Bonus Episode: Yves Faguy speaks with Cori Ghitter of the Law Society of Alberta and legal market analyst Jordan Furlong about legal education, how it has been affected by the pandemic, and what needs to change for it to address the needs of a modern legal industry.
Bonus Episode presented by CBA National and CBA Futures: After the pandemic: The future of justice, Ep 3:
Yves Faguy speaks with Cori Ghitter of the Law Society of Alberta and legal market analyst Jordan Furlong about legal education, how it has been affected by the pandemic, and what needs to change for it to address the needs of a modern legal industry.
In this third episode, the guests talk about the sudden shift to online legal education, what it means to be a competent lawyer in 2020, and whether articling, as we know it, ought to be abolished.
Jordan Furlong is a legal market analyst, the author of Law Is A Buyer’s Market: Building A Client-First Law Firm For the 21st Century and of the blog Law21.ca.
Cori Ghitter is the Deputy Executive Director and Director Professionalism and Policy at the Law Society of Alberta.
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After the pandemic: Fixing legal education
Yves Faguy: You are listing to the Canadian Bar Association National Magazine. Hello, I’m Yves Faguy, the Editor in Chief of CBA National Magazine. Welcome to After the Pandemic - A conversation about the Future of Justice produced with the support of CBA Futures.
We’ve all heard how COVID-19 has triggered a learning revolution across the world and law schools are no exception; like everyone else, they’ve had to transition to online learning, meanwhile law societies have been forced to cancel licensing exams and introduce changes to articling terms. This has all been done by necessity of course, but will it help drive a long-overdue discussion about what really needs to change in legal education?
For this third episode in our series, we’re here to talk about legal education. How it’s been affected by the pandemic, but more importantly how it needs to evolve to respond meaningfully to the access to justice crisis in Canada and help usher in a more modern legal profession that is better equipped to provide value to clients.
Even better, we’re joined by two great guests today who I guarantee will give us food for thought on what we need to think about when it comes to the future of legal education.
The first is the Deputy Executive Director and Director of Professionalism & Policy at the Law Society of Alberta; but before that, she was the Director of Recruitment and PD at Dentons, so she comes to us with a couple of different perspectives. I’m pleased to have with us today, Cori Ghitter. Welcome to CBA National, Cori.
Cori Ghitter: Thanks Yves, happy to be here.
Yves Faguy: And what can I say about our second guest, well his blog at law21.ca is just required reading for anyone interested in the legal market and where it’s headed. He is also the author of Law Is A Buyer’s Market: Building a Client-first Law Firm for the 21st Century and is one of the most sought out legal analysts in Canada and the U.S. and probably a whole bunch of other places really. Jordan Furlong, welcome back to CBA National.
Jordan Furlong: Thank you, Yves, it is terrific to be here.
Yves Faguy: Just some disclosure, I had the pleasure of having Jordan as my editor in chief back in the day when I first joined CBA National, so I like to think of him as a mentor of sorts. I don’t know if he really wants to take ownership of that [laughter].
Jordan Furlong: I am proud to.
Yves Faguy: But the truth is I still rely on him immensely for his insight into what’s going on in this strangest of industries. We speak a lot regularly about a lot of really interesting things and so it’s great to have him here today, especially with Cori. I want to get a quick sense from you both, we’ve seen a necessary and an abrupt shift to online teaching. I’m wondering if you think just quickly, in the law school context, is that going to change our approach to pedagogy?
Jordan Furlong: My sense, Yves, is that the online teaching that we’ve seen so far, that is to say for the last couple months of the 2019/2020 term, was very much instituted on kind of an emergency basis; we had to do something and we did. And full marks by the way to the law schools and to law students because they, I think, adjusted pretty well to that, much better than I think maybe some courts and law firms did.
So the question then becomes OK, if we had to do this again come the fall and winter – and it is distinctly possible that we will – are we going to continue on in the same vein. Now, I don’t think we can. I don’t think we can continue to just have everybody plug into a ZOOM account and do the class as we would have done before.
We are going to have to start thinking about ways to not so much emergency remote teach, but online learn and there’s a couple of great pieces out there about this right now. Alice Woolley who used to be a prof at the University of Calgary, I’m going to say; and also –
Yves Faguy: – Now a judge at the Court of Appeal.
Cori Ghitter: Court of Queen’s Bench in Alberta, yeah.
Yves Faguy: Court of Queen’s Bench, I apologize.
Cori Ghitter: Court of Queen’s Bench, yeah.
Jordan Furlong: – and Peter Sankoff as well who is a criminal law prof and practitioner. So the problem though is that we haven’t really got our heads wrapped around – and I say this from a legal education point of view – around what we’re going to have to shift in terms of our approach because this isn’t just about technology and this isn’t just about what is the method we’re going to use.
What we have think about is how are students going to learn, what are they going to learn and how do we build something for that. And, you know what, here’s the challenge and it’s a challenge that really speaks to the whole issue facing legal education right now, this system needs a serious rethink and a serious rebuild and it’s something that in the best of times and the best of situations would have been a steady structure build towards something brand new in the course of a few years, now we’ve got to do this in a few months time.
So that’s going to be our challenge. We need to make some decisions that are going to have far-reaching impacts into the future, and we haven’t really necessarily done the homework and laid the groundwork for that yet.
Yves Faguy: Cori, you’ve maybe done a little bit of homework on this given what you do. How do you see this w hole sort of move to the world of online teaching, how do you see it unfold in the coming months, even years?
Cori Ghitter: Well I think we’re in for a ride with it honestly because I think that what we’ve been able to do so far and what we’ve seen so far has just been this effort to replicate what we were already doing in law schools and just transfer it online, and that is clearly not going to be sustainable. And, in fact, in the past we still I think as a profession quite look down on online learning and we haven’t been equipped really to know what the capabilities of online learning are as a profession.
So, as with many things in this very unprecedented times – how many times will we say that today – there is an opportunity here to really try to figure out how to best have students learn online and what opportunities there are there to really change how we view legal education.
And one of the things I think will be interesting about that is, and I think we’ll probably talk about this some more today, but the culture of law school is such a unique thing and it’s very much built on that interpersonal interaction and that imbuing of what it is to be a lawyer and, you know, all those conversations that happen in the hallways at law school; and when we lose that, in some measure, how are we going to replace that.
How are we going to replace that socialization, and should we replace that socialization in the same way? So I think that we’re in for a bit of a ride and there’ll be a lot of experimentation and I sort of welcome that because I think usually we are hesitant to experiment and I think this is going to force legal educators to be a bit more bold in how they deliver their material.
Yves Faguy: I think people worry about that a lot though is replacing that in-person socialization aspect. Jordan, how do we protect that? Should we be protecting that to some extent, and should we fight for that a little bit when we – as we think of introducing more – a bigger role for online learning in teaching these students?
Jordan Furlong: For sure. I mean the thing we have to keep in mind is we’re talking now about coming up for fall 2020 and the winter 2021 session, right, which again we should reasonably expect is going to be held partially or mostly online and, depending on how bad things get out there, this could extend into the next year. But I think we can reasonably suppose that by 2025 the pandemic will have passed, right, you know, or thereabouts hopefully. If it’s still going at that point, we have bigger problems than legal education.
So the situation right now where we can’t be around each other is a temporary one. That’s not to say it’s not important, not to say it shouldn’t be solved but it’s temporary. The thing we need to come out of this with is this idea that in the future legal education should be an integrated mix of both online and in person. I think there is real value to having students come together and work together as a group, but do we need to have that for the entire year for everybody, I don’t know that that’s necessarily the case.
And yes, there are things that you lose, but there are also things that you gain. I was talking with a couple of American law professors about a month or so ago and they were talking about the fact that, you know, we’re doing all these ZOOM classes and so forth, and they made a really interesting observation.
They said – or one of them said, “When I’m doing the ZOOM class the chat is open and the chat is nonstop and it’s all talking about stuff in the class, and they’re discussing issues and they’re talking about the subject of the lecture and so forth”, and she said, “That would never happen in a real class”.
If anything, that’s two things we hate as professors, they’re on their laptops and they’re passing notes, right. And now in this situation, they’re using – if you will – this technology to get an added dimension that wasn’t there before, and I think that’s the kind of thinking we want to encourage. It’s not so much of what are going to lose, we’re going to lose some things for sure, but what can we gain.
Yves Faguy: What do you think that is? Do you think that’s, you know, students feel more empowered to express themselves in a class context, sometimes some of them will feel more empowered to do so online as opposed to speaking up in class? Is it something like that?
Jordan Furlong:Well, yeah, I think partly yeah. I mean, you know, I’ve had students tell me – you know, if anything the gunners are just as bad as they’ve always been, if not worse, always putting a hand up and everything. But I think also to a certain extent your – OK, take your average law professor and take your average law students and ask which of these two people is more comfortable with texting, right, and the student is going to be far more immersed in this culture where you just tap out your thought right in the moment to be part of this stream. So it is – and that’s not the reason why I like it.
It’s not just – as Cori has talked about – the experimentation, which is really important, but it’s also a shift away from this is what the professor likes, this is what the school has always done towards the student, the future lawyer who’s being formed very early on here, this is more about what he or she likes, enjoys, clicks with, engages with and it’s that shift more than any other that is the important one.
If we make that shift successfully, all the other stuff, the technology and the curriculum and everything else, that will flow much more easily from there.
Cori Ghitter: That’s really interesting, Jordan, because if you think of the law professors that, you know, we would have had, they wouldn’t have known how to integrate that at all into their classrooms; and quite to the contrary, as you said, they would say, “Well you’re not paying attention to me if you’re doing this”. And so how to also teach the professors and think about the people who are communicating, how to integrate that is a huge challenge.
Jordan Furlong:Well that’s such a good point, Cori, because again something that’s going to emerge from this, the traditional law school idea is that you have one person who fills two roles, and that person is the professor and this person’s number one job – as any prof will happily tell you – is to publish and to research and to get cited and so forth.
That’s where all their metrics drive them towards and in-between, they also teach classes and what I find generally speaking is that your average professor or your typical professor is really good at one of those things, rarely are they good at both.
What this opens up is the possibility of you know what, maybe you have some people who just do the research and maybe you have some people who just do the teaching and that’s fine, right. And again, it’s just a different way to envision the whole set up.
Yves Faguy: At the end of the day, you know, forming lawyers in law school is fundamentally about developing competent lawyers, right, and so it’s interesting that you say that about professors who are there to pursue their own research goals and that may or may not align with the goal of developing competent lawyers.
But to pursue this discussion a little further, I want to start off by asking you guys how would you define what it is to be a competent lawyer because we need to know that, we need to set those ground rules a little bit if we want to think about changing legal education, do we not? What do you think, Cori?
Cori Ghitter: Well I mean I think, you know, we have our code of conduct that sort of sets out what we define formally as a competent lawyer, which is really some of the traditional things like being able to identify a legal issue, to advocate for your client, all of these things which are important. But increasingly, and I think this is where we need to focus more attention, it also means being able to deliver appropriate customer service.
It means being able to manage your files, being able to manage your business, being able to manage client money, being nimble and tech-savvy, being able to adapt to clients from different backgrounds and, you know, different socioeconomic scales.
And so the set of competencies that we have traditionally asked for have been very focused on those substantive and traditional areas, but from my perspective wearing a law society hat, I think all of these other skills which really are about delivering good client service and helping your client are what we need to be shifting our focus to.
Yves Faguy: Jordan?
Jordan Furlong: Two key points here. The first is when you look at the makeup of the legal profession in Canada today and you go to the Federation of Law Societies of Canada website and the most recent set of statistics they have is from the 2017 year, and that year they recorded roughly 127,000 members of law societies in Canada, the vast majority of whom are going to be lawyers.
Of that group, 66,000 are classified as practising member insured, which means essentially that they’re in the private practice of law and dealing with clients of various kinds. Roughly 32,000 are practising members exempt from insurance, which I take to mean lawyers who work for in-house counsel, law departments, public sector lawyers, perhaps administrative tribunals, this type. They’re providing services of some kind but not in a way that they require insurance coverage. And then about 26,000 are what you call non-practising members, right, of which I am one.
So when you look at it that way, you realize only slightly over half of all lawyers in Canada are in the private practice of law and yet everything about our structure of lawyer – everything, lawyer regulation, lawyer formation, lawyer discipline, lawyer education is all geared around the private practising lawyer. Every code of conduct; take a code of conduct and try to find the section about in-house lawyers, it’s maybe one of 35 different entries.
So one of the things we have to think about for competence is what are the universal elements of competence, and I’m coming in for a landing. For me universal, which like everybody should be able – it doesn’t matter what you are, if you’re a lawyer you’ve got to have this; you have to possess a strong personal character, right. You’ve got to have that honesty, and integrity, and trustworthiness. You have to have really strong ethical knowledge and judgement.
You need to know the rules of professional conduct and recognize them when the need comes up to apply them. You have to be able to advise people clearly and effectively about a law-related matter. That covers a whole bunch of stuff obviously, right, but answering questions of law, carrying out legal research, consulting where necessary outside your areas of expertise blah-blah-blah, right.
And then a fourth one for me would be you’d have to be able to organize and manage all aspects of your work. And the only reason that I choose these four is that 99% of all complaints about lawyers fall into those four categories and to me, that’s universal competence.
Cori Ghitter: I think that we have to be able to articulate a little bit more what we mean in each of those categories, and I’m with Jordan completely though that – and this is something we’re talking a lot about in Alberta right now and that is that proportionate, relevant training of lawyers at different stages of their careers. So those four elements would have a different meaning at different stages and depending on your practice area.
So I do see them as universal, but I do think we have to be able to get a little bit more granular with some of them; particularly, and if we are talking about things that ground complaints and claims, we are talking about customer service. We are talking about that is a fundamental – and those words are so rarely used in talking about competence and in talking about lawyer skills but, you know, client relationship management is fundamental and it is not something that we talk about at law school.
Yves Faguy: The other thing about what’s one – and maybe it’s an oddity, maybe it’s not – about the legal sector is that there are several players who are involved in forming lawyers. You know, we have law schools obviously, law societies play their role and law firms or even legal departments. How would you evaluate, Cori, how they’re addressing meeting those competency requirements?
Cori Ghitter: Well, you know, each player has their role I suppose, but we don’t really measure how they’re doing in any of these areas. We measure students in law school, we measure whether students pass the bar admission. We certainly don’t measure anything to do with articling, there’s very little accountability in that sphere.
You know, I think that in the bar admission sphere, certainly in Alberta we’ve been doing a ton of work in that area and our new program is launching this summer. I think that law societies are trying to address some of these issues but are really struggling in the best way to do it and we’re all experimenting a little bit.
But we certainly understand that there’s a problem, that the bar admission processes that we have are likely not meeting the needs of – not meeting demand, not meeting the needs of the students and need to be evaluated and need to evolve.
And then, you know, I have a lot of thoughts about the role of firms and articling because I think while so many of us, when asked about articling, can regale stories about their terrific principal and all the wonderful opportunities they have and any time you raise the subject people are more than happy to tell you their stories about their articling year, but it’s so terribly inconsistent.
And as we discovered in the survey that we recently did in Alberta, it is very, very spotty and I think law societies in particular, but everyone involved in legal education on the continuum needs to really critically analyze what’s happening in that space and if it is advancing the competencies that we’ve just talked about.
You know, are young lawyers learning those competencies that we’ve identified in their articling term and is it effective. And of course, in some cases it is; but in many cases, it’s just not.
Yves Faguy: I mean I think you’re speaking about the survey conducted by the law societies of Alberta, Manitoba, and Saskatchewan last year, right?
Cori Ghitter: Yes.
Yves Faguy: And according to that survey, I think the headline that came out of it was that almost a third of articling students and new lawyers in those three provinces reported experiencing discrimination and harassment during recruitment or articling.
Cori Ghitter: Yeah.
Yves Faguy: That’s a pretty bad indictment of the articling process, isn’t it, Jordan?
Jordan Furlong: Yeah [laughter].
Cori Ghitter: Terrible …
Jordan Furlong: Well, you know, it’s – yeah, I mean, you know, first of all, this question of is the program doing what it’s supposed to be doing, OK, and as Cori says it’s very difficult to be able to tell if that’s the case outside of anecdata of which we have plenty but it’s not very reliable. But in addition to the question of is it even doing what it’s supposed to do, it’s all the things it’s doing that it’s not supposed to do that are really bad [laughter].
You know, so that alone is there’s no shortage of reason for us to put articling under an extremely harsh light and say you’ve had chance after chance after chance to get this right. How many law society enquiries of all kinds have gone into articling over the years? I mean in my time on the Ontario Bar I think we’ve had at least four, you know, and we keep going back at this again and again and again, how do we fix it, how do we improve it and so forth.
At a certain point, you kind of have to ask yourself maybe we’re trying to fix something that is fundamentally unfixable, maybe we’re trying to repair something that is not worth the repair effort and I think that is going to become a very live question over the course of well quite possibly months, but certainly I think years in the very near future.
Yves Faguy: How is the Law Society of Alberta looking at this issue, Cori?
Cori Ghitter: Well with Jordan’s help – in fact Jordan’s going to be working with us a little bit on some of this – we actually are in a pretty good position in Alberta to be doing this evaluation in the sense that we do have this new bar admission program called PREP, the Practice Readiness Education Program, which is really designed around a lot of the competencies that we’ve been talking about.
It is an online program, so it’s already equipped. There were portions of the PREP program that were slated to be in person but because so much of what they were doing was already online, they were able to transition very quickly so that the entire program is now effectively delivered online.
And because of the nature of this program, which really does focus on training students how to run a file from the very first interview, all the way through to the closing documents and everything in between, including practice management skills, teaching on accounting software, trust, safety – so all of the sort of practical matters that you would have to address in the course of a file – because we have this program in place, we feel like it gives us a little bit more flexibility on what we need out of articling if we think we need to continue with articling.
And of course, like many law societies in this pandemic environment, we have shortened our articling term down to eight months. So I think that we’ll be able to perhaps by survey or other data gathering methods have a look at what the impact of a shortened article has been in combination with this new course and really start to see what changes can be made.
It could be that we need something – articles could be even shorter, or we could look at something more akin to the LPP in Ontario where we look at placement. I think that we are ready to have those conversations in Alberta, we’re excited to have them, and the PREP program is really allowing us to have them in a more accelerated fashion.
Yves Faguy: So Alberta is not alone in having adopted this route, though you have led the way in many ways. So the other provinces are Manitoba, Saskatchewan, and most recently Nova Scotia if I’m correct?
Cori Ghitter: That’s right. So that is the PREP – the CPLED organization and the PREP program is a joint enterprise initiated with Alberta, Manitoba and Saskatchewan, and Nova Scotia, which is terrific, joined us a few months ago as well. So we are all engaged in the PREP program which will help us gather data on the effectiveness of that program. I can’t though speak for the articling piece in the other jurisdictions and, you know, whether they have a similar view to us, although most of them have also shortened their articling terms during the pandemic as well.
Yves Faguy: And so far, from what you’ve seen, is it more effective than the more traditional bar admissions process?
Cori Ghitter: Well we’ve run one pilot in Alberta that just finished about a month ago, and the second pilot is midstream in Manitoba right now. So these are, you know, our pilots to learn how everything plays out for the students and the reviews have been excellent so far. It’s a lot of work. There’s no question it is a rigorous program, but we’ve had excellent feedback from the students so far.
So we have every reason to believe that it’s going to meet our expectations but, of course, the big cohort will start at the end of June and we’ll have anywhere from 600 to 800 students going through it over the next eight or nine months.
Yves Faguy: Jordan, I mean I’m wondering, were you suggesting that, you know, we could see the end of articling be one of the consequences of this pandemic or could the crisis accelerate the removal of articling as part of the formation process?
Jordan Furlong: Yeah. I would say this, Yves, that articling as we knew it coming into this – Let’s just say articling as we knew it at the end of January 2020, I think that’s done. I don’t think that’s going to survive the pandemic and by that, I mean that we are –
Anyhow, it’s a question how long the pandemic is going to go for, right, but the idea that you’re going to spend 10-12 months working in a law firm in this kind of capacity, that aspect alone, right – I mean Saskatchewan, Alberta, Manitoba and probably other provinces too that I’m not – I guess Ontario did something similar – because of necessity and quite rightly in my view, have reduced the amount of time that we require for the articles.
OK, so if you can reduce it from 12 down to 10 or down to eight or down to six – can you do six, can you do four, right? The Law Practice Program in Ontario has a four-month work placement. The Lakehead University integrated a law practice system and your third year has a four-month placement. Four months seems to work just fine.
Now, why is it four months? There might be a good reason, it might be established through scientific study and so forth or it may simply have been, “It seems like enough”, I don’t know, right. But the idea is that if we know for a fact, if we’re content to say after six or eight months for an articling position shortened because of the pandemic, or for four months in the case of the LPP in Lakehead of experience with live clients in an actual work environment with real stakes, right.
I mean one of the things I love about the PREP program, and I love it to pieces, is the simulated law firm system they have there. I’ve had a chance to poke around in it a little bit and it’s just so great, it’s cutting-edge, it’s groundbreaking and it’s exactly the kind of thing we should be doing; my only complaint with it is that we should not be starting this after people leave law school, right. And that’s one of the reasons I really like what Lakehead is doing because they’re saying, you know, we can integrate this throughout the whole process.
But I think this idea that it requires 10 months or 12 months of being in a law firm and working before you can say it, I think that is already been established as not to be actually true; and if that’s not true, what else is not true about articling that we haven’t thought about. You know, and I’ve said before – anybody who’s been reading me for long enough knows I natter about this from time to time – but, you know, articling was never designed to be a competence assurance system.
Articling is a vestigial remainder of the way lawyers used to learn how to become lawyers in this country, and we’ve been asking it to do something it’s not really meant to do for a long time and the idea that you are essentially – you know, you as a profession are outsourcing to the private sector the entire most critical process of ensuring the competence of your new admission to practice is, when you stop and think about it, kind of crazy, right.
And as I’m fond of saying – as I’m overly fond of saying – if we were designing a system tomorrow to do this for the first time, would we come up with the articling year; almost certainly not.
Yves Faguy: And so what kind of skills should we be helping future legal professionals acquire particularly in these early stages of their career because we are talking about bar admissions and articling – we can talk a little bit later about beyond that. But thinking about grads coming out of law school today, what are the skills they’re going to need to acquire, Cori?
Cori Ghitter: Well the survey that we talked about, just starting there, which of course the headline was about discrimination and harassment which was a really tough message to hear; but the other series of questions we asked was about preparedness for practice coming out of article, and we had some pretty interesting feedback on that and some very clearly identified weak areas of training.
And so some of the key weaker areas that the students and young lawyers identified – and keeping in mind we surveyed current articling students, as well as lawyers who were one to five years of call because we really wanted to have those lawyers who were out practising and maybe had more ability to reflect back on their articling experience than just those who were right in it at the time – and the weak areas of training that were consistently identified were adjudication and dispute resolution, conducting matters, practice management, client relationship management.
You know, so the stuff that people knew how to do, that they said were strong were analytical skills, communication skills, substantive legal knowledge, and ethics and professionalism. And that’s a clear – to me a reasonably clear divide of things that are hammered in law school and things that aren’t and, again, I go back to practice management skills, client relationship management and so on and I think that those are areas that we really have to put some focus on.
But I think we also – and Jordan can speak to this much more than I can – we also really have to be a lot more forward-looking and thinking about how we create or encourage creativity and nimbleness and technological knowledge to be able to equip lawyers to actually respond to the needs of their clients because leadership skills, project management skills, all of those things that really are needed by the public and I think the public are looking to lawyers to help them with those things and we do not equip lawyers very effectively with those skills.
Yves Faguy: Jordan?
Jordan Furlong: Number one, I completely agree with Cori and that list of skills is essential. And again, it’s very interesting to see the self-diagnosis that these new lawyers themselves make and that reflects I think reality. I mean the one quibble I would probably have is that I think most lawyers, and most new lawyers in particular, significantly overestimate their communication skills.
Cori Ghitter: Yes, I agree with that [laughter].
Jordan Furlong: You know, so I think that’s something that still needs to be worked on; but frankly that’s, you know, you can go right back in the education system to grade five and start working on that, but that’s a different story.
I think we’re going to have to get ready for the strong possibility that lawyers starting from pretty much right now into the foreseeable future are going to need independent business entrepreneurial type skills because I am concerned as a for instance, that the class of 2020 and possibly 2021 – and not out of the question 2022 – is going to graduate into an absolutely shattered job market where it’s going to be hard enough for them just to get an articling position – And that’s an entire can of worms we can get into some other time.
But when it comes time for them to get a job, there are going to be not many jobs out there available. Law firms across the board are cutting back, they’re reducing their headcount and the last several recessions we have seen, not just in law but in other industries a well, when there are job losses and cutbacks in these recessions, when the recovery comes back there were fewer positions left.
There’s been a lot of automation, there’s been a lot of streamlining and we don’t have as many people working there as we used to. So I am gravely concerned that a lot of people are going to come into law and they’re not going to find the same employment landscape that people who graduated even three to five years earlier had seen.
And so among the things that we need to be able to give them are the skills and the tools and the confidence, to the extent that’s possible – we cannot put old heads on young shoulders – but and the support system in order for them to say, “I got to find a way to provide value to a paying customer in some way, shape or form, whether that is” – it doesn’t matter.
Maybe I’m in a law practice, maybe I’m not, maybe moving into technology, maybe I’m doing data analysis, maybe I’m re-engineering entire processes, it doesn’t matter, but we need to be ready for the fact that a lot of people are going to need to generate livings in the law in a very different way than we used to.
Yves Faguy: I think a lot of people would agree with you there, Jordan, but that also presupposes that firms who are, you know, in the demand side for these lawyers and this kind of talent, that they actually want those skillsets in their recruited talent. It’s not entirely clear to me yet that we can reasonably expect that firms have changed how they view recruitment.
I might be wrong about that, that there might be some outliers and maybe more than just a couple of outliers out there. But where do you see, Cori, how law firms have evolved in the type of skills and type of talent that they’re seeking?
Cori Ghitter: Well I’ve been out of the recruitment business for about five years, but I still feel like [laughter] somewhat connected to it. I think there are some big cultural issues in this area and I’m not sure that firms have changed that much who they’re looking for and what they’re recruiting for. I think that there is still – and I’m talking about big firms as a starting place, you know, the nationals and so on.
It is a competitive environment and those firms are seeking what they perceive to be the top students, and so whether it’s the gold medalists or whatever those traditional sets of criteria have been that demonstrate success at being a law student, I think are still predominately what firms are looking for.
Now that’s not to say that there haven’t been important efforts made on equity and diversity in recruitment, I think there have. I think that the notion of who fits with a firm, that that definition has broadened to some degree. But I think the table-stakes are still academic success and success at other markers in law school and part of the problem is that students who come into the law school may come in for all kinds of reasons why they’re interested.
They’re focused on access to justice or they want to serve an environmental cause or they want to work internationally, they can come in with all kinds of really broad ideas, but the law school culture still, and our legal profession generally still narrows them into that notion that really the best place for me to article and the way I can say I’ve succeeded at this is to find myself at a big firm.
Even if they have no intention of making a career there, it is still a marker of success for a student to articling at one of these places and that whole cultural milieu is very narrowing on the profession and very narrowing on the skillsets that are valued.
Yves Faguy: Jordan, are law schools guilty of promoting that view?
Jordan Furlong: Well the best way I can answer that question, Yves, is to say the last time I went back to my alma mater to give a lecture, I was told that I had to show up at the McCarthy Tétrault Classroom directly across from the [unintelligible 00:36:43] library. So, you know, and that’s fine, right. I’m not casting aspersions, I’m just saying that I did not go to law school in the dark ages, but it is remarkable how this idea – exactly as Cori says – that there is one true path or there’s one superior path and that is to work for the biggest law firms.
But I’ll tell you the one area where I wish law schools would step up and make an improvement here in this side, and that is the whole area of professional identity and this is something which does not get nearly enough attention, I think, in the lawyer formation arena, which is – and professional identity to me has a couple of elements. It’s helping law students especially become aware first of all what is the role of and the relationship of the lawyer to the world, to society in general, what purpose do lawyers serve in our world.
And then secondly, and more importantly, what is the role or relationship of a lawyer to you, right. What do you want to do or to be or to accomplish with this law degree you have begun to undertake because I think the majority, possibly the great majority of people come into law school, they want to do it because they want to make a positive impact of some kind, they want to bring about a change of some sort or they want to provide some help and assistance.
Yes, there is still and always be that cohort of people who come and say, “I’m here to make the big bucks, man”, you know, the bros are coming in, that’s fine. But you know what, if you really want to make the big bucks you can go into hedge funds, so fine.
I think most people in law are into that and they come in with this idea, “I’d like to do this” and they hear nothing about it. They don’t hear about it from their professors, they don’t hear about it from anybody in career services. Career services, not a knock against them at all, their role in law schools is to help the students find work after graduation. That’s what the student wants them there for as well.
But there’s a whole lot of pieces out there. A really good one on Harvard Law School, John Bliss I think talks about it where he says students come in and they’re kind of lost, they’re drifting; they said, “I thought I wanted to come and be an environmental lawyer, I want to help the poor etc., but no one ever talks about it and, you know, all the talk is about getting a job and the big firms and [unintelligible 00:39:00] context articling” and so forth, and so after a while they just kind of drift and, “OK, well sure I guess I’ll just do whatever”.
And the disillusionment sets in really early because they thought there was something more to a legal career than simply getting a job and their first two to three years of the law school experience does nothing to make them believe that’s true. So that is a massive – that’s a bigger cultural shift than anything about going online, anything about teaching practice related stuff.
That is about the school looking at someone, not to say to the student you’re looking for an education, not to say to the student you’re looking for a job, but to say to the student you are here looking for a purpose, you are looking for an identity, you are looking for a role and you believe the law can help you with that and we will help you find out what that is. That alone would be number one transformative for the lawyer formation process, and number two transformative for law school as we know it.
Cori Ghitter: One of the myths that we hear over and over again from students, and I hear it from my friends and colleagues who are lawyers, say, “Well, you know, the best place to article is really a big firm. You can do anything you want after that, that’s the place to start”. So even for those students who have those other objectives, they are trained to believe that still, “That’s where I need to start because that will give me the most options”.
Look I used to sell that Kool-Aid, but I just don’t believe it anymore because I think if you have that sense of self and purpose in your own profession, you know why you went to law school, then start there. Don’t feel like you have to go to a big firm to get this broad set of training, some of which is excellent no doubt, but if there’s no connection to why you went to law school and the work that you ultimately want to do, I don’t think it advances your career or advances your skills at all.
Yves Faguy: I do wonder if, you know, there are levers that the legal – that legal formation or law schools, law societies should be pulling to encourage that kind of purpose. Is there something that they could do?
Cori Ghitter: I think it will take a lot of different levers because it’s a cultural change and culture change is very, very hard and, you know, we always certainly at our law society and I think just generally we laugh a bit about lawyers just being so slow on many changes, but particularly cultural changes. So where are the levers?
Well, I think law school is a starting place for sure and again, echoing Jordan, I don’t blame career services departments in law schools for this because they are doing their job and I also know that they do spend time trying to show students, you know, what the wide range of possible career paths might be, but we have to interrupt somehow at law school and early those messages around the singular path to success.
Jordan Furlong: Well and I’ll tell you a major lever for me, Yves, especially around the access issue starts – it’s in the law school, it’s in the admission process and it’s in the tuition process. Choose pretty much any law school at random and do a socioeconomic analysis of the incoming class, right, and I can almost guarantee you that they are disproportionately from the upper levels of the socioeconomic system in Canada or from wherever else they came from.
One of the reasons I believe why we do such a terrible job as a profession and as a legal system of serving the poor is that most lawyers have never seen a poor person in their lives. They didn’t encounter them growing up, they didn’t deal with them in law school, they don’t know – they’re not from those communities and they don’t know what the world is like there and for a lot of them they’ll never encounter it, right, they’ll slide into a job in a firm and they’ll slide into here.
And so – and it’s not possible frankly for someone who comes from a very low socioeconomic background, in most cases, to go not just to a law school where it’s going to be $25,000, $35,000, $40,000 a year just for tuition – which is over 10 times what I paid 25 years ago to get into law school – but the undergrad degree before that which outside of Quebec you require as well which is another at least $100,000, so the debt load is absolutely staggering.
And I was giving a webinar to NALP the other day, the National Association of Law Placement and one of the last questions they asked me was about tuition and that was a bad place to end the interview with me because I kind of got worked up; and I said the amount of money it costs to get a law degree has everything to do with the universities and the law schools, it has nothing to do with any other actor or player in this market, right.
You know, there is no driving force anywhere within the legal services market that says you have to spend a ton of money to get a law degree, especially when that law degree is, in my opinion, largely indistinguishable from school to school and as I said to a student the other day when I was talking about this, “I guarantee you, your legal education is not 10 times better than mine was 25 years ago”.
So again, back to law schools. I mean when we handicap people coming out of law school financially, in terms of their attitudes, in terms of what they have been exposed to, the complete absence of experience, right – Imagine you finished your medical degree and you’d never dealt with a patient, even in a simulated environment for health care, right, that’s what we’re doing in law.
So again, this is not a question of where can we poke around the edges and maybe put a fresh coat of paint on it, this is it’s time for a radical reconstruction, re-envisioning of this lawyer formation process.
Yves Faguy: But some of that reconstruction also carries on into later stages of the lawyer’s career. I know you’re looking at that, Cori. How should we be thinking about continuing education for more seasoned lawyers, but maybe I’m being a little idealistic there, but is there a way to fold in some of these access to justice imperatives in that process?
Cori Ghitter: Yeah, it’s certainly something we’re looking at in Alberta. Alberta has always been a bit of an outlier on the continuing professional development front. We’ve never had an ‘our space’ system, we have a learning plan or a professional development plan system where lawyers were supposed to self-identify what their plan for the year was, they’re required to include some professionalism and ethics.
Even within that framework in the last several years we’ve made a lot of changes into the suggestion of what we consider to be professional development. So, you know, some jurisdictions would be quite limited in the types of courses that they would accredit for example to count as professional development and so they would have to be substantive or ethics-based, or practice management based.
We’ve really expanded that in Alberta already and include things like wellness, we include volunteering in clinics, we include cultural competence and we really expanded what our definitions have been of what counts towards professional development. But we also recently have realized that that program too requires a re-look, and so we’ve essentially suspended that program in Alberta and are looking at developing an entirely new system of professional development in Alberta.
Well, you know, there was – it’s not that there was anything wrong with it, I think it was very much something that was designed to be tailored to an individual lawyer’s stage of their career in the sense that they made the plan themselves, but it didn’t perhaps have the level of accountability that we felt it should when we are trying to ensure for the public interest that, you know, lawyers remain competent.
We also felt that it perhaps wasn’t as timely and as relevant as it needed to be, and we just really want to do better with what we’re doing. We want to be able to have lawyers look at this as something that is a significant value add. They understand why they’re doing it; they’re not ticking a box just to meet their law society requirements, but they understand its connection to the stage of their practice, their type of practice and so on.
So, you know, we don’t know where that’s going to take us. I think we certainly have an expansive view of what it is to be a competent lawyer at all stages which I think will include certainly cultural competence pieces, certainly areas around poverty law and unrepresented litigants, like understanding that broad base of clients that you may be serving. So I don’t know, we’re excited about it because we think it’s an opportunity.
Again, we’re working with Jordan a bit on this. One of the interesting things, and Jordan and I have talked about this, is that there really aren’t any models out there in the world that are providing particularly good inspiration on trying to do this in a new way, so we do feel like we have a bit of a blank slate which we’re excited about.
And I guess the only thing I can say about access to justice in this scope is that law societies struggle with knowing their role, access is a big broad-based issue throughout our whole justice system and one – but I do believe that one of the key roles in access for law societies is doing what we can to ensure that our lawyers are competent and that are able to deliver good service to a wide variety of clients in a wide variety of environments. So hopefully we can achieve some of those goals as we redevelop the program.
Yves Faguy: Jordan, what should continuing legal education look like in the next 10 years? What should it look like, not what will it look like?
Jordan Furlong: Not will it, exactly that’s going to be bad enough. I think, Yves, that again as Cori says, we have an opportunity to do a serious rethink of what we’re hoping to achieve, and again it comes down to the question of what are we hoping to achieve. What is the purpose, right?
I wrote a post several years ago called the MCLE question no one wants to ask – this was back when the mandatory CLE was coming all of a sudden – and the question that nobody wants to ask about it is does it work, right. Does it actually make for better lawyers and I asked around and nobody – all the CLE people I ran into said, “I’ve never seen a study that has a causative link between mandatory CLE and higher levels of competence or fewer complaints” or what have you. And I said how about regular CLE, “No, never seen a connection between the two”.
OK, so the question we begin to ask ourselves is – and this goes back to Cori’s point about the role of the law society which is fundamentally to advance and protect the public interest, right, in the delivery of the legal services – well what is the interest of the public in terms of the ongoing competence of lawyers that they can do the job that they say they can do, that they advertise that they can do and that they purport to do, right, as well as the fact that they’re of good character and they are ethical and all these sorts of things.
So if that is the core of what you’re trying to achieve through any kind of an ongoing educational or professional development system, right, then I think that’s where you – from my point of view at this stage, that’s where you kind of start of the process of looking.
And again, this is not just about – although it definitely should be – things like, you know, you should have a particular system to let you know when your limitations are coming up because you know why, you might miss one. But it’s also the broader stuff and one of the things we have to get rid of is this concept of soft skills, right. They’re not soft skills, they’re actually really hard because most people aren’t very good at them, right.
And this goes back to client relationships, and it goes back to dealing with people and having a degree of empathy and decency and so forth, but it also encompasses – and I love what the Law Society of Alberta is doing around wellness, right, that’s extremely important. How many – get anybody on from any insurance place and they’ll tell you a significant number of complaints and problems with lawyers are lawyers having a massive personal or mental health or addiction issue and the practice fell apart around them as a result.
Around cultural competence, to be able to interact with someone who is not from your socioeconomic background, who is not from your racialized background, who is not from your own gender. Heaven forbid you have to deal with someone who is, you know, your average dude lawyer of a certain age.
So, you know, that level of skill that we expect people to have in order again to be, to answer the question, would you agree this person should be allowed to become a lawyer or remain a lawyer. So I think start with the purpose that you’re trying to achieve and then say now we can look at methodologies, now we can look at pathways, now we can look at tools to help us get there but so long as we know the purpose of what we’re going to.
Because again, if we’re saying, as we have been saying in law for a long time, CLE for a bankruptcy lawyer is he shows up at 10 hours worth of bankruptcy CLEs put on by the local Bar Association, that’s not good enough, that’s not the point.
Yves Faguy: I’m afraid we’re probably going to have to wrap this up because I don’t want to hold you too long. But I do want to – I’ve been asking this of all our guests. If there was one thing that you would like to see change in this field, in the field of legal education because it is complex and it is again always a multifaceted problem, but if there is one thing that you would like to see change in legal education, what would that be? I’m going to start with you, Cori.
Cori Ghitter: Well you did tell me you were going to ask me this but that doesn’t mean that I’m any better prepared for the answer because I think it’s a pretty tough question [laughter]. And I guess I’m going to go high level on it as opposed to something sort of narrowly focused because – and this is really what we’ve been talking about over the last hour and that is I think we need to genuinely, and I mean genuinely in its purest form, shake our traditional way of looking at legal education.
We need to have the stakeholders come together, identify all the competencies that we’ve been talking about here in a clear way and figure out where students and lawyers can best acquire them, at what stage, in what environment, and so on, because it just goes back to being so tied to the structures that we have and until we can as all stakeholders from law school admissions officers through to firms who are training students, mentors and law societies and beyond, until we can really shake those traditional constructs it’s going to be hard to move the dial in a significant way.
So I’m sorry if that’s too high level, but the fundamental thing is we really need to genuinely shake up and realize that the way we’ve been doing it is not going to see us through.
Yves Faguy: And just very quickly to follow up on that, do you think that is a realistic goal?
Cori Ghitter: As difficult as this pandemic is, it might be a little bit more realistic now than it was six months ago.
Yves Faguy: Jordan, what would you change?
Jordan Furlong: Well, and first of all I have to say I’m so grateful that you often asked Cori first because it gives me a chance to collect my thoughts [laughter]. So I feel bad because Cori has had to go first every time.
But for me two things; and one is, and I mentioned it earlier, the whole idea of professional identity. I think that has to become standard procedure in law schools, there has to be a cultural change at the heart of how law schools view themselves. The other aspect which would be perhaps even just as challenging, we have to integrate exposure to legal work into the legal education process.
Again, this idea of three years of class work and you’re done and then, and only then do you get exposed to the application of the knowledge you have accumulated up to this point, that’s crazy. So I really like what Lakehead University does with their law school, the integrated program where they have multiple clinics, you’re in your third year you’ve got like a four-month placement and this replaces articling, right. Because of this, they don’t have to do articling because it does it as well or frankly, I would say much better.
The whole idea of being able to – like I think every law school should have a clinic and many law schools do but every law school should have multiple clinics, and more to the point it’s not – Taking one of these clinics number one is mandatory, every student has got to do it, number two yes you get course credit, but number three you get competence credit for it as well, right.
The work that you do in one of these clinics is enough for the regulator to say the fact that you have worked there because we have investigated this clinic and we have given it our review and we say yes, the level of instruction and learning and practical hands-on experience and oversight is such that we agree this meets enough standards for us to count as competence, right.
But this whole idea of siloing the education of law from exposure to the application of law absolutely has to stop. It is – again, we would never – if we were starting this from scratch tomorrow, we would never do it that way. Lakehead did not. Lakehead started a brand-new school and said we’re not doing any of that, Ryerson starting a brand-new school says we’re not doing any of that, right. This is how we should be doing things.
And to anticipate your next question, is that realistic? I’ll say this; it will be really, really hard but it’s extremely realistic and I think it’s going to be absolutely essential. It’s one of the great things, you know, and I was saying this to someone the other day, we often talk about we need to do something, right.
I go out in my backyard and I say, you know, I really need to look at that shed, I really need to do some work and prop it up; but if I come out one day after a windstorm and that shed is in pieces on the ground, it’s like I need a new shed, right, and we are very close now to that second definition of need, we need something new.
Yves Faguy: And an optimistic note to end this interview, so thanks. I’ve been talking with Cori Ghitter, the Deputy Executive Director and Director of Professionalism & Policy at the Law Society of Alberta. Cori, I’m sorry for asking you all the questions first.
Cori Ghitter: OK [laughter].
Yves Faguy: And I’ve been talking with Jordan Furlong, Legal Market Analyst, and the author of the law21.ca blog. Thanks both for joining us and to our listeners, please join us for our next episode.
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