Cultural Competence and the Next Generation of Lawyers and Lawyer Regulation

Every year, I have the pleasure of teaching first year law students at the University of Ottawa in a dispute resolution and professional responsibility course. A big part of the course involves having students gain “hands-on” experience through simulations where they interview clients, write client advice letters, negotiate with opposing counsel and conduct mediations. For someone with a passion for legal ethics like me, the course is extra fun because this practical experience is coupled with extensive instruction on professional responsibility issues. Among other things, at the end of the term, the students write a final paper reflecting on one of the core professional competencies that they have learned about in the course.

Reading these papers always sheds interesting light on the students’ perspectives on some of the pressing ethical issues that the legal profession faces today and which the students will face as they begin their careers as lawyers. This year, many students chose to write on cultural competence and their belief that law societies should do more to help lawyers gain skills in this area. It was inspiring to see students so interested in an important emerging issue in lawyer regulation.

The idea that law society interest in lawyer competence might stretch beyond “typical” lawyering skills, like drafting court documents or looking up statutes, is relatively new. Indeed, as I have written about elsewhere, whether Canadian law societies even have the jurisdiction to regulate lawyer competence at all was an open question as late as the 1970s. Thankfully, lawyer competence is now firmly in the bailiwick of Canadian law societies. Even more exciting is the fact that law societies are starting to see and treat the issue of competence more holistically and as including matters like lawyer wellness, technological competence and, yes, cultural competence.

A number of Canadian law societies have already taken concrete steps to help lawyers become more culturally competent which, as noted in this LawPRO article, simply means “being able to effectively connect with people who are different from us – not only based on our similarities, but also with respect to differences.” The Nova Scotia Barristers’ Society, for example, now provides in-person training and has prepared a series of short videos on the topic. In June 2016, the Law Society of Upper Canada identified cultural competence as a “key component” of its new Certified Specialist Program in Indigenous legal issues.

Emerging law society interest in cultural competence is great to see given its implications for ensuring that more individuals can effectively access justice. This interest is all the more important in light of the Truth and Reconciliation Commission’s specific call “upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations.”

To be sure, there are many practical questions about how law societies should tackle the issue of cultural competence. Should a duty of cultural competence be incorporated into professional conduct rules? If so, how could such a duty be enforced? Would more education and training be a better route? If so, who is best placed to deliver this training? Law schools? Law societies? Law firms? All of the above? Indeed, these were the very questions that students were raising and grappling with in their reflection papers in my course.

Easy answers to these questions seem elusive. It’s hopeful and inspiring, however, that first year law students are already thinking about these questions and pondering potential answers. The profession has already come along way from several decades ago when competence was seen as mostly a private matter between lawyers and clients. Looking at what today’s law students are thinking and writing about, there is no doubt that our vision of what good lawyering is will continue to evolve, as will our thoughts about how regulators can best help the profession serve the public in new and better ways.