A vital part of the Law Society’s legislated mandate is to ensure that all lawyers called to the Bar in Ontario have the demonstrated competency to practise law at an entry level.
There are many stakeholders across the legal profession in Ontario who believe that the current licensing process is unfair and unsustainable over the long term, and needs to continue to evolve. There is no consensus, however, on the shape or scope of that change.
The Law Society understands that any change in the fundamental components of lawyer licensing must be supported by the profession.
In this article, I want to begin a dialogue with the profession on this vital issue. Why do we need to change, what are the elements of our licensing process, and our current assumptions about each of them, and what possible options might exist for the future?
Why do we need to change?
The need for change is urgent and compelling. It is driven by three major factors: the number of applicants, financial sustainability and the transformation of the business of law.
In 2016, there were almost 2,400 new candidates seeking to be licensed, an increase of 71% over the past decade. Furthermore, an increasing proportion of these applicants come to our licensing process through the National Committee on Accreditation (NCA). 650 of the current applicants are international candidates who have been educated and often practised abroad, or are returning Canadians who chose to attend a law school in another country.
The Law Society has no control over the number of students admitted to Canadian law schools, or over the number of graduates of international schools.
The licensing system needs to support this huge increase in volume, as well as the rapidly growing diversity in the legal experience and background among candidates.
Another major challenge is the financial sustainability of the licensing process. If most of the transitional experiential training takes place in the pre-licensing period, then the overall costs of certification as a lawyer can become a barrier to many applicants. Transferring costs to the membership or to the profession presents other challenges.
Recent experience in funding experiential training has led to dissatisfaction among candidates and from the profession.
Adding to the urgency for change is the evolution in the business of law. Globalization and the use of technology are quickly leading to new ways of providing legal services. Some law firms are using specialization and commodification in innovative approaches to solving legal needs. Other businesses are offering virtual, legal help online or through non-traditional business models.
Newly licensed lawyers are increasingly likely to find themselves engaged in providing legal services through business practices that were not covered in their pre-licensing experiential training. It will be argued that the licensing process did not provide them with entry-level competence to practise law.
What is the goal of the licensing system?
The licensing system has a single goal: to ensure entry-level competence; i.e. that the newly licensed lawyer has the ability to safely serve the public upon beginning practice. We need a system that is fair from a process standpoint and sustainable from a financial perspective; but it has to turn out new lawyers who meet certain minimum criteria for competence.
What are the current requirements of the licensing system?
- successful graduation with a law degree from an approved Canadian law school or its equivalent (for those candidates with international degrees accredited by the National Committee on Accreditation);
- successful completion of the Law Society’s licensing examinations — currently the two, one day examinations — the Barrister Licensing Examination and the Solicitor Licensing Examination; and
- a period of experiential or transitional training — currently a 10-month articling position or the eight-month Law Practice Program (LPP).
For the past many years, the future of articling has overwhelmed most other discussions about licensing and has focused the debate on the regulator’s pre-licensing requirements (between law school and call to the bar) only. As we begin the dialogue on licensing, we will benefit from expanding the discussion beyond articling to a holistic consideration of all elements of lawyer licensing, including pre- and post-licensing competence requirements.
Common Assumptions about Licensing
In my discussions with members of the profession about licensing, I hear certain repeated themes or assumptions. It will be important for us to consider and assess each of these as we think about the future.
1. There are too many lawyers and the regulator needs to take steps to restrict entry.
This view is based on the erroneous assumption that the Law Society exists to protect its “membership,” and in particular, the economic interests of licensees. To the contrary, our statutory obligation is to act in the public interest and our focus has to be on public protection.
In an era where the cost of legal services and lack of access to the justice system is a great concern, it may be untenable to consider limiting entrance to the profession.
Finally, and as outlined earlier, our regulatory obligation is to ensure entry-level competence. If the applicants who demonstrate entry-level competence to our satisfaction outnumber the actual demand for their services, then those lawyers, once licensed, may not be able to find work in the profession, or may have to accept lower earnings potential. These are economic realities faced by many professionals and it is important to understand that both the Competition Bureau and the Office of the Fairness Commissioner (the latter with an oversight role over the entrance into the profession of internationally trained candidates) would have views about restricting entry.
2. The Law Society has an obligation to ensure that all candidates who enter our licensing system have the opportunity to be licensed.
Not all those who graduate from engineering, or architecture, or accounting can meet the experiential training requirements to allow them to enter their profession. Many take those degrees and move into careers in other fields. Is there something different about law?
If we are serious about experiential training as a core component of licensure (discussed further below) why should we take on the burden of ensuring that there are sufficient training positions to meet demand? Why shouldn’t we be focused, instead, on ensuring that the training positions that are made available are of the highest caliber, and refuse to allow placements where the supervisor cannot support the goals of transitional training? Why shouldn’t it be up to the candidates to assess their options at the outset, and decide to enter law school knowing that there may be a limited number of placements for experiential training?
3. Transitional training is a necessary and key precondition to licensing.
In the United States, transitional training is not a precondition to licensing. Other jurisdictions (Scotland, Australia) require new practitioners to practise under supervision for a period of time following call to the bar, either in combination with, or in lieu of, experiential training in advance of licensure. The concept of post-licensing credentialing, discussed below, is another way to ensure that new lawyers get the supports they need to practise safely.
Some options worth considering
There are many viable options for the Law Society to consider. Let me suggest a few:
One option, of course, is simply to conclude that articling is worth keeping as a means of delivering experiential training, and should remain a core feature of our licensing system. Given its limitations, that would likely require us to keep the LPP as well, for the long term. Cost and viability of the LPP would have to be addressed, but these are not insurmountable difficulties. The hope would be that, over time, the LPP will become more accepted as a valid alternative to articling, and that concerns over whether it is a “second-tier” solution would gradually dissipate.
A second option, suggested in some of the submissions responding to the Law Society’s call for input on its September 2016 licensing report, is that we make the LPP the sole gateway to licensure — perhaps with or without the placement portion of that training. The LPP is an intensive program that requires for its success a large number of instructors and significant space and supports. It is difficult to see how it could be supported in its current configuration for 2,400 or more candidates. Cost would be a serious concern. Nevertheless, this option should be considered.
A third option might be to end transitional training as a requirement of licensing and move to a post-licensing credentialing system. This could include requiring all new lawyers to take certain mandatory training courses in their first few years of practice. For those lawyers intending to go directly into sole practice, the Law Society could require that they receive more rigorous training and supports that might look very much like the LPP course component.
Moving to a post-licensing credentialing system would require the profession to abandon transitional training, at least in the pre-licensure stage. However, it would have obvious advantages for the regulator. It would simplify the licensing process. It would remove the regulator’s perceived obligation to find job placements. It might in time allow the regulator to consider a limited licensing regime where we no longer grant unrestricted general licences to practise in every area of law. Arguably, post-licensing credentialing combined with more rigorous licensing examinations could be a very defensible and fair means to ensure competence and address the evolving ways in which lawyers will be practising.
A final option is, dare I mention it, moving to a U.S.-style bar examination system. I remind the reader (who at this point will likely look around for something to throw at me) that there simply is no evidence that such a system produces less competent entry-level lawyers. The key advantages of such a system would be its simplicity, its obvious fairness, and its rigour.
The Law Society is committed to engage in a dialogue with the profession on all aspects of the licensing system. Lawyers are passionate about these issues – and that is a very good thing. We need you to give us your thoughts and recommendations, and we need to listen, as well as to talk.
Over the coming months, we will be engaging in a series of discussions with the profession on the realities, challenges and opportunities of licensing. We hope that the profession will participate actively with us in this dialogue, with a view to developing a vibrant, competency-based licensing process that will be sustainable in the longer term. The Law Society will post notifications and supporting information for your use, and we hope that you will be able to join us for these vital discussions.
— Peter Wardle, Bencher and Chair of the Professional Development and Competence Committee