The current Law Society model for licensing legal professionals in Canada provides all lawyers with a blanket license to practice in any area of law. Virtually every other major profession that exists today employs specialized licensing and certification in order to ensure the competency of its practitioners in an increasingly complex world. The current system used by the legal profession in Canada is outdated and in need of significant reform in order to protect clients and set minimum competency requirements.
The Law Society needs to reform the current licensing model in favor of one where lawyers are required to earn specialized licenses depending on their area of practice. Specialized licensing should be started in law schools where law students would select a set of practice areas in which they wish to specialize. Instead of traditional articling, new legal professionals would go through a specialized training and work program in that area. Lawyers would only be allowed to practice in areas where they were licensed, however there would be nothing preventing a lawyer from earning additional certifications throughout their career.
This model would have two distinct advantages. For potential clients it would provide the ability to shop around for a lawyer with more insight. Clients would be able to select individual lawyers with a greater degree of confidence, as they would be able to clearly identify if a lawyer had the proper qualifications necessary for their particular issue. For lawyers, this proposed model would allow them to effectively market their particular skills so they could more readily reach their target clients. Lawyers could upgrade their qualifications by taking additional courses and could then specialize in new practice areas without having to start from scratch. Ultimately lawyers would be able to move beyond the specific set of skills acquired during articling.
The concept of specialized licensing in the legal profession is not a new idea. Historically, and even in some commonwealth jurisdictions today, there is a distinction between barristers and solicitors. Barristers have the exclusive privilege of litigating in court while solicitors have the exclusive privilege of providing legal advice. In North America this distinction no longer exists as every lawyer is recognized as having the ability to act in court and to provide legal advice. While I do not feel that the Canadian legal field should adopt this particular distinction, I do believe that there is merit to establishing specialized licenses.
Currently, it is more or less assumed that new lawyers will article or work as an associate in the legal field that they will stay in and over time they will become a specialist in that area. Of course there are also continuing professional development courses and many overlapping areas of law and ultimately there is nothing stopping a lawyer from suddenly starting over in a new practice area. Generally however, people like to stay within their comfort zones which means lawyers will mostly work in an area in which they have effectively specialized.
Our current licensing model has the potential to be both limiting and dangerous. It is limiting in the sense that it makes it very difficult for an established lawyer to move into another area of law, in many ways changing practices would be equivalent to starting out as a new lawyer again. The potential danger is that a lawyer who does decide to practice in a new area of law is licensed to do so without any further training. Given the nearly limitless roles that lawyers play, the danger in this is obvious. A lawyer who has only ever worked on large corporate mergers could suddenly decide to defend someone charged with murder, facing life in prison (assuming the accused was inclined to hire them). An additional issue with the existing model is that there is no guarantee that during the articling phase a new lawyer will actually gain the skills necessary to be a competent lawyer. It seems more than probable that most new lawyers pick up bad or even ethically questionable habits during this stage of their training.
Specialized licensing is something that has been embraced by nearly every other professional designation. The medical field is probably the best example of this concept. Doctors are generally required to select a specialized area of medicine for their three-year residency following which they have the option to further specialize during a fellowship. To be board certified in an area, you are often required to take a formal exam. If the medical field were to follow the legal field, a brand new anesthesiologist would be certified to perform complex brain surgeries. This is obviously an absurd concept yet this is the reality of the legal profession. Aside from the medical field, we see specialized licenses in everything from scuba diving to accounting and engineering. Licensing is simply a practical way to ensure competency in any complex profession that has too many areas for any one person to master.
It is true that such a drastic reform would be neither easy nor without criticism. Opponents of additional regulation would argue that the profession has operated successfully for thousands of years without major issue. Additionally they might argue that the profession is so intricate and far ranging that it would be difficult to create licenses for all the areas lawyers have specialized in. These arguments however neglect the fact that every profession has the potential to improve and there is no reason the legal profession should not also adapt with the times. I would agree that it is nearly impossible to create specialized licenses for every specialization of law, however broader designations are entirely plausible.
While not necessarily easy to implement, if we consider the increasing complexity of the legal profession, there is a good reason, from a public policy standpoint, to require additional licensing. Why not add a more concrete level of protection for both lawyers and clients and ensure a high level of competency in the profession?
The author is a first year student at the University of Ottawa Faculty of Law and wrote the essay for Professor Dodek’s course on Legal Ethics.