The Law Practice Program Should Not Be Integrated Into Canadian Law Schools
The time to think boldly about legal education is now
This is a time to think boldly about the possibilities for legal education and law schools. Recent posts on this blog testify to a renewed interest in re-examining the education of lawyers. As legal educators, we should be unafraid to question all aspects of our approach to legal education, even those practices that are so familiar that they seem beyond review.
For that reason, Lakehead’s proposal to integrate a law practice program within the confines of their three-year law degree might be lauded. Students who graduate from Lakehead will not need to complete an articling period to be called to the bar. The required skills and time in a practice setting are integrated into their three years of study.
The Lakehead plan might make sense, for Lakehead
Lakehead has a clear mandate: provide training to students who want to practice law in non-metropolitan areas, in smaller firms, presumably primarily in Northern Ontario. In a part of the country that professes to be short on lawyers, arguably a successful program would not require graduates to head to Toronto to article. If they did, many of them may never return to work in Northern Ontario. The mandate of the school would remain unfulfilled.
But before other law schools adopt a similar law practice program they should contrast Lakehead’s unique situation with their own. Osgoode has an articulated commitment to being a global, research-intensive law school; U of T has modelled how a law school might embrace interdisciplinarity; McGill has cut its own path with its transsystemic approach; Calgary has developed an outstanding skills program. It’s not clear that any of these schools would provide a better legal education to their students by committing their energy and resources to provide every student with a practice-environment placement and the equivalent of four months of skills-related courses.
For some students, a Lakehead-like model of legal education might be ideal. And in almost all of our schools, those students can make course selections that allow them to do just that. At Schulich, for example, about a third of our graduating class choose to spend four months in an intensive, well-supervised clinical setting. Given our breath of courses and our outstanding part-time faculty, students could also enrol in a full term’s worth of skills-based courses of the sort that the law practice program envisaged by the Law Society of Upper Canada demands.
But here’s the reality: most of our students don’t make those choices, even though they are already available.
Do we need to build a better mousetrap?
Should law schools further concentrate their resources on producing practice-ready lawyers? In my opinion, no. And here’s why: the notion that law schools should output practice-ready lawyers rests on a misunderstanding about the attributes of a well-educated lawyer and about the role of the law school in laying a foundation for life-long learning.
Admired lawyers are invariably those who:
- have a deep and broad knowledge of important subject areas of the law and the values, policies and principles that underlie them;
- understand the potential and limits of legal institutions and their essential characteristics in a society committed to the rule of law;
- have the ability to recognize and to define legal and public policy problems clearly, and to contextualize and view them from multiple perspectives;
- are able to identify the arguments and interests on all sides of any issue;
- appreciate the inherent ambiguities of language, the variety of potential meanings in a particular formulation, and who have an understanding of how context gives meaning to terms but also about the ambiguity of context itself;
- are able to determine the relevance of the methods, theories and findings of other disciplines to legal and public policy decision making; and
- have a deep appreciation of the multiplicity of factors that explain both legislative outputs and judicial decisions.
This list could go on, but the point is clear: the acquisition of the skills and knowledge of a well-educated lawyer is complex and difficult. That is the reason law schools are located in universities. And it’s the reason why we devote a significant amount of time to concentrated study in an academic setting.
Do we need to move beyond the “learning to think like a lawyer” mantra?
Yes and no. No one doubts that successful lawyers also have to be good at managing their time, running a business, working with clients, negotiating settlements, and drafting documents. Law schools should provide opportunities for students to build these skills. However, law schools should not be preoccupied with them in the same way they should be preoccupied with developing the knowledge base and cognitive attributes listed above. Important though they might be, practical skills can be learned in continuing legal education programs, from mentors, and yes, through the self-study for which a law school education should have prepared students. Good lawyers, like good law teachers, never stop learning. As John Dewy famously said, “education is not a preparation for life; education is life itself”.
Law schools cannot come close to preparing students for all the things they will experience or the challenges they will face in practice. But if they do not provide them with a full opportunity for acquiring the kinds of difficult-to-acquire-but-vitally-important skills that are demonstrated by well-educated lawyers, then law schools will have cheated students out of an incredibly valuable educational opportunity, will perhaps have limited their possible lifetime achievements, and will have deprived our society of a group of influential critical thinkers so essential to a flourishing democracy and a global marketplace.
Don’t get me wrong. I think we should all look carefully at our law school’s programs. It’s time for renewal. We can do better, I am sure. Kudos to Lakehead for thinking boldly. I hope the rest of us chart our own paths.
Dean Brooks is spot on. Lakehead is in a unique position and fills a geographical gap in law school education. What they are doing is laudatory. On the other hand, the other law schools should take advantage of the precious little time they have to impart the kind of foundational education that lawyers need and will not get elsewhere. Integrating clinic work is a valuable tool to enhance traditional legal education as it gives the students context. But it should be nothing more than that. The LSUC needs to turn back the clock and bring back a bar admission course offered to all (at a fraction of today’s exorbitant price) that adddresses the practical aspects of the practice of law. Take a look at the excellent program that the LSBC runs. We used to have that in Ontario. A shame that it’s gone.
“But here’s the reality: most of our students don’t make those choices, even though they are already available.”
They may be “readily available” but try navigating course selection, mandatory courses, exam timing, etc and it can become very difficult to fit in a clinical elective into a course schedule.
In her thoughtful and eloquent blog, Dean Brooks gives many good reasons for law schools to resist further concentrating their resources on producing “practice-ready lawyers”. Here is one more.
There is no consensus at Law Societies as to what practice legal education is training students to be ready for. There is no such consensus among employers of those law graduates, either.
For evidence of this confusion, one need look no further than the list of competencies articling students are to master in order to pass the bar in Ontario and the Articling Goals and Objectives which the Lakehead program is designed to meet. Articling students are, at least in theory, expected to do everything from analyze a NUANS search, to draft appropriate documents in a child protection proceeding, to attend at a custodial facility to interview a client. Students must know how to use trust accounts, prepare witness statements and docket their time. From the purely administrative task (“learn process for recording expenses and disbursements”) to the complex (“prepare written report of options and strategy based on the articling candidate’s research and investigation”) and the critical (“learn proper usage of precedents”), the competencies to be mastered are as varied as legal careers are diverse.
And that’s the point. We cannot train students to be “practice-ready” for every possible career in law. Our mandate is to educate future lawyers who can understand and critically analyze facts and law, in all of the ways that Dean Brooks has listed in her post. Our hope is that students enter the profession well-rounded, intellectually curious, and committed to promoting justice in the broader sense.
Is curriculum reform to be encouraged? Absolutely. Integral to any reform effort will be a focused and principled enunciation of the competencies to be mastered. Law faculties must determine what those should be. Some of the skills listed in the Articling Goals and Objectives are fundamental to legal education and are already being offered. Like Schulich, Windsor offers one semester, full-time clinic placements as well as part-time clinic work. First year students devote an entire year to learning about legal research and writing. But students also have to develop their legal reasoning skills, a moral and professional identity, and an understanding of the access to justice issues that plague our society. For the student dedicated to a career in human rights advocacy, there are courses and fellowships to help prepare him. For the student embarking on a career in corporate litigation, there are other courses and offerings better suited to her objectives. Both students need not just skills training but time and space to engage meaningfully and critically in the jurisprudence and with each other.
Law students can’t possibly graduate knowing everything there is to know about being a [fill in the blank] lawyer in [city/town/rural area], but they will know to ask the right questions and find the answers. Given the many, many paths graduates take, it is hard to imagine a monolithic model of legal education that will make them “ready” for all of them.
Lakehead should be seen as a laboratory for a different kind of law school. Its mission is patently one of producing practitioners for the Northern Ontario communities the school serves, and I am confident it will succeed.
There will be pressure, mostly economic, on other schools to offer the no-articling / no-LPP model. I think it would be wrong to go that way as a universal option, because lawyers across Canada have to develop intellectual skills before their abilities are confined by practical education. Training can be empowering, and it can also be limiting. Preventing the latter will be Lakehead’s challenge.
This topic also opens up a broader discussion of the public interest jurisdiction of law societies. Should professional standards should be shaped by the market? Should law schools bend to student as ‘customers’?
Members of the public engaging a lawyer in any form of litigation want to hire the best lawyer money can buy, and usually clients start to believe they’ve done that. (Eg. Toronto’s Mayor saying that his lawyer is the “best lawyer in the world.”) Similarly, corporations negotiating deals, large and small, want clever lawyers who help transactions happen and secure favourable terms. I’d like to think that these public expectations correspond with intellectual rigour. But maybe the public’ head is turned more by a track record of getting people off traffic tickets, or by a ‘tough’ negotiator.
In contrast, most clients in residential real estate deals begrudge having to hire a lawyer at all; and often choose the one recommended by their realtor. They also often wonder why vendor and purchaser can’t hire the same lawyer, and some lawyers oblige!
Depending on whom you ask, the public expects the best or has no expectation at all. The law society says it is not its role to ensure you get the best lawyer in town (or the world). Should it be? Do we need to get the enabling statutes amended? At the less-appreciated end of the market, the law society has to step in as parens patriae, because the public doesn’t appreciate how important it is to hire a good lawyer on a house purchase or sale.
So legal excellence in public perception is a bit like Rushdie’s famous discussion of God being dead or alive: God is on life support in many parts of the world, but boy is God ever alive in others, and sometimes you pray to God ‘just in case.’
I am puzzled by the approach contrasting Lakehead’s program with that of other universities. In part, the apparent presumption that all other law schools seek to prepare students to practice in metropolitan areas in large firms seems somewhat peculiar given both the number of non-Northern small towns whose residents require legal services, and the number of small(er) firms, including prestigious boutique firms, operating in metropolitan areas.
Mostly, though, this article seems to set up a dichotomy between the educational needs of someone practicing in Northern Ontario and someone practicing elsewhere in the province. Granted I’ve only practiced in the Ottawa area myself, but I’m unaware of anything in the Criminal Code or Family Law Act that suggests murders and divorces are simpler the further north one goes.
So somehow, practice-ready and well-educated are categories that exclude each other? Or universities, despite their magnificent tuition fees and pre-eminently scholarly faculties can only manage to teach one or the other?
Truly, I would hope that is not the case. And, in contradiction to her main argument, Ms Brooks suggests that most law schools offer students the option of choosing to take a number of classroom/clinic hours equivalent to those in the Lakehead program without missing instruction in critical thought. Ms Brooks suggests that most students do not choose to follow that path, and I would suggest that the reason is not that it is less desirable, but rather that since it would not be accredited towards the LPP or articling, students don’t wish to pay to learn in one program something they may be forced to pay again to learn elsewhere.
If it is true that “admired lawyers” are a monolithic class determined by the admittedly admirable characteristics set out by Ms Brooks, then LSUC should be ensuring that all areas of the province have equal access to law school graduates who have the capacity to grow to be both admired and admirable. To conclude otherwise is to suggest that LSUC essentially decided the North did not matter, that students at Lakehead’s school of law did not deserve an equal chance to become the future leaders of the profession, jurists, and possibly even deans of law schools in their turn.
While my inner cynic is swift to find the reason for considering the Lakehead program “less than” rather than “different from” in the metropolitan mind’s easy disparagement of the rural, or in white Canadians’ racist views of a campus that hosts 10% Aboriginal students, I would hope that neither of those is the underlying rationale here.
An alternative, of course, is resistance to change merely on the basis that change is … unsettling … uncomfortable … possibly even threatening if one is sufficiently set in one’s ways. If students are given a choice, not merely on whether they spend a term or two at a school’s legal clinic, but whether they can take courses that would grant them accreditation needed to sit Bar exams without articling, it is likely that some (many?) would do so. This may result in fewer faculty teaching courses on theory for the sake of theory, and possibly some faculty having to reacquaint themselves with the practice of law. But none of that should result in an overturning of the ivory tower. Nor should it result in a sudden outpouring of lawyers who understand a balance sheet better than they understand the values underpinning the rule of law.
All that said, I agree with the thesis that legal education requires some bold thought. My definition of bold would begin with bringing in a historical perspective to understand how the study of law moved from trade and apprenticeship base to an academic base. That needs to be done with a mind open enough to believe that there are lawyers called to the Bar in Ontario prior to the 1950s who were just as admirable as those who attend academic law schools, so that “admirable” becomes a term accessible to a variety of forms of legal education.
To balance the historical perspective, a bold envisioning would also include — at least in Ontario — discussing the education of all licensees, not only lawyers. The role of accredited Paralegal education programs is also in flux, and many of the presumptions being applied to them are taken directly from ideas on trade education. There is, for instance, a “standard trope” [1] in paralegal education that graduates must be practice ready. Does that short change paralegal students? How will it impact their ability to fit into the justice system as colleagues “different than” (and more limited in scope than) but not necessarily “less than” lawyers?
Essentially a bold approach would involve making sure that re-visioning legal education wastes a minimum amount of time on reinventing wheels that have been argued over, rounded off, and invented several times before. It would also put all the ideas on the table at once, so that LSUC does not waste time –and our membership dues– reinventing the law school wheel only to have to re-reinvent another wheel for paralegals. That is not to suggest that both licensees should have the same educational requirements, merely that ideas on how to improve one, should be examined in the context of improving the other.
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[1] Term used by Sarah Glassmeyer in describing the presumption that law students are not practice-ready upon graduation. http://www.slaw.ca/2014/02/24/lets-chat-about-new-lawyer-training/
I am a little surprised that in this largely helpful and interesting discussion there is no mention of some practical realities. First the market for young lawyers is a tough one and that is not going to get better in the near future. Second law school is expensive. One would think that many looking to have a career in law would weigh the expense (in many cases student loans) against the pay back (a job that enables one to pay back those loans). The implications of the LPP and creating practice ready lawyers on over all cost surely has to be part of the discussion. It also has diversity implications
Law schools should offer a LPP during 1L summer when most law students are under or unemployed anyway. Or it could be offered to those who don’t have summer positions in 2L.
Dean Brooks’ comments appear to be her opinion in support of the current comfortable monopoly and status quo of Canadian law schools. It misses the stream of criticism of the failures of legal education –eg Arthurs, Carnegie Report, Tamanaha etc. It misses the perspective of thousands of law students who are trying to avoid high debt and low employment. Some of those students may prefer to choose shorter, cheaper and more “practical” law degrees, rather than the traditional longer, more expensive and more theoretical law degrees?
If a law school in the future offered both traditional and LLP streams in the same time frame, and for the same cost to students, I wonder which would be more popular?
Her list of the qualities of allegedly “admired lawyers” is not supported by any research I have read –those researched lists are dramatically different especially if ranked. Again, is Dean Brooks’ list a self-serving one suitable for the status quo of existing law professors?
Many law schools have appointed tenured professors who are incapable and unwilling to teach labour intensive LLP subjects. Can these law schools afford to add LLP into the three year curriculum without removing one third of their tenured staff?
Dean Brooks’ final wish is “I hope the rest [of the law schools apart from Lakehead] can chart their own paths.” This is a strange wish for self interest, status quo and self direction on the part of law schools. Public law schools are funded largely by Canadian taxpayers; and have been subjected to an avalanche of historic criticism; and have also been granted a monopoly to attract students who want access to the legal profession—not to “chart their own paths.”
Practical and applied training is integrated into other professional degree programs like medical school and engineering, so why not law?
I find it fascinating that the debate is largely centered on what is best for the profession, lawyers and the law – not the clients that the law and lawyers are serving. It really doesn’t matter how smart and principled you are if no clients are willing or able to pay for your services.
Basic skills focused on (i) understanding the client’s context, perspective and needs and (ii) financial and managerial aspects of running a successful practice would go a long way to ensuring that lawyers truly do “ask the right questions and get the right answers” in a way that clients value and pay for (important factors in a sustainable practice).
As it is, the prevailing law-focused perspective of most lawyers (including many very smart and well-meaning ones) results in their providing impractical, costly and/or hard to understand advice (a recitation of applicable law is not effective advice).
Until you have been a client (either professionally or personally) it can be difficult to recognize or acknowledge the issue. Trust me, it is there. While clients too have room for improvement (having unrealistic expectations and begrudgingly paying bills rather than managing issues are common and unhelpful client behaviors), frankly the onus on making improvements should come from the lawyers as they are the service providers.
Exposure to universal practical skills in law school would be a great start to helping lawyers better set and manage their clients’ expectations and ensure that lawyers establish sustainable, rewarding practices. Based on presentations and workshops that I have led at three different Universities, students love it and are eager for more.
Great article linking the new Lakehead program to access to justice, yet appreciating the different needs of different law schools. I respect the different goals that law schools pursue, but I always ask myself what can we be doing to better address the access to justice crisis facing our country?
I’ve recently looked at the new Law Practice Program, another innovation in lawyer licencing, and argued that it will potentially improve access to justice in the long run.
See blog entry here: http://legalinjustices.net/2014/02/28/the-new-law-practice-program-and-the-articling-fee-hike-taking-the-high-road/