As readers may have heard, the National Conference of Bar Examiners (NCBE) recently approved the preliminary recommendations of its Testing Task Force and is committed to developing “the next generation of the bar exam.” What readers may not know, however, is that the NCBE is not alone in its endeavor to consider licensing requirements: regulators elsewhere in the world, including in Canada, are also examining the issue of admissions requirements and how they should evaluate lawyer competence.1 As the NCBE develops its “next generation” bar exam and as U.S. jurisdictions decide whether and how to change their admissions rules, stakeholders may find it thought-provoking to consider the excellent report that Jordan Furlong produced for the lawyer regulatory body in the province of Alberta, Canada. This report is entitled Lawyer Licensing and Competence in Alberta.
Similar to the preliminary recommendations recently adopted by the NCBE, and the reports on which the NCBE’s action was based, the Alberta Lawyer Licensing and Competence report examines what lawyer “competence” means, how it could be fostered and measured, and the proper role of the regulator. Although Lawyer Licensing and Competence was written for Canadian regulators, it provides insights that may prove useful to U.S. lawyer regulation stakeholders2 on issues related to lawyer competence, the role of a regulator, legal education, and the NCBE’s January 2021 decision to develop the next generation of the bar exam.
After a useful Executive Summary and introductory section, Section 2 of Lawyer Licensing and Competence presents six “Principles and Observations” that underlie the report’s recommendations. These six observations are as follows:
- The [regulator] should strive to ensure lawyer “competence” both in the minimum sense of baseline adequacy of knowledge and skills, and in the more aspirational sense of continuous advancement towards true proficiency in many different areas.
- The [regulator] should act both as a “coach” to encourage lawyers’ fulfillment and enhancement of professional norms and as a “cop” to enforce standards and address violations of those standards, but the “coach” should be the default approach.
- The legal education system is outside the scope of this report, but its longstanding and well-documented failure to adequately prepare aspiring lawyers for legal careers should not be allowed to continue and requires urgent [regulator] attention.
- The [regulator’s] six core lawyer competencies, originally formulated eight years ago, would benefit from reconsideration and revision, in particular with the addition of cultural competence and a shift towards more client-centric standards of competence.
- The [regulator] should seriously consider the effects and implications of anti-racism movements and the barriers and biases faced by lawyers who are Black, Indigenous, people of colour, and internationally trained on its licensing and competence systems.
- The [regulator] should recognize the growth of sophisticated competence assurance programs within law firms, public-sector law departments, and corporate law departments, and should strive to dovetail its competence efforts with them.
Although these six observations were written from a Canadian perspective, in my view they transcend borders and are observations that thoughtful U.S. lawyer regulation stakeholders should consider.
Following the “Principles and Observations” section, Section 3 of Lawyer Licensing and Competence addresses what U.S. lawyers might refer to as the lawyer admissions system. The lawyer licensing system in Alberta, Canada (and in other Canadian provinces) differs in some significant respects from lawyer licensing in the United States. As the report explains, there are three components of lawyer licensing in Alberta: 1) the law degree; 2) the bar admission course; and 3) articling requirements, which a U.S. reader might describe as apprenticeship requirements.
Because most of Section 3 addresses perceived weaknesses in the articling system and how Alberta might respond to those weaknesses, a U.S. reader might initially conclude that Section 3 of the Alberta report is not particularly relevant to the U.S. situation because U.S. jurisdictions do not typically have an apprenticeship requirement. The U.S. lawyer admissions community might similarly conclude that Sections 4 and 5 of Lawyer Licensing and Competence are not particularly relevant to them because Section 4 addresses the way in which lawyer competence develops during the first three years of law practice and Section 5 addresses what a U.S. audience might refer to as CLE requirements, rather than admission requirements. Despite these potential reactions, U.S. lawyer admissions stakeholders would do well to consider the insights found in the Lawyer Licensing and Competence report.
One of the major contributions of the Lawyer Licensing and Competence report is the degree to which it urges legal system stakeholders to view lawyer admissions not as an isolated, yes/no decision, but as part of an integrated regulatory system whose goals foster the competent delivery of legal services and the protection of clients. (15-16) Although the regulation of lawyers in the United States can be thought of as a “system” that involves the beginning, middle, and end stages of regulation,3 it sometimes has seemed that U.S. regulators in these differing time periods operate independently from each other, and independently of other stakeholders, with less conversation overlap than might be desirable. For example, “day-job” regulators on admissions issues often work quite independently from the “day-job” conduct and discipline regulators, and both often work independently of efforts within law firms or other legal employment settings. Many admissions-based U.S. conversations happen within the NCBE, whereas end-stage regulation conversations – i.e., lawyer discipline – happen within the National Organization of Bar Counsel or NOBC.
Things do seem to be evolving more holistically in the United States as stakeholders increasingly interact with one another, and regulators adopt approaches that go beyond those they may traditionally have used. NOBC members, who traditionally handled lawyer discipline matters, increasingly are interested in acting proactively to prevent problems. NCBE admissions regulators increasingly use a set of tools that go beyond the traditional “input” requirement of attendance at an ABA- accredited law school and the “output” requirement of successful completion of the bar exam. For example, some of the jurisdictions that use the NCBE’s Uniform Bar Exam (UBE) have pre or post-admission jurisdiction-specific law components, such as an online course on state law or attendance at a required seminar; these admission requirements look more like a “Bridge the Gap” or CLE requirement, rather than a traditional bar exam “output” measure.4 Another illustration of the trend towards a more systemic or holistic approach is the fact that U.S. lawyer regulation stakeholders participate in – and even host – International Conference of Legal Regulators (ICLR) meetings. These meetings bring together a global community of stakeholders, including admissions regulators, discipline regulators, and others. Recent U.S. regulatory initiatives provide another example; many of these initiatives have assembled a wide range of stakeholders and have tried to ensure that “access to legal services,” as well as client protection, are included in regulatory discussions, including admissions-related conversations.
I endorse this trend towards more holistic discussions about lawyer regulation. In my view, it is useful for all stakeholders from all stages of lawyer regulation to exchange information and ideas with one another. Indeed, one of the reasons why I recommend the Lawyer Licensing and Competence report is because it addresses multiple stakeholders and encourages these lawyer regulation stakeholders to focus on a full range of regulatory issues. It urges a perspective in which admissions, new lawyer training, and lifetime learning are viewed as part of an integrated whole related to lawyer competence – i.e., as a system – rather than as individual issues. Thus, although the Lawyer Licensing and Competence report is focused on the lawyer regulation system in Alberta, it provides food for thought for U.S. lawyer regulation stakeholders as well.
- See, e.g., [UK] Legal Services Board, News: Legal Services Board approves significant changes to how solicitors qualify (Oct. 28, 2020); Solicitors Regulation Authority, Developing the SQE; Jonathan Goldsmith, The Trustpilot case is only the beginning, Law Gazette (Feb. 16, 2021) (includes links to reports that address methods to ensure and measure competent legal services).
- Lawyer regulation stakeholders include: 1) those on whose behalf regulations are adopted; 2) traditional U.S. lawyer regulators; 3) groups that represent, and are primarily comprised of, traditional U.S. lawyer regulators; 4) groups that purport to offer expert balanced advice to traditional U.S. lawyer regulators; 5) other U.S. regulators whose actions directly affect lawyer regulation; 6) those who do not have “hard law” regulatory authority over lawyers, but interact with lawyers and may be able to enforce regulatory-like rules or compliance; 7) those who are directly affected by lawyer regulation provisions (but are not the population for whose benefit lawyer regulations are adopted): 8) additional individuals or entities within the United States that may be affected by, or care about, U.S. lawyer regulation issues; 9) foreign governments, intergovernmental organizations, and international dispute resolution bodies that have adopted policies or rules that may directly or indirectly affect U.S. lawyer regulation; and 10) additional individuals or entities outside the United States that may be affected by, or care about, U.S. lawyer regulation. Laurel S. Terry, Lawyer Regulation Stakeholder Networks and the Global Diffusion of Ideas, 33 Geo. J. of Legal Ethics 1069, 1074-1082 (2020).
- Terry, supra note 3, at 1071.
- See Nat’l Conf. of Bar Examiners & ABA Sec. of Legal Education and Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 2021, Chart 11: Additional Pre- or Post-Admission Requirements and Continuing Legal Education.