a common law degree for canada oba council debate backgrounder december 3, 2010 1

A Common LawDegree for Canada

OBA Council DebateBackgrounderDecember 3, 2010

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PREMISE OF THIS DEBATE

• Public image of lawyers tied to the formation (fr.) of lawyers:– Public resists paying for educating lawyers graduating

without skills, believes law societies exist to shield incompetent lawyers from consequences – pressure on law societies to impose competency targets –

– Public alienated by lawyers who follow process blindly and “don’t get it” or unaware of the diverse and changing sources of demand for legal services – pressure on law faculties to innovate in pace with public needs

Ontario Bar Association2

PREMISE OF THIS DEBATE (cont’d)

• Clementi report in spurred by wave of consumer revolt led to removal of self-regulated status of the Law Society of England and Wales

• Canada is unique in having a self-regulated profession, but it can take one more Bernardo Tapes crisis to require politicians to jettison the privileged role of the bar

• Better dialogue between the regulator and the academy will lead to better lawyers and both the profession and the public will reap the rewards through greater relevance and engagement

Ontario Bar Association

What has been called the “Fiercest Debate”– See: Sept/10 issue of CBA National

Ontario Bar Association

Origins of Legal Educationin Ontario (Canada)

• Law Society of Upper Canada – 1797

• First law students – Trade School model – 1801

• William Blake – first law professor at University of King’s College (U of T) – 1843


• 1850’s – LSUC discourages students from “academic” lectures

• Osgoode Hall Law School opens – 1889 • Curriculum controlled by the Law Society• Cecil Wright enrolled at Osgoode Hall and John

Falconbridge appointed “principal” – 1923 • Legal training involved articling with simultaneous

voluntary morning and evening lectures at Osgoode Hall (“Before the students woke up, and after they’ve gone to sleep.”)


Start of the Division

• Falconbridge enlisted the help of the CBA (read OBA) to convince the Law Society to raise admission standards to require a 2-year undergrad pre-requisite for law school admission - 1927 – precedent for OBA engagement in the relationship

• “Taught law is tough law” – Wright’s 1931 lecture against legal formalism

• Law Society abolished 2-year undergrad pre-requisite – 1932

• “The fiercest debate on legal education” – Bora Laskin’s description of power struggle in 1930s-1950s


Falconbridge and Wright

• Admission to law school – 2 years undergrad from senior diploma, or 3 years after junior

• Law school course – 3 years; curriculum to include core courses and 23 subjects to be offered

• Bar Admission course – 1 year

• Articling and bar entrance examinations


1957 “Arrangement”

• Fewer courses required to be offered.

• Mandatory courses specified: Civil Procedure, Constitutional, Contracts, Criminal, Personal Property, Real Property and Torts

• Greater academic freedom, including sequencing of courses, for universities

• The last real reform of legal education in Canada


1969 “Amendment”

• 40 Years without any reform of the Canadian Common Law Degree – due to absence of dialogue between academy and the bar (both sides agree they weren’t talking to each other)

• Other provinces simply follow Ontario• Law Society replaces classroom Bar Ad Course

with self-study – 2006 to present


1969-2009

• Rationale: – Lack of national standard for law schools (Ontario’s

being the only one) – pressure to regulate (Clementi)– New law schools to be accredited– Accreditation of NCA students– National labour mobility commitments and

Competition Bureau study (2007)

• Favours outcome-based competency requirements for Law School Curricula


2009 FLSC Task Force

• Problem solving• Legal Research• Oral and written communications• Ethics and Professionalism• Substantive Legal Knowledge• Foundations of Law• Public Law of Canada• Private Law Principles


Competencies - Categories

• The Council of Canadian Law Deans, and individual law schools asked for delay of adoption of FLSC Report in order to improve the report.

• LSUC Convocation adopted the FLSC Report and stated differences could be ironed out in implementation.

• Implementation Committee has been struck – opportunity for Law Societies to address the academy’s concerns and start new dialogue


Reactions

• Law Societies are:

– Mandated by law to ensure lawyers know how to practice law

– Mandated to enforce discipline when lawyers demonstrate fail to exercise expected level of competence

• Black-Letter Doctrine is traditionally the minimal requirement of knowledge


How “HOW” matters

• Legal academy produces research on legal theory – critical thinking is not enough – creative thinking is required as facts evolve

• Belief that the academy is not qualified to teach “how” – a view held by many academics

• Theory, based on research, is the path to excellence and growth of the “living tree”


Why “WHY” matters

• November, 2008• Supported foundational competencies but also

supported academic freedom• Advised of the need to promote innovation, and the

relevance of Canadian legal history, including the need for awareness of Aboriginal law, civil law and the need for “students to critically analyze the law and the legal system from an equality and equity perspective.”

• The practicing bar, through law associations (i.e. not the regulator), must be used as a resource, especially regarding professionalism


OBA Submission

• “Law School Provides Rapid Socialization into the Standards of Legal Thinking. Law schools are impressive educational institutions. In a relatively short period of time, they are able to impart a distinctive habit of thinking that forms the basis for their students’ development as legal professionals.”

Finding #1, Carnegie Foundation Report, Educating Lawyers


Legal curriculum and professionalism – cause/effect

• We have lawyers who know “how” but don’t understand “why.” There are others who know “why” but have never been shown “how.”

• New law schools adopt “Integrated” or “Client-Focused” Curricula: Eg. CUNY School of Law; CUHK Faculty of Law


“HOW” and “WHY”

• 2015 deadline for law schools and law societies to agree on implementation

• Sense of urgency in need to reform legal education in the Common Law world

• Historical lack of dialogue is a stifler of innovation

• Tuition rate inflation causing consumer reaction among students


Why now?

• Voice of the Legal Profession, in all its diversity

• 1927 precedent – The academy can speak to the OBA as representing the bar outside the Law Society’s regulatory role

• Current implementation talks are a historical opportunity to create a relationship between the academy and the bar – we are the students and the alumni; we are the regulated – it is our public image


WHAT CAN OBA OFFER?

a common law degree for canada oba council debate backgrounder december 3, 2010 1

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