A competence-based lawyer licensing system in British Columbia

You might have been wondering what I’ve been up to lately, or why I’ve written so little here in the past several months. Okay, you weren’t wondering about that at all, but the answer is this: I’ve been immersed in a major project for a Canadian legal regulator that I’ve had to keep under wraps for some time, but that I can finally talk about more openly.

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:

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.

That resolution was contained in this note to the law society directors (“Benchers”) from its Lawyer Development Task Force. It was based upon my 80-page, 27,000-word report to the Task Force titled, “A Competence-Based System For Lawyer Licensing in British Columbia”, which is now publicly available on the law society’s website. I invite you to click through and read it, because I think it really matters for the future of lawyer licensing — and not just in British Columbia.

Why do I think this report is so important? Because it should change the process by which people in B.C. become lawyers — 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’ admission systems, improve the quality of service clients receive, and go a long way towards defeating “impostor syndrome” among new lawyers.

That’s a tall order and a significant claim, and I’ll go into some detail to explain it. But a few preliminary points first:

• The law society resolved to develop a competence-based lawyer licensing system in B.C., but it will be several years before the first cohort of differently licensed lawyers enters the profession. Designing a competence framework for lawyers is a major undertaking, all the more challenging given the rapid shifts in our profession and in our society. Building a licensing process around that framework is another huge job. This will take a while.
• My report made just one formal recommendation (above), which the directors accepted. But the report went on to point out several clear implications of introducing a competence-based system, and it’s these implications that I think will bring about extraordinary change in the licensing process. The directors decided to leave these implications to the Task Force and the framework developers to sort out, which is proper. But I’ll explain them in some detail.
• Competence-based licensing is not entirely novel. The Solicitors’ Regulation Authority of England & Wales, a direct inspiration for my work in B.C., has a competence-based licensing system. The Law Society of New Brunswick recently introduced a competency profile with its new bar admission program. CPLED PREP, the bar admission program in four Canadian provinces, uses a limited competency framework.
• My recommended approach in B.C. goes further, however. Among other things, it does not assume that a law school degree is an acceptable proxy for entry-level competence in legal knowledge, and it emphasizes socially aware professional responsibility as a core competence for new calls. No US state uses anything like this (though IAALS’s Building a Better Bar project ably showed how), but I think this report has wide-reaching and immediate application to the controversies tearing apart the American bar admission process.

So, all of that said, here’s 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 “competence framework for lawyer licensure” would look like.

1. Expired Credentials. 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’s just the degree and passing a bar exam.) All these requirements, to a greater or lesser degree, are basically credentials — 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 for the competence to practise law, without directly assessing the candidate’s overall fitness to practise.

2. Unidentified Competence. 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’t. Apart from the notable exceptions above, no regulator can identify the precise knowledge, skills, and personal attributes someone must demonstrably possess — and to what level of proficiency — in order to become a lawyer. We don’t 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.

3. Professional Consequences. 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’s a lot of them) will receive sub-competent service and might never know it. But the damage extends further, to the profession itself.

4. Legitimacy Consequences. It’s 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, “How do you know this lawyer is qualified to serve me?”, 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’s claim to merit self-governance if the regulator can’t answer the simplest question about the standards of quality control of new lawyers — 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.

5. Competence Frameworks. 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 “wish list” of ideal lawyer attributes, recognizing that “Day One” competence, while needing to meet minimum standards, ought not to be any higher than that.

6. Licensure Validity. 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 — a person who might wish to be a lawyer cannot do so because they couldn’t discover the competencies, couldn’t afford to obtain them, or couldn’t equitably show the regulator that they possess them. The competence framework must be constructed with these three requirements in mind.

7. Competence “Starter Kit”. 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 “starter kit” 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:

1. Knowledge of the law

1. Administrative law and procedure
2. Business and corporate law and procedure
3. Civil litigation, procedure, and remedies
4. Contract law and drafting
5. Constitutional law
6. Criminal law, procedure, and sentencing
7. Evidence
8. Family law and procedure
9. Legislative, regulatory, and judicial systems
10. Property and tenancy law and procedure
11. Torts
12. Wills, estates, and trust law and procedure

2. Understanding of a lawyer’s professional responsibilities

1. Client confidentiality
2. Client trust accounts
3. Conflicts of interest
4. Fiduciary duties
5. Select other aspects of the Code of Professional Conduct

3. The skills of a lawyer

1. Gather relevant facts through interviews and research
2. Carry out legal research
3. Conduct due diligence
4. Draft essential legal documents
5. Solve problems using legal knowledge and analysis
6. Help negotiate solutions and resolve disputes
7. Advocate for a client’s position
8. Provide legal advice to clients
9. Use law practice technology
10. Fulfill the basic business and professional requirements of a private law practice

4. The skills of a professional

1. Establish, maintain, and conclude a client relationship
2. Establish and maintain respectful and collaborative relationships with colleagues and others
3. Communicate accurately and concisely, verbally and in writing, to different audiences
4. Understand and use information management systems effectively
5. Understand and use financial management systems effectively
6. Manage projects and responsibilities to ensure they are completed efficiently, on time, and to an appropriate professional standard
7. Organize one’s time and activities to ensure the prompt and successful fulfilment of one’s obligations

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’s what the regulator has now resolved to do.

But … 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’t just recommend a fundamental change to professional licensure and walk away. I went on at some length to advise the law society: “Hey, 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.”

In a follow-up post next week, I’ll describe the other changes to British Columbia’s licensing system that I can foresee arising from this development, changes that will be noticed and maybe copied by other jurisdictions — including one that likely will make some law schools very unhappy. And in a post subsequent to that, I’ll 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’s a lot to unpack, and I’m looking forward to the opportunity to show you what’s here.

Although this is not a simple undertaking, I’m optimistic that the example of the SRA’s 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.

I’ll give the last word to an excerpt from the report’s introduction:

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 — faster, more disruptive, and more transformational.

We cannot continue to form lawyers — to educate, train, and license them — 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.