Moving Toward National Bar Admission Standards in Canada

This article originally appeared in The Bar Examiner print edition, September 2014 (Vol. 83, No. 3), pp. 17–27.

By Alan TreleavenCanada’s provincial and territorial Law Societies have successfully established a national system of interprovincial and interterritorial lawyer mobility that, with modest exceptions, has eliminated related regulatory barriers. The Law Societies, consistent with this opening up of lawyer mobility, have embarked on a collective project to develop and implement national bar admission standards, an effort that has shown significant recent progress.

A Brief Overview of Canadian Lawyer Regulation

The challenges in opening up lawyer mobility in Canada have been considerably less daunting than they might be in the United States because of the self-governing mode of lawyer regulation in Canada. Canada’s 14 provincial and territorial Law Societies each have statutory responsibility to regulate lawyers in the public interest. Each Law Society’s authority is found in its applicable provincial or territorial statute. For each province and territory, its Law Society is the sole regulatory body for lawyers, including for bar admission, bar examinations, minimum continuing legal education, discipline, remediation, professional ethics, trust accounting, and mandatory professional liability insurance.1

Unlike in the United States, Canadian courts have only a narrow role in regulating lawyers, most notably by way of judicial review, when a Law Society is alleged to have acted outside of its statutory jurisdiction. The Law Society of British Columbia, for example, is the self-governing authority for BC lawyers, with its own statutory mandate to regulate the legal profession. The Law Society derives its authority from the provincial Legal Profession Act. The governors, known as benchers, are elected by BC lawyers, and the Law Society of BC is fully funded by BC lawyers’ mandatory annual dues, at no cost to the public.

The 14 Law Societies have formed the Federation of Law Societies of Canada (“Federation”), a nonstatutory organization in which all Law Societies are voluntary members. The Federation operates through its national Council, which includes one representative from each Law Society. The Federation is the vehicle through which the Law Societies act together, by consensus.

The Federation has become the focal point for Law Societies’ collective action on a wide range of issues critical to the protection of the public. Recent and current Federation projects include establishing interprovincial and interterritorial lawyer mobility; national bar admission standards; law school accreditation standards; national discipline standards; a national Model Code of Conduct; and CanLII, a national virtual law library.

The Canadian Bar Association is a separate, voluntary organization, much like the American Bar Association but without any regulatory role, including no role in relation to law school accreditation. The Canadian Bar Association has its own provincial and territorial branches. There is no Canadian equivalent to the United States’ National Conference of Bar Examiners or to the state bar associations.

“Law Society” in other countries does not mean the same thing as in Canada. For example, in the United Kingdom, Ireland, Australia, and New Zealand, Law Societies are significantly less powerful as regulators, and all have lawyer advocacy functions. Canadian Law Societies do not have lawyer advocacy functions.

Canadian Bar Admission Requirements

Each Law Society prescribes four fundamental requirements for admission to the bar. Successful admission applicants must
1. hold either
a. an accredited Canadian law degree or,
b. for holders of a foreign law degree, such as a U.S. degree, a Certificate of Qualification issued by the Federation’s National Committee on Accreditation;
2. complete the provincial or territorial Law Society bar admission training program and competency testing, including bar examinations;
3. satisfy the Law Society character and fitness requirements; and
4. complete articling (a law firm clerkship).

Accredited Canadian Law Degree

In 2010, Law Societies, through the Federation, approved national requirements for Canadian law degree accreditation. These new national law degree requirements are expressed in terms of competencies in basic skills, ethical values, and core legal knowledge, all of which students are expected to acquire during law school. The Federation leaves it to each law school to demonstrate that its graduates accomplish the required competencies, although there must be specific instruction in ethics and professionalism in a stand-alone course.

Processes for implementation and monitoring of the new standards will apply for the first time to students graduating from law school in 2015. The Federation has established the Law Degree Approval Committee and has appointed three Federation Council members (who are practicing lawyers), three law school deans, and one Law Society senior staff representative as its members.

Certificate of Qualification

Law Societies, through the Federation, have established the National Committee on Accreditation (NCA) to review the academic training and practice experience of applicants with non-Canadian law degrees and to determine what requirements each applicant must complete to obtain a Certificate of Qualification, which is a certificate of equivalency to a Canadian law degree. Individual Law Societies no longer involve themselves in this process.

A combination of self-study examinations or, less frequently, attendance at a Canadian law school for completion of stipulated courses is generally necessary to fulfill the NCA’s requirements.

The NCA includes two practicing lawyers, two law school deans, one Law Society senior staff member, and one lay member.

Bar Admission Training Program and Competency Testing

Each Law Society has its own requirement for successful completion of a Law Society post–law- school bar admission training program and competency assessments. There are as yet no national bar examinations.

The Law Society of BC program, for example, is the Professional Legal Training Course. Law school graduates attend the Law Society’s mandatory 10-week program, during which they focus on lawyering skills, professional responsibility, practice management, and transactional knowledge in an interactive, small-group setting. The program includes two comprehensive bar examinations and four skills assessments (client interviewing, legal writing, legal drafting, and courtroom advocacy), and students are required to obtain a passing grade in each. The program is funded primarily by a combination of student tuition and BC lawyers’ annual Law Society dues.

Character and Fitness Requirement

To ensure protection of the public, maintenance of high ethical standards, and public confidence in the legal profession, all Law Societies review applications for admission to ensure that applicants are of good character. Eight of the 14 Law Societies (including BC) also review applicants’ medical fitness.

As a first step in the process, Law Societies obtain information about a range of factors to assist in their evaluations. Each Law Society has its own application forms and procedures to gather the information, falling into the following categories:

• educational background and disciplinary history;
• employment background and history of dismissal, suspension, or forced resignation;
• previous criminal convictions (and for some Law Societies, charges), civil claims for fraud, disciplinary history in another jurisdiction or profession, denial or revocation of a license or permit, bankruptcies, civil judgments, or failure to obey a court order; and
• for eight Law Societies, medical fitness, including addiction to or dependency on alcohol or drugs; treatment for a psychiatric condition, including schizophrenia, paranoia, and major mood disorders; or having been the subject of a committal order under relevant mental health legislation.

A law school graduate must provide information about character and fitness to the Law Society when applying to the Law Society for admission. If any issues are raised by the application, the information is reviewed by a Law Society committee responsible for admissions. If the concerns cannot be resolved by an exchange of information about the applicant’s background, or in a summary fashion, it may be necessary to conduct a Law Society investigation into the applicant’s character by a special hearing committee constituted for that purpose. This is a quasi-judicial hearing, providing the applicant with an opportunity to make submissions, present evidence, and respond to Law Society concerns. An applicant is entitled to appeal the special hearing committee’s decision to a Law Society–appointed review board.

Articling

All Law Societies require applicants for bar admission to spend a period of service with a practicing lawyer, generally known as an articling principal, as a component of the mandatory bar admission training requirements. This articling training is intended to provide practical experience in the day-to-day tasks of a lawyer. This involves the acquisition of legal practice skills and learning to apply, in a practical way, what has been learned in law school and the bar admission training program. The articling term ranges between 6 and 12 months, according to the requirements of individual Law Societies.

The articling requirement is rooted in historical methods of training lawyers and is reinforced by the mandate of Law Societies to ensure that lawyers are competent to serve clients when admitted to practice. Although articling is not highly regulated, Law Societies have published articling guidelines, which include both requirements and recommendations for the content of the articling experience. A typical example is the Articling Guidelines of the Law Society of British Columbia, which outline the objectives for articling by describing the obligations of articling principals and students. Articling principals in BC must ensure that students

• are instructed generally in the various aspects of the practice of law and professional conduct;
• are advised of their professional obligations, including as expressed in the Legal Profession Act of the Law Society of British Columbia, the Law Society Rules of British Columbia, and the Code of Professional Conduct for British Columbia;
• are given adequate instruction in professional conduct and responsibility toward the courts, clients, the public, and other members of the profession;
• are instructed that lawyers are required to maintain competence and keep current in all areas of law in which they practice; and
• become familiar with sound general office practice, such as responding promptly to correspondence and telephone calls, maintaining general and trust accounts, and other day-to-day operations of a law office, and are shown how to deal with clients in a competent and courteous manner.

Law Societies typically require the filing of articling education plans and articling checklists or evaluations, including reports when the articling term is complete. Although the purpose of these requirements is to enable the Law Society to oversee the articling experience and ensure competence on admission, there is considerable room for improvement. The most frequently voiced concern about articling is the challenge for Law Societies in ensuring a reasonable quality of experience in all articling placements.

Lawyer Mobility in Canada

Beginning in the 1980s, and perhaps earlier, it became apparent that as client legal matters increasingly expanded across provincial borders, it was becoming cumbersome for clients to retain lawyers in multiple jurisdictions to address component pieces of the same legal matter. In 2002, most Law Societies, through the Federation, negotiated the National Mobility Agreement,2 permitting lawyers to move with ease to other Canadian provinces or work temporarily in other Canadian provinces. In the ensuing years, the National Mobility Agreement was expanded so that today all Law Societies are participants under the National Mobility Agreement 2013.3

There are two types of interjurisdictional lawyer mobility within Canada.

1. Temporary Mobility: A lawyer who is currently licensed by a Law Society, regardless of length of time or practice experience, is permitted to provide legal services temporarily in another province for up to 100 days annually, without obtaining a permit or checking in.4 There is no requirement for further training, articling, or bar examinations, although there can be mobility restrictions based on disciplinary status. Law Societies together maintain the Interjurisdictional Database to enable them to identify conveniently whether a particular lawyer is eligible to practice law in another Canadian province on a temporary basis.
2. Transfer (permanent mobility): Transfer is the approximate equivalent to admission on motion in the United States, although it is administered by the Law Societies, with the courts having no role. A lawyer who is licensed by a Law Society in a province or territory may, by transfer, be admitted to the bar of another province or territory without completing further training, articling, or bar examinations, regardless of length of time or practice experience. There is only a reading requirement, which is based on the bar examination reading materials, and completion of which is verified by lawyer affidavit. The applicant lawyer must also satisfy the Law Society character and fitness requirements.

National Admission Standards Project

In 2009, Canada’s provincial and territorial Law Societies collectively approved, through the Federation, a plan for a project to develop and implement national standards for admission to the legal profession in Canada. Consistency in admission standards and candidate assessment were identified as key goals of the project. The project is intended to build on the national requirements for Canadian law degree accreditation that were approved in 2010.

Identification of the competencies required for new members of the profession to practice competently was a key element of the first phase of the project. The drafting of a common standard for ensuring that applicants meet the requirement to be of good character is another key component of the first phase of the National Admission Standards Project.5

Another important benefit of establishing national bar admission standards could be a reduction of the duplication of effort and expense that exists in the current system in which each Law Society develops and manages its own processes and standards for evaluating applicants.

Motivation for the Project

The most compelling argument for consistent admission standards flows from the mobility of members of the legal profession in Canada. Beginning with the signing of the National Mobility Agreement in 2002, lawyers in Canada have been able to move with relative ease between jurisdictions.

Although one of the underlying premises of the National Mobility Agreement was that the standards for admission in all Canadian jurisdictions were reasonably comparable, the reality is that there are some significant differences in both the standards and processes employed by the different Law Societies. The mobility of lawyers between jurisdictions not only makes such differences difficult to justify—it makes them undesirable.

In deciding to undertake the development of national admission standards, Law Societies collectively recognized that common standards would provide each jurisdiction with the assurance that all lawyers practicing in that jurisdiction have met the same standards of competence regardless of where they were first admitted.

Competency Profile

The first phase of the National Admission Standards Project involved identifying the competencies required for new lawyers to practice competently. To ensure that the Competency Profile was developed in accordance with best practices, the Federation established a National Admission Standards Project Steering Committee from Law Society leaders and senior staff. In undertaking its work, the Steering Committee worked with the Law Societies to ensure that their views and interests were reflected in the standards. The Steering Committee engaged a consultant, Professional Examination Service (PES), a nonprofit organization with extensive experience in credentialing.

PES guided the work on the Competency Profile from the outset of the project. Taking as a starting point the various competency profiles currently in use by the Law Societies, an outline was created that organized the competencies into categories of substantive legal knowledge, skills, and tasks. A Competency Development Task Force, comprising 11 practitioners from every region in Canada in their first 10 years of practice, fleshed out the profile to reflect the tasks actually performed and the knowledge and skills actually required of general practitioners at the time of admission. This draft was then reviewed by 30 practitioners who were identified and recruited with the assistance of the Law Societies.

In accordance with best practices, the revised draft profile was then validated through a survey of entry-level lawyers, the National Entry to Practice Competency Profile Validation Survey. Almost 7,000 lawyers who had been admitted to the bar within the past five years were invited to participate in the survey. Of those invited, 1,187, or 17.2%, did so.6 Respondents were asked to rate each individual competency on two scales: how frequently they performed or used the competency, and how serious the consequences would be if an entry-level practitioner in their area of practice did not possess or was unable to perform the competency. They were also given an opportunity to identify any competencies that they believed were missing from the profile. The data from the survey was used to refine the Competency Profile to ensure that it would accurately reflect the required competencies.7

By adhering to best practices in the development of such profiles, Law Societies can be confident that the Competency Profile reflects the legal knowledge, skills, and tasks that new members of the profession actually require when they begin to practice law.

Current Status of the Competency Profile

The National Entry to Practice Competency Profile for Lawyers and Quebec Notaries was adopted by the Federation Council in September 2012 and is now recognized by all Law Societies as a national standard for admission to the legal profession.8 The next step, now under way, is for Law Societies to develop and approve a plan for implementation.

In approving the Competency Profile, Law Societies also approved a process for examining possible options for implementation, including the critical questions of what Law Society pre-admission teaching and training will be provided and how candidates will be assessed to ensure that they meet the standards.

The National Admission Standards Project Steering Committee is assessing information on possible implementation options and exploring the implications of each option for the Law Societies, with the goal of achieving a high level of consistency in admission standards. The Steering Committee’s eventual recommendations will be submitted to the Law Societies for approval.

Implementation of the Competency Profile

The current second phase of the National Admission Standards Project focuses on how to assess or examine the competencies in the Competency Profile. An assessment model based on demonstrating achievement of defined competence standards should provide tangible evidence of competence.

PES was retained to identify a range of options for assessment of the competencies in the Competency Profile. The PES report is structured around four areas:

• the priority for assessment of each competency,
• the point in the training and development of potential entrants to the profession at which the competencies might be assessed,
• the criteria to guide the selection of assessment options, and
• the potential assessment methods that Law Societies might consider for adoption.

An important factor in selecting an assessment method is determining the relative emphasis to be placed on each competency in an overall assessment scheme. The first step was to use the data from the National Entry to Practice Competency Profile Validation Survey to prioritize the 117 competencies set out in the profile. This analysis drew on the information from the survey about the frequency of use of each competency, as well as the consequences of a lawyer not having the competency.

The prioritization exercise demonstrated that skills are the highest-priority category of competencies to be assessed. While all competencies must be assessed, this suggested that, within the overall assessment regime, the relative focus on skills should be greater than the focus on knowledge and tasks.

The PES report also considers which competencies are most appropriate for assessment by Law Societies and the point in the learning and admissions process at which the assessments might occur: during law school (for competencies that mirror the law school degree national requirements), during the bar admissions process, or during articling.

The report provides a list of criteria to be taken into account when selecting an assessment method. Criteria include the reliability of the assessment method (psychometric consideration) and how much it would cost to develop and deliver (practical consideration).

Finally, the PES report sets out potential assessment methods and related considerations.

• Skills are the highest-priority category of competencies to be assessed.
• Most skills and all knowledge competencies can be effectively assessed through written tests that permit a wide sampling of cognitive abilities (e.g., knowledge, knowledge application, knowledge about how to perform skills).
• Carefully constructed written tests are psychometrically sound and relatively cost-effective.
• Other modes of assessment that more closely approximate practice (e.g., case-based and simulated practice assessments) are more costly and complex to develop and score. They should be reserved for the highest-priority aspects of competence, particularly those aspects that cannot be assessed by other means.
• For higher-priority skills that cannot otherwise be assessed through written tests (e.g., oral communication, advocacy, negotiation), performance-based assessment is preferable.
• The ability to perform job tasks (e.g., draft an opinion letter, interview a client) can be assessed through either performance-based or on-the-job assessment (e.g., during
  articling).
• Assessment on the job may be costly and administratively challenging to implement, and it is possible to devise written assessments that capture some aspects of the task, as well as the knowledge and skill base that underlies successful task performance.
• The information from the prioritization exercise should be used to make data-informed decisions in designing the overall assessment scheme.
• Both practical considerations and those grounded in evaluation theory must be weighed in selecting an appropriate assessment method. The reliability of the assessment instrument (i.e., its accuracy: the extent to which it yields the same result on re-peated trials) and its validity (i.e., its success at measuring what it is intended to measure) are primary considerations for ensuring that accurate decisions are made about who is admitted to practice.

The Importance of Matching Assessment Methods to Competencies

The PES report relies on Miller’s pyramid of competence (“Miller’s Pyramid,” introduced in 1990 by psychologist George Miller) for assessing profes-sional competence. Miller’s Pyramid was developed for clinical practice in medicine and can be applied to all professional competencies. It provides a framework for assessing competence and enables competencies in the Competency Profile to be matched with assessment methods correlated to the various levels in the pyramid: knows, knows how, shows how, and does.

• Knows is at the base of the pyramid. Assessment at the knows level measures whether a candidate possesses specific knowledge (e.g., knowledge of the ethics and principles of client confidentiality applying to legal practice). Assessment methods appropriate to the knows level include
  multiple-choice, true-false, fill-in-the-blank, and short-answer questions.
• The next level up the pyramid is knows how. At the knows how level, candidates are assessed on their ability to apply knowledge in a professionally relevant context (e.g., candidate evaluates a client confidentiality dilemma; given relevant facts and law, candidate knows how to apply legal reasoning to analyze the legal issues). At the knows how level, possible assessment methods include multiple-choice questions (including
  scenario-based questions), short essay questions, and oral examinations.
• Moving up the pyramid, the next tier is the shows how level, which demonstrates the integration of knowledge and skills into performance of the competency in a controlled environment (e.g., candidate demonstrates how to respond to an ethical dilemma in the context of conducting a mock interview of a client). Examples of the types of assessment at the shows how level include simulations and clinical examinations.
• At the top of the pyramid is does. Assessment at the does level captures a candidate’s actual performance in the workplace (e.g., the candidate demonstrates the ability to draft a demand letter on the job). Checklists and rating scales administered by peers or supervisors, direct or video observation, and portfolios of actual work samples are examples of assessments used at the does level.

For each category of competency in the Competency Profile (knowledge, skills, and task abilities), one or more levels of assessment in Miller’s Pyramid might be appropriate. Knowledge can readily be assessed at the knows and knows how levels; skills at the knows how, shows how, and does levels; and tasks at the shows how and does levels. The prioritization exercise ensures that the selection of an assessment mechanism is data-driven and is connected to the knowledge, skill, and task competencies entry-level lawyers must possess to practice
competently.

Although the report proposes that many skills and all knowledge competencies can be assessed through written tests, for the skills that were ranked highest in priority, more authentic assessments requiring demonstration of skills are desirable. This is consistent with the practice in many Law Societies, where skills such as advocacy, negotiation, and interviewing/oral communication are assessed by live performance.

The current project goal is to develop a national consensus on the methods for assessing the competencies in the Competency Profile. Once consensus is reached, it will be necessary to determine how to implement the chosen assessment options. Ongoing communication and collaboration among Law Societies are essential.

Good Character Standard

Although applicants for admission across Canada are required to be of “good character,” there is as yet no agreed-upon statement of exactly what an applicant must demonstrate to meet the requirement. Critics argue that the standard is vague and difficult to define and apply and, as a result, creates uncertainty for applicants. Development of a common good character standard is intended to remedy this by ensuring that the required elements of good character are clearly articulated and defensible and that the process for assessing candidates is consistent and fair.

Under the overall direction of the National Admission Standards Project Steering Committee, a Working Group has been working to articulate the rationale for and the elements of the standard. The Working Group has also been asked to address the issue of fitness. Recognizing the importance of not confusing the two concepts, because issues of medical fitness have nothing to do with an applicant’s character, the Working Group is focusing separately on good character and fitness and has begun with good character. (The Working Group recommended that a separate Fitness Task Force be created to explore fitness issues—both at entry to the profession and throughout a legal professional’s career. A recommendation about fitness to practice may be made in the future; in the meantime, the Law Societies may choose to continue their current practices regarding fitness enquiries.)

The Working Group has been consulting with Law Societies on its draft framework for a good character standard, named the National Suitability to Practice Standard. The use of “suitability” instead of “good character” reflects a concern about the ability to accurately define “character.” The Working Group is recommending that Law Societies move away from the notion of “character,” articulating in its place specific attributes, such as honesty, integrity, and candor, that lawyers must possess and that together speak to the candidate’s suitability to practice law. The draft framework therefore opens with a statement of the principles that are relevant to assessing whether an applicant is suitable for the practice of law, such as protection of the public, the setting of high ethical standards, and public confidence in the profession, as well as public expectation that members of the profession will act with honesty and integrity.

The overarching principles are followed by a discussion of the factors relevant to an assessment of suitability. The draft framework identifies four key factors: respect for the rule of law and the administration of justice, honesty, governability, and financial responsibility. The draft framework concludes with a discussion of the tools that can be used to gather information on suitability, and guidance for investigations and hearings. A proposed standard questionnaire for use as an initial screening tool that includes questions relating to the four categories of conduct, as well as the rationale for the questions and guidance for assessing the answers, is included in the draft framework. (See the Draft for the Draft National Suitability to Practice Standard Questionnaire for Consultation, showing the questions from the four categories of conduct.) The draft framework continues to be the subject of consultation and is therefore a work in progress.

Conclusion

Canadian Law Societies, through the mechanism of the Federation, have placed themselves on a focused track toward establishing comprehensive national standards for bar admission. Driven by the rapid progress in Canada toward bringing down regulatory barriers to the cross-border practice of law, Canada’s National Admission Standards Project seeks to achieve consistency in admission standards and candidate assessment among Canada’s Law Societies. With the identification of the key competencies required for new members of the profession and the drafting of a common standard for ensuring that applicants meet the requirement to be of good character, Canada’s Law Societies will be assured that all lawyers practicing in their jurisdictions have met the same standards of competence and suitability to practice regardless of where they were first admitted.

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