The International Spot – A Global View on International Developments

By:

Alan Treleaven Law Society of British Columbia

Una Marie Doyle The College of Law

Presented at: ACLEA 48th Mid‐Year Meeting January 28 ‐ 31, 2012 New Orleans, LA

Alan Treleaven Law Society of British Columbia Vancouver, British Columbia

Alan Treleaven is Director of Education and Practice for the Law Society of British Columbia, the self‐ regulating body governing lawyers and the practice of law in the province of British Columbia, Canada. Alan’s primary Law Society responsibilities include oversight of Mandatory Continuing Professional Development Program, Bar Admission Training Course, Articling, Licensing, including transfer and law mobility, Practice and Ethical Advice service, Practice Standards inspection and remediation program, Law Society educational programs, Law Society sole and small firm programs and resources, Federation of Law Societies of Canada liaison, including national admission and lawyer mobility projects.

In past professional lives Alan has been Director of Education for the Law Society of Upper Canada, a lecturer at Osgoode Hall Law School (York University), and a civil litigator in Vancouver, BC. Alan is a member of the BC and Ontario bars, a Past‐President of ACLEA, and a graduate of the University of Toronto (J.D) and McGill University (LL.M). Alan is currently a member of the CBA International Development Committee, and has designed and taught in legal education programs in Vietnam, Cambodia, China and Kenya.

Una Marie Doyle The College of Law Sydney, NSW Australia

UNA DOYLE is the Director of Continuing Professional Education Legal Education in The College of Law, a non‐profit organization providing vocational post graduate education to legal practitioners throughout Australia. A key part of her role involves analyzing legal developments and assessing current trends in the law, and developing appropriate legal programs in response to changing trends and practitioner needs. Una has Co‐Chaired ACLEA’s International Committee from 2007‐2009 and participated in the “Critical Issues for the Legal Profession” Summit. She has also been President of the Continuing Legal Education Association of Australasia 2005‐2007, and served as member of its Executive for five terms (CLEAA being the Asia‐Pacific equivalent of ACLEA).

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CANADIAN LAWYERS AND LEGAL EDUCATION: NATIONAL STANDARDS DEVELOPMENTS

A paper written for the ACLEA Conference, January 31, 2012, by

Alan Treleaven, Director of Education and Practice Law Society of British Columbia, Vancouver, BC, Canada

Overview of Canadian Lawyer Regulation

Canada’s ten provincial and three territorial law societies each have statutory responsibility to regulate the legal profession in the public interest. In each province and territory, the law society is the sole regulatory body for the legal profession, including for MCLE, admissions, bar examinations, discipline, remediation, professional ethics, trust accounting and mandatory professional liability insurance.1 Each law society’s authority is found in the applicable provincial or territorial statute (Legal Profession Act in BC, Legal Profession Act in Alberta).

The Courts have very little role in regulating lawyers, except by way of judicial review, which would be on the basis that a law society is alleged to have acted beyond its statutory jurisdiction.

The Law Society of British Columbia, for example, is the self-governing body for BC lawyers, with a mandate to regulate the legal profession in the public interest. The Law Society of BC 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 funded by BC lawyers’ annual dues, at no cost to the public.

The law societies have formed the Federation of Law Societies of Canada (“Federation”), a voluntary non-statutory organization in which all law societies are members. The Federation is governed by a national Council that includes one representative from each law society. The Federation is the vehicle through which the law societies act together.

The Federation has become the national voice of the law societies on a wide range of issues critical to the protection of the public and the rule of law. Recent and current Federation projects include establishing national lawyer mobility, law school accreditation, national admission

1 The province of Quebec’s legal system is grounded in the French civil law system, and there are some differences between the system for self-governance of Quebec lawyers and lawyers elsewhere in Canada. Quebec is a participant in the national programs and initiatives described in this paper, although there are some differences unique to Quebec.

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standards, national discipline standards, a national Model Code of Ethics, and CanLII, the national virtual law library.

The Canadian Bar Association is a voluntary organization, much like the ABA, but without a regulatory role, including in relation to law school accreditation. It has provincial and territorial branches. There is no exact Canadian equivalent to the state bar associations, and no Canadian equivalent to USA’s National Conference of Bar Examiners.

“Law Society” in other countries does not mean exactly the same thing as in Canada. For example, in the UK, Scotland, Ireland, Australia and New Zealand, law societies are significantly less powerful as regulators, and also have lawyer representational functions.

MCLE Standards – A National Trend for CLE

In Canada, the term “MCPD,” or mandatory continuing professional development, is used, rather than “MCLE.” Forms of learning typically accredited include live courses, webinars, interactive online programs, writing for publication, teaching, mentoring, and study groups.

Individual law societies are solely responsible for MCPD regulation, including setting the rules. In 2009, BC was the first Canadian law society to implement MCPD. Today, eight or perhaps nine of the ten provincial law societies and all three territorial law societies have implemented or are likely in the near future to adopt substantially similar MCPD requirements. As in the USA, the system is credit hours based, although the accreditation process is considerably more flexible and less bureaucratic than is typical in most American states.

The law societies are also, for the most part, the major CLE providers in their respective jurisdictions. In BC and Alberta, the CLE Society and the Legal Education Society are, respectively, the major providers. The Canadian Bar Association is the major national provider.

The new Federation President has stated that key Federation goals for 2012 should include development and adoption of national standards for MCPD. This goal is consistent with the rapid move in Canada, on a number of fronts, toward national standards in governance of the legal profession, as summarized below.

National Lawyer Mobility

In the 1980’s and 90’s, 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. 3

In 2003 most law societies, through the Federation, implemented the National Mobility Agreement (“NMA”) permitting lawyers to transfer with ease to other Canadian jurisdictions or work temporarily in other Canadian jurisdictions. In the ensuing eight years, the NMA has been expanded so that today all law societies are participants. 2

There are two types of inter-jurisdictional mobility in Canada:

• transfer (permanent mobility): 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 bar examinations; • temporary mobility: a lawyer who is licensed by a law society in a province or territory is permitted to provide legal services temporarily in another province or territory for up to 100 days annually, without obtaining a permit or checking in.

The Federation has established the National Lawyer Database to enable law societies to identify conveniently whether a particular lawyer is eligible to practise in a jurisdiction on a temporary basis.

National Law Degree Accreditation

Law societies, through the Federation, recently approved a new set of national requirements for law degree accreditation.

The new national law degree requirements are expressed in terms of competence in basic skills, awareness of appropriate ethical values, and core legal knowledge that law students are expected to acquire during law school. The Federation leaves it to the law schools to determine and demonstrate how graduates accomplish the required competencies, although there must be specific instruction and testing in ethics and professionalism in a stand-alone course.

Processes for implementation and monitoring of the new standards are almost complete, including the establishment of a Federation law degree accreditation entity.

National Standards on Admission to Practice Project

Law societies, through the Federation, are developing national bar admission standards and related procedures.

2 Quebec became a participant in national mobility in 2010, on a reciprocal basis with all the other provinces and the territories. Quebec mobility is somewhat more restrictive because of Quebec’s civil law system. In the three territories there are some restrictions to temporary mobility.

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In Canada there are four basic requirements for admission to the bar:

• an accredited Canadian law degree or its international equivalent, • satisfying the character requirements, • completion of a provincial or territorial bar admission training program, including testing, and • completion of a law firm clerkship, known as articling.

One of the underlying premises of national mobility has been that the provincial and territorial standards for admission are reasonably comparable. Although the existence of common standards should finally eliminate concerns about the qualifications of transferring and visiting lawyers, the current reality is that significant differences exist in the admission standards and processes employed by each law society. It has been universally recognized that these differences can no longer be justified.

Therefore, in 2009 the Federation, on behalf of all law societies, initiated a project to develop national standards for admission to the legal profession. The goal of this project has been to develop consistent national standards for admission, and to provide all law societies with objective mechanisms to ensure that every applicant admitted to the bar meets the national standards.

Moreover, the establishment of national admission standards should eliminate the considerable duplication of effort and expense that is inevitable in the current system, in which each law society develops and manages its own processes and standards to evaluate applicants.

Drafting a national profile of the required competencies, defining and articulating the elements of good character, and developing national mechanisms to assess whether applicants possess the necessary competencies and good character are the central tasks of the project.

A national Steering Committee is responsible for the project, including for working with law societies to ensure their views and interests are reflected in the standards. The Steering Committee will also work directly with law societies to assist with implementation of the standards.

The project work is in three streams:

• drafting and validating the national competencies profile, • drafting the national good character standards, and • developing national implementation and assessment mechanisms.

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The process of drafting and validating national competency and character standards, which will be followed by development of national implementation and assessment mechanisms, is well under way. The new national standards and proposed assessment mechanisms will be submitted to the Federation and to all law societies for national adoption and implementation.

Foreign Legal Consultants

Most law societies, recognizing a growing demand for Canadians to have direct access to the services of lawyers licensed in other countries, have implemented rules to license Foreign Legal Consultants (“FLC”) through issuing permits, to ensure that qualified lawyers from other countries are authorized to provide legal services relating to their countries, and to regulate the unauthorized practice of law.

By way of example, in BC a FLC is defined in the Law Society Rules as "a person qualified to practise law in a country other than Canada or in an internal jurisdiction of that country, who gives legal advice in British Columbia respecting the laws of that country or of the internal jurisdiction in which that person is qualified."

To obtain a FLC permit in BC, the applicant must submit:

• Certificates of Character, • documentary evidence of being a member of the legal profession in one or more foreign jurisdictions, and entitled to practise there, and • documentary evidence of professional liability insurance or a bond, indemnity or other security that is comparable in form and amount to that required of all BC lawyers.

A FLC may provide legal services respecting the law of the jurisdiction in which the FLC is licensed to practise law, as well as respecting trans-jurisdictional or international legal transactions. A FLC must not provide advice respecting the law of any Canadian jurisdiction, and is not permitted to appear as counsel on behalf of a client before any Canadian court or administrative tribunal.

A FLC who performs any activity beyond the scope of the permit is engaged in the unauthorized practice of law, and is subject to prosecution or injunction proceedings by the Law Society of BC.

The importance of licensing FLCs throughout Canada is underscored by recent negotiations under the World Trade Organization’s General Agreement on Trade in Services (GATS), and by the impact of the 6

North American Free Trade Agreement (NAFTA) on cross border commerce.

Some law societies have not yet fully implemented FLC rules. The Federation is coordinating a process so that all law societies will soon have substantially similar rules enabling lawyers from other countries to practise law in Canada as FLCs.

In Conclusion

The rapid progress in Canada toward implementing national standards for the legal profession has been driven by law societies recognizing the emerging imperatives of inter-jurisdictional practice. The most compelling factor has been national mobility, with international mobility emerging as a strengthening force.

Canadian law societies, through the mechanism of the Federation, have placed themselves on a thoughtful, deliberative fast-track toward establishing comprehensive national standards for regulating Canadian lawyers.