: ”You never have to remember the truth”.

    Look in the mirror.

    Do you see a professional who is keeping pace with ethical knowledge and change?

    If not, no amount of CPE units will clear the fog of incompetence IMVHO.

  8. Ms. Saint-Cyr’s brief comment contains, I suspect, part of the justification that one would get from those “responsible” in the LSUC, assuming any of them were prepared to be wholly honest about the situation. For the rest? Plausible deniability. That is, f the easiest way to get CPD credits is to go to a programme authorized by the LSUC, the can claim there’s no valid reason for the hypothetical lawyer to not be minimially competent in his or her area of practice since all he or she has to do is go to a programme on that area, get the material, and learn it.

    I’m told that pink pigs were occasionally seen flying at Pink Floyd concerts: certainly true if the cover of Animals is accurate.

  9. But, Angela, your work (and apparently) mine is too “scholastic” – our denials, our intent, accuracy and reality, notwithstanding – and we both know the views of the PtB to the “scholastic”.

  10. Jean-Marc Leclerc wrote:
    February 24, 2011 at 4:20 pm
    It’s amazing – I would have thought it’s in lawyers’ self-interest to keep up with new legal developments, and if they screw up because they didn’t, they will acquire a reputation as a bad lawyer”

    I’d respond: “among whom but more importantly, why do you assume that reputation would matter to anything that the particular lawyer cares about, if the particular lawyer isn’t inclined “to keep up”?