Bencher's Diary: Mandatory CLE: The time has come

If there’s one Law Society of Upper Canada report you’ll want to read in your professional lifetime, it’s the recent proposal to implement a continuing professional development requirement.

You will shortly have the opportunity to provide your input as October’s Convocation approved consultations with lawyers and paralegals on the report’s recommendations.

It may be called a professional development requirement or regime, but call it what you will, it means mandatory continuing legal education and it will be enforced.

The issue has been a contentious one ever since I became a bencher in 1995. First, there were the 1996 report and recommendations on post-call learning for lawyers. Then, in 2001 there was a committee report on implementing the law society’s competence mandate.

The current report, however, covers all the bases. All the arguments against a mandatory regime get thorough consideration. For the most part, it rebuts them given the sea change in the provision of continuing legal education during the last 14 years.

Education programming, with the law society leading the way, has finally become relevant and practical. It’s no longer merely a platform for specialists to showcase their expertise in the expectation of attracting new business.

Program attendees no longer have to be satisfied if they learn only one thing. Today, continuing legal education provides a lot of practical information and precedents.

The law society has also been in the vanguard of making it more accessible. Now, with interactive teleseminars and live webcasts, you don’t have to trek down to Osgoode Hall but can access programs by telephone or computer. You can also download and save materials.

The only weak link in the chain of providing continuing legal education is making it more affordable. Fulfilling the 12-hour annual requirement by attending recognized programs will cost $800 to $1,000, but the report has tried to respond to this issue by, for example, allowing small firms and sole practitioners to engage in interactive continuing legal education that they organize themselves. The proposal would also recognize in-house programs at large firms.

One cannot realistically expect, however, that sole practitioners and small firms will have the time to organize their own seminars, including keeping substantiating records of the topics discussed, time spent, and who attended.

They’ll also be hard-pressed to provide the same quality, in terms of speakers and materials, as programs presented by the law society, the Ontario Bar Association, and other formal providers.

For a number of years, by providing a 50-per-cent discount to those lawyers whose take-home income is below $35,000 per year, the law society has recognized that for many lawyers, often sole or small-firm practitioners, there is an economic barrier to attending continuing legal education.

I therefore suggested at Convocation that the threshold for bursary assistance should increase to $75,000.
The report on the professional development requirement notes that of 7,400 sole-practice law firms in the province, approximately 27 per cent or 2000 of them reported in 2008 that they took no continuing legal education. Undoubtedly, many of those lawyers would attend if there was no economic barrier.

In the past, keeping track of the law society’s minimum expectations for professional development has added to the record-keeping burden for many practitioners. That barrier will come down.

The plan is for practitioners to be able to access the law society web site after engaging in continuing legal education so they can easily update their own attendance record.

I do not understand, however, why the current report recommends continuing professional development audits. Some will take place as part of the practice management review and paralegal practice audit processes. Others won’t entail a visit but will be random requests for proof of compliance.

Audits cost money, something that’s ultimately reflected in the law society membership fees we pay. Furthermore, audits are annoying and time-consuming.

The 2000 report to Convocation on implementing the law society’s competence mandate, in fact, noted that the vast majority of members would never demonstrate performance requiring either a practice review or a competence hearing.

Most of us believe in and attend continuing legal education. Audits should focus on lawyers and paralegals for whom there are concerns over competence, not on the rest of us.

See the Convocation report at
Gary Lloyd Gottlieb, a Toronto sole practitioner, is a Law Society of Upper Canada bencher. His e-mail address is [email protected].

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