Professional Responsibility as Reconciliation: Law School and Legal Obligations

An accused has a constitutional right to a fair trial and may raise concerns about race and discrimination if they identify it as an issue in their case. Furthermore, lawyers have an obligation to remind their client of this right. This very issue arose in R v Fraser (Fraser). In Fraser, a white student accused a Black high school teacher of committing “sexual improprieties”. The appellant raised concerns about racial bias both before and during the jury selection, but his lawyer nonetheless failed to tell Fraser that he had the right to challenge for cause. Upon being convicted, the accused asked for the verdict to be overturned. This appeal was made on various grounds including that Mr. Fraser’s lawyer failed to tell him that he had the right to challenge possible jurors as to whether their ability to judge the evidence would be unbiased considering he was a Black man and the complainant was a white female student. After appreciating the totality of the case, the judge found that lawyer’s conduct amounted to incompetence, which was a miscarriage of justice. The holding at appeal in this case begs the question: should a lawyer be culturally competent and if so, when should that training begin?[1] I argue that lawyers should be competent in the societal issues that impact their clients in order to provide quality legal services. Such issues would include being aware of systemic racism and the legal system’s impact on marginalized people.

Competence and Quality of Service

As it currently stands, the rules concerning competency do not adequately capture what it means to be a lawyer in Canada today. A “competent lawyer” is defined as one who possesses and can apply “knowledge, skills and attributes” in a manner that benefits the client. This rule overlaps with a lawyer’s duty to provide quality legal service, in that competency impacts the quality of service that can be provided.[2] A connection is further drawn between legal education and competency as the rules also goes so far as to say that a competent lawyer should pursue professional development to remain competent, and to strengthen their legal knowledge and skills.[3] However, such training should begin sooner. Cultural competency training should begin in law school so that newly admitted lawyers are better equipped to provide quality legal services to their client.

The Current Law School Model

Law school teaches students a new mode of thinking, aside from critical and legal analysis. At most Canadian law schools, the required first-year courses that we take to develop such skills are: Alternative Dispute Resolution, Constitutional Law, Contracts, Criminal Law, Property Law, Public Law and Torts. But, how can we learn about criminal law without understanding systemic racism? How can we learn about property law or constitutional law without understanding the colonized history of Indigenous Peoples in Canada? Moreover, how can we study public law without also discussing the lack of racial diversity on the judiciary?

The University of Ottawa Faculty Law allows first-year law students to take a thematic course of their choice so that students can get a taste of what’s in store when we are upper-year law students. As first-years, we can choose from courses such as: “Cyber Feminism”, “Natural Resources Law” and “Disability Rights Law and Social Justice” taught by leading professors in the legal field. In my first year of law school, I opted to take “Aboriginal Legal Mechanisms” taught by Professor Larry Chartrand. More than wanting to learn about Indigenous legal principles for the sake of interest, this decision was also a political one: learning about various Indigenous legal traditions should be mandatory for all law students. Accordingly, the course should not be seen as an optional “social justice” one; Indigenous law should be seen as a third pillar of law, alongside common law and civil law. Indeed, such education and intersectionality of the law school curriculum would aid in enhancing the competency of law students so that we can provide quality legal services as lawyers.

What We Can Learn from Allard Law, Bora Laskin Faculty of Law and Robson Hall

The University of British Columbia Faculty of Law has made Aboriginal Law a mandatory part of their curriculum. As of September 2012, all incoming law students must complete an Aboriginal Law course as part of their learning of Constitutional Law. This decision was not only to comply with the Federation of Law Societies of Canada’s 2015 national standards, but also because the law school wanted its graduates to be competent in Aboriginal rights.

Lakehead University’s Bora Laskin Faculty of Law, which houses the first female Indigenous Dean at a law school, has also made Aboriginal law mandatory for its law students which was in line with the recommendations made by the Truth and Reconciliation Commission (TRC). More recently, the University of Manitoba has also moved forward with the TRC’s recommendation #28, and as part of the curriculum review process, has proposed that competency in Indigenous Legal Traditions become mandatory in their Juris Doctor program. Thus, this shift in the law school climate demonstrates the value in cultural competency and how it can improve upon solicitor-client relations in the long run. Appropriately so, a national standard should be adopted at all Canadian law schools so that we graduate as culturally competent law students who are aware of the intersectionality of the law with social issues, and can sincerely represent our clients resolutely and honourably.

Conclusion

The law school curriculum can play an integral role in addressing the micro and macro-ethical issues of cultural incompetency. On a micro level, a lawyer would be better equipped to provide quality and competent legal services. On a macro level, it may restore trust in lawyers generally, and may also reduce the number of lawyer complaints based on the lack of knowledge of structural discrimination.

If we truly want to be great lawyers and provide quality service to our clients, cultural competency should be taught as soon as we enter law school doors; it should not be an option as without it would be a disservice to our future clients. To avoid another R v Fraser, our clients expect a certain standard and our profession demands it. It is due time that we all set the standard for future, incoming lawyers.

Samantha Peters is a third-year law student at the University of Ottawa Faculty of Law in the English Common Law Program. Researching and writing on cultural competency for lawyers and judges alike in Professor Adam Dodek’s course on Professional Responsibility and Legal Ethics has inspired this blog post. A special thank you to Naomi Sayers for her comments on this paper.

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[1] Alice Woolley et al, Lawyers’ Ethics and Professional Regulation, 2d ed (Markham: LexisNexis Canada, 2012) at 166.

[2] The Law Society of Upper Canada, Rules of Professional Conduct, Rule 3.2-1.

[3] Ibid at Rule 3.1-1(j).