\n<\/p>\n
You might have been wondering what I\u2019ve been up to lately, or why I\u2019ve written so little here in the past several months. Okay, you weren\u2019t wondering about that at all, but the answer is this: I\u2019ve been immersed in a major project for a Canadian legal regulator that I\u2019ve had to keep under wraps for some time, but that I can finally talk about more openly.<\/p>\n
Back in May, I presented to the directors of the Law Society of British Columbia (the regulator of legal services and governing body for lawyers in B.C.) a report recommending a fundamental change in the lawyer licensing system in that province. Last week, the directors accepted that recommendation, setting in motion a process that I believe could eventually transform the legal profession in Canada, and maybe in the U.S. as well:<\/p>\n
BE IT RESOLVED the Law Society develop a competence-based system for lawyer licensing in British Columbia, beginning with the development of a Competence Framework that identifies the knowledge, skills, and other attributes necessary to perform the essential duties expected of, and entrusted to, lawyers in B.C., as well as the threshold levels at which these competencies should be performed at the point of licensure.<\/em><\/p>\n That resolution was contained in this note<\/a> to the law society directors (\u201cBenchers\u201d) from its Lawyer Development Task Force. It was based upon my 80-page, 27,000-word report to the Task Force titled, \u201cA Competence-Based System For Lawyer Licensing in British Columbia\u201d<\/a>, which is now publicly available on the law society\u2019s website. I invite you to click through and read it, because I think it really matters for the future of lawyer licensing \u2014 and not just in British Columbia.<\/p>\n Why do I think this report is so important? Because it should change the process by which people in B.C. become lawyers \u2014 abandoning an archaic, opaque, and exclusionary credentials-based system, and embracing a modern, transparent, competence-based system that will increase public and professional confidence in the ability of lawyers to do their jobs from Day One. It will bring lawyer licensing into line with other professions\u2019 admission systems, improve the quality of service clients receive, and go a long way towards defeating \u201cimpostor syndrome\u201d among new lawyers.<\/p>\n That\u2019s a tall order and a significant claim, and I\u2019ll go into some detail to explain it. But a few preliminary points first:<\/p>\n So, all of that said, here\u2019s a brief summary of why I felt a new lawyer licensing system was necessary in B.C. and elsewhere, what the new system will consist of, why it will usher in several positive developments for lawyers and clients, and what a basic \u201ccompetence framework for lawyer licensure\u201d would look like.<\/p>\n 1. Expired Credentials.<\/strong> The traditional requirements for a law license in Canada are obtaining a law school degree or its equivalent, passing a bar admission program, and completing an articling term. (In the US, it\u2019s just the degree and passing a bar exam.) All these requirements, to a greater or lesser degree, are basically credentials<\/em> \u2014 certifications by a third party that the candidate has completed a task or run a gauntlet overseen by this separate entity to which the regulator has essentially delegated the gatekeeping function. The regulator accepts completion of these credentials as a proxy<\/em> for the competence to practise law, without directly assessing the candidate\u2019s overall fitness to practise.<\/p>\n 2. Unidentified Competence.<\/strong> Upon what evidentiary basis does the regulator extend this proxy acceptance? How do we know that a law degree, a bar admission course, and a term of supervised practice collectively constitute an airtight case for competence? We don\u2019t. Apart from the notable exceptions above, no regulator can identify the precise knowledge, skills, and personal attributes someone must demonstrably possess \u2014 and to what level of proficiency \u2014 in order to become a lawyer. We don\u2019t have a detailed target definition of entry-level lawyer competence to which each of these credentials providers can refer when designing their programs or carrying out their responsibilities.<\/p>\n 3. Professional Consequences. <\/strong>Everyone suffers from our failure to design an established competence profile for lawyer licensing, but none more so than new lawyers themselves. Admitted to the practice of law unaware of what qualifies them for the role, frequently missing key elements of competence, they often feel overwhelmed and deeply anxious. Law firm employers, too, routinely complain that most new hires are unready to practise law and require basic training just to bring them up to a level of minimum ability. Clients of new solos or new lawyers who lack good workplace support (and there\u2019s a lot of them) will receive sub-competent service and might never know it. But the damage extends further, to the profession itself.<\/p>\n 4. Legitimacy Consequences.<\/strong> It\u2019s frankly kind of crazy that most jurisdictions have no official definition of entry-level lawyer competence. If a member of the public asks a regulator, \u201cHow do you know this lawyer is qualified to serve me?\u201d, that person wants to know what constitutes a competent lawyer and how the regulator satisfied itself that this person is one. It undermines the profession\u2019s claim to merit self-governance if the regulator can\u2019t answer the simplest question about the standards of quality control of new lawyers \u2014 especially when, in practical terms, a lawyer once licensed is a lawyer forever (short of gross misconduct), making the point of professional entry absolutely critical.<\/p>\n 5. Competence Frameworks.<\/strong> Regulators that can answer that question do so because they have identified in detail the multi-faceted profile of a Day One lawyer in their jurisdiction. Following lengthy study and extensive consultation with myriad stakeholders, they created a framework of overall competence in legal knowledge, ethical awareness, lawyer skills, and professional skills that reflected what a member of the public had the right to expect from a lawyer on their first day in practice. But they also were careful not to make this framework a \u201cwish list\u201d of ideal lawyer attributes, recognizing that \u201cDay One\u201d competence, while needing to meet minimum standards, ought not to be any higher than that.<\/p>\n 6. Licensure Validity.<\/strong> In order to be considered valid and just, the elements of professional licensure competence must be (1) knowable by candidates, (2) accessible to candidates, and (3) demonstrable to the licensor. That is, licensure candidates must be able to easily find out what the competencies are, be able to acquire those competencies in a fair and accessible manner, and be able to show the licensing authority that they possess the competencies. Failure by the regulator to ensure these conditions creates barriers to professional entry \u2014 a person who might wish to be a lawyer cannot do so because they couldn\u2019t discover the competencies, couldn\u2019t afford to obtain them, or couldn\u2019t equitably show the regulator that they possess them. The competence framework must be constructed with these three requirements in mind.<\/p>\n 7. Competence \u201cStarter Kit\u201d.<\/strong> I was very reluctant to give the law society my opinion on the proper constituent elements of entry-level competence in their province. That decision has to be made by experts with much more experience and proficiency than me, in consultation with a very wide group of stakeholders. But I was invited to consider that there would be value in giving the law society a sort of \u201cstarter kit\u201d of competencies in a suggested framework, in order to guide the earliest stages of the consultation process and give the directors a sense of what such a framework might look like. So after extensive research and reflection, I came up with the following:<\/p>\n 1. Knowledge of the law<\/strong> <\/em><\/p>\n 2. Understanding of a lawyer\u2019s professional responsibilities<\/em><\/strong><\/p>\n 3. The skills of a lawyer<\/strong><\/em><\/p>\n 4. The skills of a professional<\/strong><\/em><\/p>\n This all sounds sensible, right? There should be an official profile of a competent entry-level lawyer, and it should be used as the basis of a fair and accessible lawyer licensing system. That was the thrust of my single recommendation to the Law Society of B.C., and that\u2019s what the regulator has now resolved to do.<\/p>\n But \u2026 that single recommendation arrived less than a third of the way through my report. The balance of the report went on for another 40-odd pages, because you don\u2019t just recommend a fundamental change to professional licensure and walk away. I went on at some length to advise the law society: \u201cHey, listen: If you go down this path, you need to understand that a whole lot about how you educate, train, and license lawyers in this province is going to change, in ways that will shake the profession and maybe even transform the legal sector itself.\u201d<\/p>\n In a follow-up post next week, I\u2019ll describe the other changes to British Columbia\u2019s licensing system that I can foresee arising from this development, changes that will be noticed and maybe copied by other jurisdictions \u2014 including one that likely will make some law schools very unhappy. And in a post subsequent to that, I\u2019ll lay out my vision for an entirely new approach to lawyer licensure that I think every jurisdiction, including every US state, should consider and implement. There\u2019s a lot to unpack, and I\u2019m looking forward to the opportunity to show you what\u2019s here.<\/p>\n Although this is not a simple undertaking, I\u2019m optimistic that the example of the SRA\u2019s Statement of Solicitor Competence, as well as the fine work done in New Brunswick and the CPLED jurisdictions, will make the path to competence-based licensure in B.C. swifter and surer than it has been anywhere else yet. And that, in turn, should hasten the day when every lawyer in Canada (and eventually the US) is admitted not on the basis of having jumped through a bunch of longstanding, exclusionary, and inadequate hoops, but on the basis of demonstrated competence to practise law. The public in general, and clients in particular, deserve better from our profession.<\/p>\n I\u2019ll give the last word to an excerpt from the report\u2019s introduction:<\/p>\n The last twenty years have seen an astonishing amount of change throughout the legal services sector, in terms of public demands, client needs, lawyer specialization, law firm business models, technological capabilities, and justice system access. The last two years of pandemic life have transformed parts of our society in ways that would have seemed inconceivable in 2019. The future promises us only more change \u2014 faster, more disruptive, and more transformational.<\/em><\/p>\n We cannot continue to form lawyers \u2014 to educate, train, and license them \u2014 the same way we did fifty years ago, twenty years ago, or even two years ago. It is a disservice to our profession and the public we serve to pretend otherwise, or to merely make incremental, uncontroversial tweaks to an outdated and increasingly unfit system. We cannot continue to prepare lawyers for law practice in the 20th century nearly a quarter of the way into the twenty-first.\u00a0<\/em><\/p>\n<\/p><\/div>\n\n
\n
\n
\n
\n