Raising the Bar

Preparing for the bar exam was one of the most challenging things I have ever done.

I attended law school because I wanted to use the law to foster systemic change. I knew law school would be challenging. And it was, not just due to the work load, the social pressure and job application process, but also because the road well-travelled for law students is a corporate one. The law is conservative, slow changing and it looks backwards. Nevertheless, I flourished by taking a mixture of ‘black letter’ law classes, critical theory seminars and clinical legal programs.

Students often talk about taking a breadth of classes to prepare for the bar. For the barrister exam, the topics include professional responsibility, civil procedure, family law, criminal law and public law, which encompasses both administrative and constitutional law. These numerous topics comprise approximately over six hundred pages of self-study materials.

The solicitors exam tests professional responsibility, wills and estates, real estate and business law, which includes bankruptcy/insolvency, business organizations and corporate tax. These materials comprise over seven hundred pages of materials.

The idea behind professional licensing is, according to the Law Society of Upper Canada (LSUC) website, to test on “competencies…required for entry level practice, that have the most direct impact on the protection of the public and that influence an effective and ethical practice.” All licensing candidates must take both the solicitor and barrister exams, regardless of if they only want to be a barrister or solicitor.

I should disclose my bias: I have no desire to be a solicitor. Therefore it greatly irked me to read an entire chapter on the conveyancing of cottages, which included a discussion of the type of septic systems involved in such a transaction. In contrast, the section on the Charter of Rights and Freedoms, which encompasses an overview of the Charter’s interpretation, application, rights and remedies, was devoted an almost equal number of pages (7 pages for the Charter, and 9 for cottage properties, respectively). That a candidate who completed their legal education abroad could return to Canada and pass the bar knowing little about the Charter, but more detail about a class IV septic system in a cottage property blew my mind.

Similarly, the criminal law materials are procedural in nature with little substantive content. Yet, we were tested on the substantive elements of selling a condominium, how corporations can pay lower taxes through increasing annual bonuses to the owner/manager and secured creditor priorities.

I realized that I have a different idea of competency and professional responsibility than LSUC.

I began to formulate a critical theory thesis on the bar exam materials.

Wanting to be open minded, I solicited others’ opinions. Some responses I got included that the majority of practitioners in Ontario practice business or real estate law, so it justifies these topics comprising the bulk of the materials on both exams (305 pages and 284 pages, respectively, out of 1335 pages in total of study materials). Others suggested that it is in these two areas of law that practitioners get sued or face the most increases in their professional liability insurance. By focusing on these topics as core competencies, LSUC likely fulfills obligations to its insurer and may lower premium rates.

The problem is that both of these above responses imply that other fields of law do not raise complex professional and ethical issues, or, are simply unimportant regarding the ‘protection of the public.’ Areas of public law such as criminal or immigration/refugee law (oddly entirely absent from the exam materials) raise highly pertinent professional responsibility matters that lawyers are faced with every day in Ontario. However, these clients often lack the financial means to sue lawyers, or may not feel empowered to call the Law Society to make a complaint. They are not involved in multimillion real estate deals or corporate mergers. In this way, the existence of marginalized persons who are overly policed, and have multiple interactions with different parts of the legal system, are erased as clients. They cease to exist.

The bar exam was the final piece of my legal education. It represented a certain idea of ethics; an assumption of who my clients might be (who comprises the ‘public’ in need of ‘protection’) and what substantive knowledge is important to be a legal practitioner in Ontario. I certainly think we, as a profession, can do better, not only regarding a notion of core competencies, but also in terms of a more robust understanding of justice and ethics.

Emily Dixon is a graduate of the University of Victoria, Faculty of Law. She lives and is articling in Toronto.