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Cultural Competence and the Next Generation of Lawyers and Lawyer Regulation

Every year, I have the pleasure of teaching first year law students at the University of Ottawa in a dispute resolution and professional responsibility course. A big part of the course involves having students gain “hands-on” experience through simulations where they interview clients, write client advice letters, negotiate with opposing counsel and conduct mediations. For someone with a passion for legal ethics like me, the course is extra fun because this practical experience is coupled with extensive instruction on professional responsibility issues. Among other things, at the end of the term, the students write a final paper reflecting on one of the core professional competencies that they have learned about in the course.

Reading these papers always sheds interesting light on the students’ perspectives on some of the pressing ethical issues that the legal profession faces today and which the students will face as they begin their careers as lawyers. This year, many students chose to write on cultural competence and their belief that law societies should do more to help lawyers gain skills in this area. It was inspiring to see students so interested in an important emerging issue in lawyer regulation.

The idea that law society interest in lawyer competence might stretch beyond “typical” lawyering skills, like drafting court documents or looking up statutes, is relatively new. Indeed, as I have written about elsewhere, whether Canadian law societies even have the jurisdiction to regulate lawyer competence at all was an open question as late as the 1970s. Thankfully, lawyer competence is now firmly in the bailiwick of Canadian law societies. Even more exciting is the fact that law societies are starting to see and treat the issue of competence more holistically and as including matters like lawyer wellness, technological competence and, yes, cultural competence.

A number of Canadian law societies have already taken concrete steps to help lawyers become more culturally competent which, as noted in this LawPRO article, simply means “being able to effectively connect with people who are different from us – not only based on our similarities, but also with respect to differences.” The Nova Scotia Barristers’ Society, for example, now provides in-person training and has prepared a series of short videos on the topic. In June 2016, the Law Society of Upper Canada identified cultural competence as a “key component” of its new Certified Specialist Program in Indigenous legal issues.

Emerging law society interest in cultural competence is great to see given its implications for ensuring that more individuals can effectively access justice. This interest is all the more important in light of the Truth and Reconciliation Commission’s specific call “upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations.”

To be sure, there are many practical questions about how law societies should tackle the issue of cultural competence. Should a duty of cultural competence be incorporated into professional conduct rules? If so, how could such a duty be enforced? Would more education and training be a better route? If so, who is best placed to deliver this training? Law schools? Law societies? Law firms? All of the above? Indeed, these were the very questions that students were raising and grappling with in their reflection papers in my course.

Easy answers to these questions seem elusive. It’s hopeful and inspiring, however, that first year law students are already thinking about these questions and pondering potential answers. The profession has already come along way from several decades ago when competence was seen as mostly a private matter between lawyers and clients. Looking at what today’s law students are thinking and writing about, there is no doubt that our vision of what good lawyering is will continue to evolve, as will our thoughts about how regulators can best help the profession serve the public in new and better ways.

Comments

  1. This semester, for the first time, I am teaching a required 2-credit 2L course that focuses on what I have called “extra-legal competencies.” In reality, however, the competencies I am covering are things that I think that every lawyer should know. I have included cultural competency as one of the 13 competencies that I will be covering this semester.

    I am teaching the cultural competency session in late March or April and I have not yet decided what materials I will use. As a result, I am looking forward to seeing the responses to the questions that Amy posed. I would also welcome suggestions off list – email LTerry@psu.edu. If you are interested in additional information about my course, see http://tinyurl.com/Terry-Competencies (slides) or http://tinyurl.com/Terry-ETL (blog & video).

  2. Thanks for the shoutout to our work. The Society has determined that commitment to equity issues is a core component to regulation as is reflected in the adoption of the following regulatory objective :
    Promote diversity, inclusion, substantive equality and freedom from discrimination in the delivery of legal services and the justice system
    We have also included an element on Equity in our new Management System for Ethical Legal Practice, so that all lawyers and law firms report on their commitment to equity in the delivery of legal services. We have a long way to go, but these are important steps along the road to ensuring a more equitable legal profession that provides better legal services to our clients.

  3. Thank you for this interesting discussion.

    You might also find interesting that France’s newly released Haeri Report on the Future of the Legal Profession contains a recommendation that the curriculum of the country’s 18-month professional bar schools (CRFPAs or écoles d’avocat) be reconstructed around the top ten skills that the World Economic Forum has said will be the most needed and useful in 2020:

    Complex problem solving
    Critical thinking
    Creativity
    People management
    Coordinating with others
    Emotional intelligence
    Judgement and decision making
    Service orientation
    Negotiation
    Cognitive flexibility

    The Report further recommends that the CRFPAs also include courses in the humanities, and notably in economics, political science, contemporary history, geopolitics, and sociology.

    Here is a link to the Report (in French): http://www.justice.gouv.fr/art_pix/rapport_kami_haeri.pdf

    The relevant discussion is on pages 28-29.

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