Legal Embassy By Adegoke Arowosebe
Photo Credit: Credit Wikimedia Commons/ Gordon E. Robertson.
IT WAS Albert Einstein who
BACKGROUND OF THE CASE
THE APPELLANT, Sidney Green, was called to the Manitoba Bar in 1955. In his over six decades of legal practice, there was never a single complaint against him for professional incompetence or negligence. In fact, he had volunteered for the Society in providing legal education to members and he was a member of the Body of Benchers, the Society’s highest decision-making body for eight years, according to Legal Feeds.
IN 2012, the Society made rules requiring all
MANDATORY CPD REQUIREMENTS HAS COME TO STAY
THE CRUX of the appeal to the SCC was whether the Society has the power to make rules requiring a mandatory CPD program for lawyers and impose a suspension as punishment for non-compliance. Using the reasonableness standard of judicial review, the SCC held that the rules mandating the CPD scheme conform to the provision of the Legal Profession Act (“Act”). In reaching this conclusion, it assessed the purpose,
FOR A PROPER understanding of the legislative framework upon which the three levels of court based their decisions that the rules prescribing the CPD scheme and the attendant sanctions intra vires the Society’s power, the relevant provisions of the Act are rephrased thus:
s. 3(1) states that the purpose of the Society is to uphold and protect the interest of the public by ensuring the integrity and competence of lawyers;
s. 3(2) states that the Society shall establish standards for the education, professional
s. 4(5) empowers the Society to make rules to further the objectives of its purpose and duties; and
s. 65 empowers the Society to make rules stipulating the consequences for breach of the Act or its rules.
BASED on the combined reading of these provisions, the SCC held that ss. 3(1) & (2) give the Society a broad public interest mandate and broad regulatory powers to accomplish its mandate. And this mandate, the court said, must be interpreted using a broad and purposive approach. The SCC adds that in order for the Society to implement its objectives of promoting the educational competence of lawyers, it created the CPD rules by virtue of the power conferred on it by s. 4(5). Given that rules require some measures of sanction in order to ensure compliance, the Society exercised the power vested
TAKEAWAYS FOR ALL CANADIAN LAWYERS
THE NEED for a CPD scheme for lawyers cannot be
INDEED, the Canadian legal community has been championing the scheme for a mandatory professional development for lawyers for more than a decade. Mandatory CPD requirements started in Canada in 2006 when the Law Society of Upper Canada (LSUC) made it compulsory for all lawyers in Ontario to complete a certain number of hours of CPD program a year. The LSUC’s rules for CPD program have since undergone several changes and as of today, all Ontario lawyers must complete at least 12 hours of CPD activities per year.
INTERESTINGLY, every law society in Canada has implemented CPD requirements for its lawyers, though with slight variations in each jurisdiction. In Quebec, the Barreau du Québec requires lawyers to complete a CLE program of at least 30 hours every two years. In Saskatchewan, every
THE KEY significance of this seminal decision is that it has finally put a hold on any likely legal challenge of a mandatory CPD scheme and consequent penalties in existence in other Canadian jurisdictions. Admittedly, regulatory changes that affect people’s liberty or their wallet are difficult to implement. However, it must be emphasized that the goal of CPD schemes will be lost if excessive emphases are put on obtaining compliance through a retributive approach. More efforts must be made to encourage lawyers to comply with CPD requirements, voluntarily. I emphasized “voluntary” because a true learning experience comes without an external coercive effort.
QUITE FRANKLY, there is hardly any lawyer who resent CPD activities; although it is well possible that the bulk of their continuous educational activities are on substantive and procedural laws areas that relate to their clients’ deliverables. To encourage lawyers to undertake CPD on professionalism activities, some law societies prescribed that a certain percentage of the minimum CPD hours must be exclusively devoted to learning professional responsibility, ethics or practice management. These law societies also pre-screen the CPD activities to be undertaken by lawyers on professionalism to ensure that the learning activities being signed on to are not only relevant to legal practice but are sterling.
TIPS TO ENCOURAGE VOLUNTARY COMPLIANCE WITH CPD PROGRAMS
THERE are a few measures that can be taken to incentivize lawyers to voluntarily comply with CPD programs for professionalism activities. For starters, CPD training should be made available at low price points and the scope of eligible professionalism activities should be expanded to include diverse topical issues that are relevant to the majority of lawyers. A major put-off about CPD training on professionalism activities is paying for a course that is of little or no relevance to one’s areas of practice. Fledgling lawyers who are in solo practice may not have the budget to take a course just for the sake of fulfilling CPD requirements. According to Legal Feeds, the primary reason cited by Mr. Green for not complying with the Society’s rule was that the mandatory course on how to be persuasive is of no relevance to him. This reinforces the need to make relevancy a cardinal focus of every CPD program.
IN ADDITION to expanding the scope of eligible activities to cover a range of non-legal subjects that are related to professionalism, lawyers should be given the option to apply for approval of eligible CPD activities after the fact. What do these mean? Given the globalization of legal practice, the eligibility of CPD activities should lean more towards topics in emerging technologies and there should be little restrictions on the jurisdiction where the relevant knowledge can be obtained. Therefore, a Toronto lawyer who happens to be vacationing in Sydney, Australia between April 30 and May 2, 2017, should be able to record a conference on clients’ billing method holding in the city during this period and that she will attend, as part of her mandatory activity for professionalism. A Vancouver lawyer who attends a seminar in Mumbai, India on how to develop a software code that can improve the effectiveness of his firm’s conflict check process should be able to count this as an educational activity in law office management. In the same vein, an Ottawa lawyer who by happenstance sits beside Professor Alice Woolley (a leading expert on professional ethics) on a flight from Calgary to Ottawa, and engages her in an hour-long discussion on the reasoning of the SCC in Green’s decision, should be able to record this intellectual conversation as a CPD activity for professionalism. While the aforementioned examples are clearly relevant to professionalism, however, because lawyers will need to get a pre-approval for CPD activities on professionalism, these activities may not count toward their CPD goal.
HOWEVER, despite the inconvenience and the costs of the CPD scheme, truth be told, there is no alternative to continuous education in the bid to achieving professional excellence by lawyers. Thus, lawyers must bear in mind that the overarching objective of a CPD scheme is to ensure that lawyers strive for excellence in the delivery of legal services. Therefore, all hands must be on deck to improve the administration of the CPD program by providing feedback to the law societies when recommendations for improvement are sought. It is only by doing these that we can have recherché, relevant, and robust CPD programs.
FINALLY, irrespective of which side we take in the arguments for or against a mandatory CPD scheme for lawyers, one thing is clear: Mr. Green must be commended for raising vital issues of law that have made an immense contribution to the scope of professional responsibility and discipline of lawyers in Canada. Also to be commended are the learned counsel for the appellant, the respondent, and the intervener, Federation of Law Societies of Canada, for their sound legal submissions. For the learned justices of the SCC, thank you for the expeditious determination of the appeal.
Note: This publication represents the personal views of the author and is provided for general information purposes only; it does not constitute legal advice. Whilst reasonable steps were taken to ensure the accuracy of information contained in this publication, the author is not responsible for any loss or damage that may arise from reliance on information contained in this publication.
Adegoke Arowosebe is a Calgary-based corporate lawyer. He holds an LL.M in Energy, Natural