Without question, one of the greatest accomplishments of the Canadian legal profession in modern times was the conclusion of the National Mobility Agreements. Under the leadership of the Federation of Law Societies, the disparate strands of Canadian lawyerdom – Quebec, now, excepted – took an extraordinary step towards knitting themselves into something resembling a national profession. One of the less charming aspects of our hitherto customary approach to federalism – provincial protectionism among legal professionals – is now mostly a thing of the past.
Defined by its own premises, the Mobility Agreements were a means to a twin end: the more efficient and effective representation of clients, and the recognition that in the twenty first century, the rule of law has become something of national scope. Everything we do as lawyers is, or at least is supposed to be, in pursuit of these dual objectives.
Now, one of the things that must flow from this is that as lawyers, we have to think less parochially. Instead, cosmopolitanness needs to be our watchword. We need to stop thinking as Albertan or Nova Scotian or Ontarian lawyers. Instead, we need to train ourselves to think reflexively as Canadian lawyers. That is why the Mobility Agreements are such an important step; they provide us with a structural framework within which to begin to adjust our self-conception.
It’s difficult to see how any lawyer – at least any thinking lawyer – can take issue with the objective of national mobility. If Canada is to live up to its potential – and if the Canadian legal profession is to have any chance at all of competing on a world stage – we have no choice but to embrace cosmopolitanism as a core value. Continued provincialism in outlook will be the death knell of Canadian lawyers. To put it elegantly, global firms will eat the lunch of biglaw, and alternative service providers will nibble away at what the English would call the “High Street work” that is the bread and butter of small firms and sole practitioners.
But this is no moment for complacency or self-congratulation. As with everything, in this project to “Canadianize” the legal profession the devil will be in the details. There is still ample opportunity for the project to go off the rails. To mix metaphors, fissures in our fabric still exist. There are many moving parts to the legal profession, and the tectonic plates are always in danger of shifting – as illustrated, for example, by Quebec’s recent decision to withdraw from the mobility scheme after having belonged only for a few years.
One of the most fraught of all aspects of the whole arrangement is the relationship between the practising arm of the profession and the academic one. As I have written before, the Bar and the Academy largely exist as two solitudes. It’s true that there have been some successes in spanning the divide in recent years – the involvement of a number of law professors in the CBA Futures project and the efforts on the Prairies to reduce duplication between the JD curriculum and the content of the Bar Admission program come to mind. But it’s also true that there remain deep-seated currents of misunderstanding, and sometimes mistrust, between us.
Which brings us back to the Mobility Agreements. Just as it is hard to see how any thinking lawyer could take issue with the idea of national mobility among legal professionals in 2016, it is difficult to see how any law professor could quarrel with the notion that there should be some basic commonality in the way in which putative lawyers are prepared for practice. So far, so good. But the last time we went through this … well, we’ve seen this movie before.
In a nutshell, the process by which the Federation of Law Societies adopted the guidelines for the Approved Canadian Common Law degree serves as a template for how not to develop a productive relationship. As someone who was involved in the process from start to finish, I can say that it was one of the most professionally demoralizing things I’ve ever had to participate in. None of us covered ourselves in glory. All sides behaved poorly. Intemperate things were said. Hard (and often poorly thought-out) positions were taken. Some people felt that they were backed into corners. Even worse, others felt that they weren’t listened to. Back room dealing took place – sometimes in more than one back room at once! To be sure, the end result was not bad – our profession uses a much lighter hand in regulating the content of the JD program than their colleagues south of the border. But no one should feel proud of the process by which we got there.. Indeed, as far as process went, it really could serve as a case study for how not to develop a feeling of partnership.
So whatever else the Federation envisages as it moves to put legs on the next step of the national mobility scheme, viz coming up with some sort of nationally common approach to Bar admission, it owes it to everyone – to the provincial Law Societies (for whom the Federation is an agent), to the law professors (who are doing their best to prepare students for the profession of tomorrow), to the law deans (who often find themselves being the meat in the middle of the sandwich when it comes to relations between the academy and the profession), to the law students (who don’t relish the rules of the game being changed part-way through) and, at the risk of sounding corny, to the rule of law in Canada – to move deliberately, but engagingly. And please, no bad behaviour from anyone. The issues relating to the future of the legal profession are challenging enough already. We’ll either meet them together, or we won’t meet them at all.
Ian Holloway QC is Professor and Dean of Law at the University of Calgary