Treasurer responds to licensing process critics

In recent articles in legal publications students have expressed concerns about various aspects of the Law Society of Upper Canada''s new admission process [Law Times: "Students unimpressed with new exams," July 31, 2006; "Organizational problems just the tip of the iceberg," Sept. 11, 2006]. Some of the concerns are quite valid, and will result in reforms.

This is the first year of a new and dramatically different admission system, and growing pains are inevitable. Some background would be useful to assist readers to appreciate the objectives of the law society's new process.

The licensing process implemented this year represents a significant departure from the previous admissions process for the profession in Ontario. The law society deliberated for over two years on the developments it was seeing in the profession and in other regulated professions before determining the model for admission that was approved.

At the heart of this change was the recognition that a regulatory body should not be teaching substantive law – it should be testing, and assuring, competence to practise. Students should learn the letter of the law in law school. The law society, as regulator, is responsible to the public for the assessment of entry-level competence and the maintenance of competence as lawyers develop in their careers.

The law society no longer teaches substantive law. It tests entry-level knowledge, abilities, and judgement. To support the testing it provides materials focusing only on the range of topics necessary for entry-level practice.
Over 2,000 lawyers were involved in the development of the competencies and the assessment processes.

Practising lawyers developed the test questions and the materials. The scope of the questions and the testing method underwent a rigorous validation process. The law society does not expect that this snapshot of competence will or should remain forever the same. The law society provides the most critical information in the most critical areas of lawyer competence and tests those competencies.

The skills and professional responsibility program, the mandatory attendance portion of the licensing process, encompasses training in practice management, skills, and ethics. It is a brief period of instruction and assignments designed to provide students with an introduction to the issues they may face and the skills they may require. It cannot provide all of the answers or skills that a new lawyer may need.

The range of skills of students entering the programs varies widely. Feedback received by the society on the program was also varied. Those who had never before been exposed to these issues or activities were pleased to have this opportunity prior to articling. Some with previous experience in law firms found the program to be less useful or relevant. With over 1,400 candidates in the process, it is impossible to be all things to all students.

Students provided constructive suggestions, and the law society has recently approved a number of changes to the program that directly address not only their concerns but also those of the more than 100 practising lawyers who instructed in the program.

The licensing examinations are another component of the process where students were presented with a significant change. This is unlike any examination process the students may have previously experienced.

They don't have the benefit of speaking with their colleagues who went before them. There's no precedent.
The expectations of students who were anticipating the old admissions regime to be replicated in some way were not met. Students will be spending the rest of their careers seeking out sources of information and applying that information whether they are getting ready for court, drafting a document, or interacting with a client. The skill of taking content and synthesizing it for the situation at hand is an important part of a lawyer's repertoire. The examinations expand upon this and ask candidates to apply their analytical skills.

The law society engages in assessment to determine if these skills, which are critical to future success, have in fact been acquired.
Students were provided with the reference materials eight weeks before the examinations.

The law society posted formal notices to students about content changes and other matters prior to the examinations. For example, a specific notice addressed an incorrect reference in a section of the estates and trusts materials dealing with same-sex marriage and claims upon an estate. The content of the materials was revised at various points in the process on the advice of lawyers practising in the relevant area of law.

The law society received substantial feedback from students about the examination administration process, particularly the security measures. The admissions system is now supported by a secure examination bank, which is a database of potential examination questions testing specific competencies.

It is important that the integrity of the bank be maintained to enable the valid testing of candidates in a reasonable timeframe and at a reasonable cost. Students are not accustomed to such formality in testing situations and this new reality was perceived negatively.

The law society assures students that all of their input has been reviewed and considered and, as a result, changes have been made to aspects of the process. This is the first year of the licensing process and adjustments are inevitable. Despite the concerns expressed, the candidates' success rate to date is almost identical to that of the previous admission process. Students are successfully managing the changes.

Gavin MacKenzie is the treasurer of the Law Society of Upper Canada.

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