The Law Society of Ontario is considering replacing the bar exam with a skills-based course including assessments.Sammy Kogan/The Globe and Mail
Philip Slayton is a writer who has been a member of the Ontario bar since 1979. His most recent book is All Remaining Passengers: Essays From the Edge of Eighty.
How do you decide who should be admitted to the practice of law? The question is not about full professional competence. That only comes after many years of practice. And competence is a slippery concept that can be endlessly redefined as circumstances and standards change.
The question is: Who should be permitted to enter the practice of law in the first place? What are the minimum standards that should be met before a lawyer is allowed to advise the public? Bar associations, in Canada and elsewhere, have struggled with this question for many years. Answers come and go. No answer seems to stick for very long.
Once again, the Law Society of Ontario is grappling with the question. A September consultative report of the Society’s Professional Development and Competence Committee concludes that the open-book multiple-choice exams introduced in 2006 (generally known as the “bar exams”) do not sufficiently assess so-called “foundational” skills required of lawyers. These foundational skills, the report says, include interviewing, legal research and writing, oral advocacy, negotiation, practice management, communications, client relationship management and professional ethics.
The report asks how the Law Society can make sure that lawyers “meet the entry-level competence standard required to practice law in Ontario.” (Regrettably, the concepts of “established standard” and “entry-level competence” are not adequately described or defined.) It proposes a new regime that will teach and then assess proficiency in the foundational skills, and recommends “that the Law Society adopt a mandatory skills-based course with assessments for all lawyer licensing candidates, which would replace the licensing examinations.”
Law Society of Ontario considers replacing bar exam with skills-based course
The committee’s report advances an odd mishmash of considerations to support its conclusions. Some of them are concerned principally with promoting the interests of the profession and its future members. The report emphasizes concerns that candidates routinely raise about current licensing examinations. For example: “Some candidates have expressed that writing the licensing examinations was extremely stressful and took a significant toll on their mental health.” The Law Society itself has an axe to grind: “The licensing examinations are resource intensive and costly to develop and deliver.”
Ontario Attorney-General Doug Downey disagrees with the committee’s profession-centric approach. He opposes elimination of the bar exam. Mr. Downey told The Globe that “the job of the law society is to protect the public, not to promote lawyers... [T]hey need to make sure they have objective standards for admitting people to the bar.” He believes that “an objective, written and rigorous test is an important part of proving new lawyers are ready to practice law.”
The Attorney-General is right. But there are more objections to the committee’s proposals than those of Mr. Downey. It is naive to belief that a course can teach a “foundational” skill such as writing, oral advocacy or negotiation. Development of these skills is the continuing work of a professional lifetime.
Ontario’s Attorney-General says he doesn’t support scrapping bar exam
Good writing is a craft developed over many years. No senior barrister of repute credits his advocacy skill to a course that he took. No adept negotiator was taught how to negotiate well.
Rather than making a futile attempt to front-load wisdom and skill, the Law Society should develop robust programs that help members of the bar hone their ability as their careers unfold. Development of the existing anemic Continuing Professional Development program (which requires only 12 hours of vague effort a year) would enhance professional competence and be in the public interest. And then there is the ultimate backup to the competence system: an effective complaint and discipline process, transparent and easily accessible by the public. Such a process does not now exist.
This tedious issue must be put in context. If the public interest is paramount, as the Attorney-General says it is, talk of courses and entry-level competence is trivial, if not meaningless. Almost 20 years ago, I published a book called Lawyers Gone Bad. In the conclusion, I wrote: “How much justice can the average Canadian afford? None. For financial reasons, he is denied use of the legal system and courts...”
Things have not changed during the last two decades. The poor and the middle class still cannot afford to hire a lawyer, competent or not, for non-routine matters, leaving the field of justice to the rich, to corporations and to government. What good is competence if there is no access? Instead of focusing on the bar exam, it’s time to tackle the big issues.