Report: Preliminary Report of the Lawyer Education Task ...

Preliminary Report of the Lawyer Education Task Force On Mandatory Continuing Professional Development

______________________________________________________________________________

For: The Benchers

Date: November 15, 2006

Prepared on behalf of:

Lawyer Education Task Force

Policy and Legal Services Department

Michael Lucas

604-443-5777

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Preliminary Report of the Lawyer Education Task Force On Mandatory Continuing Professional Development

Executive Summary

The Lawyer Education Task Force (the "Task Force") has concluded that the time has come for the introduction of mandatory continual professional development in British Columbia that, amongst other things,

? serves as a basis for a comprehensive post-call education programme;

? provides for the development of skills as well as knowledge about developments in the law;

? provides resources that are relevant to lawyers at various stages of their careers;

? is based on criteria (or "credits") that are broadly categorized and will therefore be easily obtainable by lawyers irrespective of their practice location;

? will be able to ensure that subjects that the Law Society considers to be important to a lawyer's professional development are addressed, irrespective of market considerations.

The Task Force is not convinced that simply requiring lawyers to take a certain number of hours of courses offered through current education providers will materially advance the quality of legal services provided. Therefore, the form of a mandatory programme, how that programme is to be developed, and which organization or organizations should offer it still needs some consideration. However, the Task Force has reached a consensus that four options warrant further consideration;

i. A programme requiring a certain number of hours of study, of which a portion requires the study of certain subjects;

ii. A programme of required courses for all lawyers, with the remainder of hours to be made up of courses chosen by lawyers;

iii. A programme of required courses for certain areas of practice;

iv. A programme requiring a certain number of hours of study through approved activities.

If the Benchers agree in principle with the recommendation that a mandatory continuing professional development programme be established, the Task Force asks that the issue be returned to it for the purpose of making recommendations about which option to develop, how a lawyer may obtain credit toward the programme, and over what period of time or stage of one's career the credits need to be obtained as well as programme

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enforcement, the consequences of non-compliance, and the staff required to run the programme.

1. Purpose of this Report

The Lawyer Education Task Force has reached a consensus to recommend to the Benchers that the Law Society develop a programme of mandatory continuing professional development. This Report has been prepared to outline the reasons for the Task Force's recommendation, as well as to outline preferred options for further consideration.

The Task Force asks the Benchers to agree in principle with the recommendations made in this Report, and to return the issue to the Task Force to discuss and develop the options further and return with a recommendation concerning how the programme should be structured.

2. Introduction

In December 2004, the Benchers considered five proposed policy objectives identified by the Task Force. The Benchers resolved that the Task Force examine the proposed objectives and return with recommendations to the Benchers. One of the proposed objectives was "mandatory continuing legal education."

The Task Force has spent a considerable amount of time reviewing mandatory education programmes from other jurisdictions in the United States, Australia and England, as well as discussing whether there is a need for a mandatory programme of education in British Columbia, and if so, what such a programme should look like.

(a) Quality Assurance

Much of the focus of the Law Society has historically been on discipline and setting standards of ethics and professional conduct. These remain of crucial importance to the Law Society, as a regulator, in protecting the public interest. However, more recently the legal profession's regulators in Canada and in other Commonwealth jurisdictions have been placing increased importance on how to establish a standard of quality in how lawyers practise law.

Part of the Law Society's responsibility in protecting the public interest in the administration of justice is to establish standards for the education of lawyers. Section 28 of the Legal Profession Act (found in Part 3 of that Act under the heading "Protection of the Public) allows the Benchers to take any steps they consider advisable to promote and improve the standard of practice of lawyers. The use of this section allows the Benchers to establish "quality assurance" in the way lawyers practise law.

The Law Society currently has programmes targeted at quality assurance, including its Practice Standards Programme and Committee, its Practice Advice Programme and its recently created Trust Assurance Programme. The Small Firm Practice Course will be operational as of January 1, 2007 and will provide valuable practice management

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education and resources. The Law Society is currently engaged, as we understand are other law societies in Canada, in determining what else is necessary in order to ensure a standard of quality in the way lawyers practise law.

Establishing a programme of post call education for all lawyers is part of the overall enhancement of "quality assurance." A programme of mandatory education as a condition of permitting a lawyer to continue to practise law is an important part of that enhancement.

(b) A Note on Terminology

"Mandatory continuing professional development" and "mandatory continuing legal education" are often used interchangeably. They denote a programme of continuing education requirements required of lawyers in order to maintain a licence to practise law. This Report uses the phrase "mandatory continuing professional development." In British Columbia, the phrase "continuing legal education" or "cle" is closely associated with the Continuing Legal Education Society of British Columbia. "Mandatory continuing legal education" may be read by some as a determination by the Task Force that lawyers will be required to take a certain number of courses offered through the Continuing Legal Education Society. While that Society may become an important part of a mandatory continual professional development programme, the Task Force wants readers to understand that "continuing professional development" can be undertaken in a variety of ways.

(c) Definition of the Issue

The issue, simply put, is should the Law Society implement a programme requiring a lawyer to partake in a certain defined amount of professional development activity on a periodic basis as a condition of that lawyer's continued ability to practise law, and if so, what options are available for consideration?

(d) Background

The debate on mandatory continuing professional development British Columbia goes back to the 1970s. In 1975, Minnesota became the first jurisdiction in North America to require lawyers to take education programmes. Not long afterwards, mandatory continuing professional development was debated in British Columbia. It has been the subject of reports and discussion by the Benchers through the late 1970s and early 1980s, and appears to have last come to the Benchers at their February 1985 meeting. Full "mandatory continuing legal education" was not sought at that meeting, rather motions were approved (1) to collect data about lawyers' continuing legal education activity; and (2) to consult the membership about implementing an education "tax" of $75 per year, $25 of which would be a grant to the Continuing Legal Education Society and $50 of which would be a credit for lawyers against courses offered by that Society.

"Mandatory continuing legal education" was also discussed in the Report to the Law Society of British Columbia on Professional Legal Education and Competence prepared by James Taylor in September 1983 (the "Taylor Report"). The Taylor Report did not

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recommend mandatory continuing legal education. It instead recommended steps to encourage voluntary participation.

The topic was also one of the subjects of discussion by the Post Call Curriculum Planning Committee in the early 1990s. There is a useful review of the arguments for and against mandatory continuing legal education in the report, but the focus of the report as it relates to continuing legal education activity is directed at broader issues, including how lawyers might be better motivated to participate in continuing legal education activities. The index of Benchers' Minutes does not refer to any minutes of Bencher debate on mandatory continuing legal education as a result of that Committee's work.

In many ways, the debate on mandatory continuing professional development in British Columbia has remained quite stagnant over the past 25 ? 30 years. Each time it is raised, it seems to get about as far as the stage of suggesting ways to improve access to educational activities, seeking further information from the profession, or trying to find ways to motivate lawyers to take courses. The debate then seems to fade away. Mandatory continuing professional development has never been approved by the Benchers when it reached them for decision, although at least one Bencher, as long ago as 1985, is recorded as having expressed the view that some form of mandatory education was long overdue.

3. The Arguments in Favour of and Against Mandatory Continuing Professional Development

The Task Force reviewed the arguments for and against mandatory continuing professional development, and noted that there does not appear to be any conclusive answer militating in favour of or against such a programme. To a large extent, there seems to be a bit of a "leap of faith" that implementing a regime will improve the competency of lawyers. On the other side, the argument seems to be that if there is no empirical evidence that it improves competence, then why do it? This might be described as an "absence of faith." Objective science plays no part in this debate. Instead, more vague concepts such as how decision makers gauge public interest, member reaction, and public confidence in the profession come into play.

The arguments in favour of and against the programme have to be understood in order to decide what might be done. They are as follows:

(a) In Favour

? Mandatory continuing professional development raises professional competence by exposing lawyers to new developments and renewing basic knowledge and skills. Law is in constant flux ? therefore requiring lawyers to take continuing education is necessary to ensure lawyers keep up with the law and remain competent;

? All lawyers would benefit from exposure to new developments in theory and practice contained in well-designed programmes;

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