Column

The Decade in Legal Education (2010-2019)

The end of a year is a time to reflect upon the previous 12 months. The end of 2019 also provides the opportunity to reflect on the past decade.

Is it an exaggeration to say that the past decade has seen more changes in legal education in Canada than at any point in the past half-century? Since the opening of Queen’s, Western, and Ottawa in the 1950s? Or perhaps since the transfer of Osgoode Hall to York University by the Law Society of Upper Canada in 1965?

The decade that ended saw the opening of two new law schools (Thompson Rivers University, 2011; and Lakehead, 2013) and the launch of a third (Ryerson, opening fall 2020). The prospect of a fourth new law school (Trinity Western University) represented both a regulatory and an ontological challenge to the profession and to Law Societies in at least three provinces (BC, Ontario and Nova Scotia). The Supreme Court’s 2018 decision seemed to put and end to TWU’s plans, at least for now.

In Ontario, the debate over articling subsumed the entire decade, leading to the creation of an alternate pathway to the profession through the Law Practice Program (LPP) at Ryerson and the Programme de pratique du droit at uOttawa. It cannot be said that the debate over articling was resolved, but rather exhausted. The focus on articling also exposed the ugly underbelly of articling: the rampant nature of discrimination and harassment, not only in Ontario but in other provinces as well. In the past decade, the profession seemed unable or unwilling to face the reality of what by any standards should be considered a crisis of harassment and discrimination within its ranks. Whether it will have the motivation or the courage to face it in this decade remains to be seen.

The biggest phenomenon for legal education is undoubtedly the massive increase in foreign-trained lawyers seeking to qualify to practice law in Canada through the National Committee on Accreditation (NCA). The majority of NCA graduates are Canadians going abroad to study law. The majority seek to practice in Ontario.

There are two ways to enter the licensing process in the common law provinces: by receiving a degree from an accredited law school in Canada (all common law faculties are currently accredited) or obtaining a Certificate of Qualification from the NCA. At the beginning of the decade (2010), 17% of all students admitted to bar admission courses outside of Quebec were NCA grads; 83% were graduates of Canadian law schools.[1] By 2017, the numbers had jumped significantly: 36.6% of all students admitted to bar admission courses outside of Quebec were NCA grads; only 63.4% were from Canadian law schools.[2]

This change reflects the impact of globalization on legal education in Canada. It is not clear that the profession has fully internalized this reality. Lawyers complain about the number of law students, criticize new law schools or assert that Law Societies should let fewer lawyers into the profession, ignorant or oblivious to the anti-competitive and indeed illegal nature of such sentiments.

In reality, while we debated the approval of new law schools in Canada, law faculties overseas embraced and recruited Canadians in large numbers. In the UK, Leicester Law School now boasts over 300 Canadian students or 25% of its population. In Australia, Bond University has over 150 Canadians studying at “Australia’s largest Law School for Canadian Juris Doctor and Bachelor of Laws candidates.” Many other law faculties in the U.K. and in Australia have followed this example in recruiting Canadians.

In this new decade, we in the profession and in the academy will have to internalize and respond to the changes of the past decade. Law Societies, with the exception of Ontario, have come to focus more and more on skills training, leaving the “learning the law” to the law schools. This was demonstrated most recently by the November 2019 announcement of the Nova Scotia Barristers Society that it will be moving forward with a new Bar Admission Program, the Practice Readiness Education Program (PREP). Notably, the Nova Scotia Barristers Society stated that, “There will no longer be a Bar Examination once we fully transition to this program.” [emphasis in original]. Ontario remains an outlier in its failure to provide any transitional training between law school and articling.

Law schools and their regulators (the Federation of Law Societies) will have to confront the reality that foreign-trained lawyers (as well as Quebec lawyers and notaries) do not require an undergraduate degree yet it remains the norm for entrance to Canadian law schools outside of Quebec. If the trend of stagnant articling positions and increasing numbers of bar applicants continues, we will all have to face the reality that many more qualified lawyers will not in fact practice law.

In short, the changes to legal education brought over the course of the last decade will bring challenges to the profession and to the academy in this decade.

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[1] See “Admissions”, Federation of Law Societies of Canada, 2010 Statistical Report, https://flsc.ca/wp-content/uploads/2015/03/2010-statistical-report.pdf (reporting 3975 total students admitted to bar admissions courses including 1,304 from the Barreau du Quebec and 208 from the Chambre des Notaires, reducing the total of 3975 by 1512 to 2463).

[2] See “Admissions”, Federation of Law Societies of Canada, 2017 Statistical Report, https://flsc.ca/wp-content/uploads/2019/04/2017-Stats-Report.pdf (reporting 4311 total students admitted to bar admissions courses, including 1430 from the Barreau du Quebec and 144 from the Chambre des Notaires, reducing the total of 4311 by 1574 to 2737).

Comments

  1. Legal education has been allowed to change radically in its management and its sources so that law societies can maintain their refusal to change their management structure based upon the bencher, i.e., the practicing lawyer embellishing his/her career with no intention of becoming, or ability to become a career-dedicated expert in law society management, gaining ever-increasing expertise in such law society management.
    That is but one consequence of the unaccountability of law societies for their refusal to progress beyond being at best, good 19th century law societies.
    Imagine other manufacturers of services as well as goods, saying, “the unaffordability of our services is the government’s problem; we shall do nothing to bring about a change in the way the legal profession produces legal services so as to end the ‘access to justice’ problem [the A2J problem] that victimizes the majority of society.”
    Think of Canada’s law societies as being large utility services that never have to change their management structure, or the way it which their members produce their legal services, but refuse to do anything about the increasing unaffordability of their members’ legal services, even to the present state of making victims of the majority of society, and having created the factual non-existence of the constitutionally-declared rule of law. Such a utility should be abolished or forced to obtain radically different management.
    That unaffordability of legal services is caused by the way lawyers produce legal services. Just as much as the competence and ethical practice of lawyers is an integral part and consequence of lawyers’ method of producing legal services, so is the affordability of the legal services they produce. Therefore, the affordability of legal services should be considered to be just as much a law society responsibility as is the competence and ethical practice of the lawyers who produce those legal services.
    Therefore, the method of producing legal services and their affordability should be a very major part of bar admission course training and law society regulation of the legal profession.
    Law societies should never give-in to the demand of their members to limit the number of lawyers as a method of dealing with the shortage of clients that lawyers’ obsolete method of producing legal services has produced for most lawyers. Manipulation of the forces of supply and demand of the legal services market by law societies should never be acceptable.
    Because governments do not hold law societies to account for their incompetent performance, governments are equally to blame for the A2J problem and its consequences. That is why almost always governments respond to justice system problems with legislation, because: (1) it is the lowest-cost response; and, (2) it is the product of the fixed “political wisdom” that states, “there are no votes in justice,” meaning, that there are no significant quantities of votes to be gained by spending significant quantities of taxpayers’ money on the justice system. Consider last year’s enacting and implementing of Bill C-75’s abolition of the preliminary inquiry for hundreds of criminal offences as being a good example of such grievously irresponsible use of legislation. The ever-increasing technical complexity and frequency of the electronic sources of evidence means an ever-increasing need for the preliminary inquiry as essential for all parties to be adequately prepared for trial and to obtain a fair trial. For a greater understanding of the above factors, read these articles:
    (1) “Law Society Policy for Access to Justice Failure” (SSRN, June 14, 2019); at:
    https://ssrn.com/abstract=3397081 (soon to be further updated) ;
    (2) “No Votes in Justice Means More Wrongful Convictions” (SSRN, June 10, 2016); at:
    https://ssrn.com/abstract=2790625 ;
    (3) “Access to Justice—Unaffordable Legal Servies’ Concepts and Solutions” (SSRN, November 8, 2018); at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627 ;
    (4) “Electronic Systems Are Trusted Far Too Much as to Producing Reliable Evidence—the Oland Example” (Slaw, June 19, 2019); at: http://www.slaw.ca/2019/06/19/electronic-systems-are-trusted-far-too-much-as-to-producing-reliable-evidence-the-oland-example/ ; and,
    (5) “Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence” (Slaw, April 19, 2019); at: http://www.slaw.ca/2019/04/19/challenging-electronic-systems-and-devices-ability-to-produce-reliable-evidence/ .

  2. I’ll ask the elephant in the room question.

    You acknowledge that oversupply is going to be a real issue affecting students’ lives and career outcomes (“…we will all have to face the reality that many more qualified lawyers will not in fact practice law” — your words).

    And you criticize lawyers who advocate for Law Societies to take any action on the oversupply, characterizing these “sentiments” as “ignorant or oblivious… and indeed illegal…”.

    This would appear to leave it up to the law schools to address oversupply. You’re the Dean of a law school that has more than doubled its class sizes in a relatively short period of time — how do you see your role in all of this?

  3. Thank you Mr. Dodek.

    I’m not a lawyer but I find that very interesting. Some information it may take me a while to digest. A reminder that despite a Canadian tendency to very provincial thinking we are living in a global world.

    Perhaps another elephant in the room question is why then do we have a very large and apparently growing number of SRLs showing up before our tribunals and in the courtrooms.

    I know that question has been raised before, but I don’t think it has been answered.

  4. That is the same issue and questions I was going to ask – Canadian law schools have expanded their student bodies in the last 15-20 years to capitalize on the demand for legal education, even though the market for articles and jobs is just there to absorb the numbers of graduates.

    uOttawa grew the most when I was there – the entry class size when I was there went from about 240 to 360 by the time I finished. The Dean at the time made the point during a talk on the subject that there was no point ‘leaving money on the table’ saying that it was better to expand and get more tuition revenues than let it all go overseas. That said, I kind of agreed with Dean’s proposition that it wasn’t the law school’s job to ensure everyone got a job – they just teach you enough to get a JD, the market and Law Society need to pick up the slack and take responsibility post-grad. The reality however is that in this profession, it needs to be a coordinated effort between the universities, Law Society, and the market to ensure the quality and integration of quality candidates into the work place. That best serves the interests of the profession and the public in the long run.

    The question is whether or not law school Deans in Canada, knowing the market for lawyers remains saturated, want to dial down the number of entrants and focus on quality of education to justify the inevitable tuition increases. Less sessionals and more full-time profs with actual legal experience, more actual practical training, and teaching complementary skills such as legal project management, e-discovery/practice management applications, and lawyer roles in the broader context of business, engineering, financial or government practice contexts – legal practice does not function in a silo.

    In practical terms, the simplest and most effective solution to the problem, dare I say it, is for the Federation of Law Societies/NCA to get with the times and stop handing out Certificates of Qualification like candy, including to graduates of online law schools. If you couldn’t get into a Canadian law school, which requires an undergraduate degree beforehand and some minimal vetting via the LSAT (flawed as it may be), why should you be so readily able to bypass those earned Canadian qualifications because you can afford to go abroad then come back, get a certificate with little to no additional work in most cases, automatically get into the LPP, and get licensed with less work? Foreign trained lawyers ought to have to go through more thorough re-training in Canada and meet the undergrad requirement at least. Employers too, as part of their considerations, should consider where their candidates got their education and how they qualified.

    There is still much room for better in the coming decade.

  5. Also, to say (as Adam Dodek states above), that law societies are now concentrating on practice skills and leaving “learning the law” to law schools, is subject to the fact that law societies’ (especially the Law Society of Ontario’s) demands that law schools produce “practice-ready lawyers,” meaning, in addition to “learning the law,” law school graduates know all about running a law office and serving clients, etc. Read the strongly expressed objections of Professor Emeritus Harry Arthurs’ articles in the Alberta Law Review (vols. 33 (1995) & 51 (2014)) to that demand. [Prof. Arthurs of Osgoode Hall Law School at York U. in Toronto.] Law society benchers’ constant worry about having enough time to be good practicing lawyers as well as competent bencher-managers of their law societies, must always put them on the lookout for ways to have law schools do more, and benchers do less in regard to making and keeping lawyers competent and ethical. It is no longer possible to be both a good lawyer and a good bencher because now is no longer the 19th century.
    Being a working lawyer, is how a lawyer earns his/her reputation and skill, and income, and where he/she can get into trouble if their clients and employers are neglected. Instead, there being no pressure to be good 21st century law society managers means no innovation, because governments give law societies a “free ride” by not holding them accountable for their growing incompetence as they stay unchanged as the world around them should be making change mandatory. We all suffer the consequences of law society inherent incompetence, being as they are increasingly historical and embarrassing anachronisms.

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