The Mandatory Nature of CPD

Love it or hate it, we all have to do continuing professional development (CPD).

One lawyer hated it so much that he refused to do it at all. When the Law Society of Manitoba automatically suspended him, he took his challenge all the way to the Supreme Court of Canada.

As you might expect, the lawyer was unsuccessful on his appeal in Green v. Law Society of Manitoba, released this week. The law society was empowered under the Legal Profession Act to achieve its mandate of self-regulation and protecting the public interest. The power to create a CPD scheme must also come with the power to enforce a CPD scheme.

Justice Abella’s dissent didn’t take issue with the ability of the law society to suspend a lawyer for refusing to follow the rules. She took issue with their ability to do so automatically, without a right to hearing or opportunity to make representations. Of course the suspended lawyer did make representations, but only in his application for declaratory relief to the court, and through his counsel.

The lawyer in question had been practicing for over 60 years, which is quite an accomplishment in itself. He likes to point out that there was no (official) indication of incompetence necessitating his suspension. Perhaps it’s for the best, but he’s chosen to retire now rather than to take the mandatory CPD, which would have automatically had him reinstated.

Aside from the fact that he was being compelled to do it, I’m not exactly sure what the lawyer was objecting to with mandatory CPD. Granted, many lawyers simply complete it to check off a box. But many more actually benefit from CPD, gaining useful insight into strategy and techniques, obtaining copies of checklists and precedents, or learning about new and emerging areas of law.

The social aspect of CPDs are also a significant draw. The isolation often experienced by practice is often ameliorated by greater informal interactions in the bar. Frequent interactions of this type are also likely to enhance civility.

Of course if you hate all the other lawyers in your jurisdiction and want nothing to do with them, there are still other options. If you’re feeling particularly like a recluse, you can often engage in self-study. However, I don’t think this lawyer was a particular hermit because he was a life-bencher of Manitoba’s law society. Those guys like to talk.

I’ve lived in Manitoba though, and I know how cold it gets in winters. Sometimes you just want to stay home. These days you can do all your CPD by webinar, but that presumes you have a computer and know how to use it. If you don’t, well, there is CPD for that as well.

Personally, I’d be interested in hearing more from this lawyer about his objections to mandatory CPD. Maybe in person. Possibly at a conference.

The reason I know that will never happen is that speaking at a legal conference is also usually eligible for CPD credits. If we did give this lawyer to speak at a conference, his entire case would automatically fall apart.

I guess taking a losing case to the Supreme Court of Canada on CPD speaks for itself.

 

Comments

  1. CPD of inadequate content can be worse than no CPD. It perpetuates its limitations to a wider audience. And so the case law’s inadequacies cycle faster and further through the law reports, instead of improving on content.
    For example, complex technology is now producing most of the evidence, but the case law shows only a very superficial knowledge of it, and of the fact that it’s been technology-produced. CPD is still far from containing enough of the detailed information needed to conduct a cross-examination that actually challenges the reliability of the evidence that technology produces.
    For example, these frequently used evidence-producing types of technology go unchallenged: (1) mobile phone tower location evidence used to locate us-very frequently used because we all carry mobile phones; (2) breathalyzer/intoxilyzer readings; (3) electronic records management systems (records are now the most frequently used kind of evidence); and, (4) the technology that produces the data used to formulate expert opinion evidence.
    The more complex the technology, the more ways it can break down and fail, and the more demanding must be its maintenance procedures, and the more demanding and complex must be the legal infrastructure needed to regulate its use, to guarantee the reliability of the evidence it produces, and guarantee a sufficiently low probability of wrongful convictions and judgments.
    For example, Ontario Court of Appeal case law now states that it is no longer necessary to call expert opinion evidence to establish that the mobile phone tower closest to the phone in question, is the one that transmits the call. In fact, there are several frequently operating exceptions (see: R.P. Coutts and H. Selby, “Problems with cell phone evidence tendered to ‘prove’ the location of a person at a point in time,” (2016), 13 Digital Evidence and Electronic Signature Law Review 76-87 (pdf.)). And all such technical systems are maintained to a commercial standard of performance only; not to a, “proof beyond a reasonable doubt standard.” See e.g., these 2 voir dire, murder trial decisions: R. v. Oland 2015 NBQB 245 (the data admissibility decision), & 244 (the opinion evidence admissibility decision based upon the data’s admissibility). Meaning: ask, is there independent corroboration, or does this technical system have to prove its own reliability?
    The fault (the original sin) lies within the “stars” of our law schools, i.e., insufficient awareness created as to the many-faceted dependence of law upon technology. Now, there’s only a small and rapidly shrinking quantity of evidence that is not technology-dependent.
    Maybe it’s now better to have an engineering degree than an arts degree as the basis of an application to get into law school. And apply to a better law school too.

Leave a Reply

(Your email address will not be published or distributed)