Time, seasoning and the future of lawyer licensing

Recently, I had the honour of being invited to take part in and speak at a celebration of the life of Wylie Spicer. Wylie had leukemia, so, in a sense, his death wasn’t unexpected. But it all happened much more quickly than any of us anticipated. I saw him just a few weeks ago and we chatted about the things we usually chatted about — baseball, rock and roll and the state of the legal profession — as if he didn’t have any other care in the world. Then he was gone. Just like that.

One of the other speakers at the celebration told us that grieving is a privilege. I’d never heard that before, but it struck me as very profound. But I would have added that grieving is also a duty. It represents a kind of final, conscious salute to a life well lived. And in my own grief that day, that’s what I promised Wylie I’d do in his memory. I vowed that I would try to draw conclusions from his life so that, however modestly, I might contribute to an enduring legacy for him.

I had the extraordinary fortune of working with Wylie twice. He was the one who first interviewed me for an articling position, and I went on to practise law with him in Halifax for six years. Then, more recently, I was able to hire him myself, to co-teach a new course in maritime law at the University of Calgary. As his wife put it to me after I had broken down in the course of my remarks, my connections with Wylie illustrated the circle of life. He hired me into my first professional job. And I hired him into his last.

Wylie Spicer was an extraordinary person in many respects. He was one of Canada’s most distinguished admiralty lawyers. Admiralty — or maritime law, if one prefers to speak of it without “colonial” overtones — is a practice that is unknown to most Canadian lawyers. But if you come from Atlantic Canada, British Columbia or any of the Great Lakes port areas, you will know without even knowing that the rule of law involves traditions inherited from ancient Rhodes and Islamic custom as much as from the common law of England. So, as a lawyer, he had built-in exoticism.

Moreover, by its very nature, admiralty practice was global before global was sexy. So, admiralty lawyers are not only quirky in their practice, they also embody a degree of cosmopolitanism that sets them apart from the innate parochialism of the mainstream Canadian bar. And both of those things — quirkiness and cosmopolitanism — were things that Wylie Spicer embodied in spades. To a young kid whose roots were in Westmorland County, N.B., he was the epitome of cool. He schooled me in 1960s soul music, for instance, and once actually took me to see Solomon Burke so that I’d properly understand.

But he also taught me about the law. Even though I was principally a labour lawyer, perhaps because I had been in the navy, Wylie used me as a junior in a number of cases. I remember (representing Lloyd’s, as I recall, which seemed about as white shoe a client as I could ever have imagined) overseeing an attempt to refloat a lobster boat that had run aground near Hubbards, N.S., as well as an attempt to salvage a coaster that had gone onto the rocks near Yarmouth, N.S. There was a matter at Ecum Secum, N.S. and another at Ship Harbour, N.L. We spent several years together representing a quixotic dentist who was trying privately to develop a rival to the Bluenose. In the end, we were unsuccessful, but I still remember the exhilaration when he gave me a roving commission to try to find an expert in England who knew about clinker-built wooden cargo ships. There weren’t many left in the late 1980s, but I did eventually find one who had joined a shipbuilding yard shortly after the First World War who had worked on some of the old Royal Navy hulks that still dotted the coasts until the 1940s.

It was Wylie who taught me how to use silence and an arched eyebrow as a tool during cross-examinations — a tool I still sometimes use today, I should add. And the first time I appeared in the Court of Appeal on my own, Wylie gave up an entire day of billings to sit and watch and then spend an evening critiquing me.

It was a pretty heady education, which is why his passing has been such an emotional thing for me. But it has also been a time of reflection, partly because Wylie’s death coincided with the release by the Law Society of Ontario of the report on the future of lawyer licensing. I have written previously in this space on the manifest defects — of which there are many — of the articling system (see here and here).

I remain of the view that it is a system not worthy of sustaining in its current form. Not only does it have little systemic consistency, it distorts the market for legal services that causes real harm to the long-term interests of the rule of law. And it represents a “one-size-fits-all” vision of legal practice that hasn’t existed for half a century or more.

And yet one nagging question still remains. When I learned to be a lawyer, I had the benefit of time. My articling experience had little systematic structure. Like most of us in those days, I did whatever a senior lawyer who happened to walk into the firm’s library beckoned me to do. But as a student, and then as a young lawyer, I was able to learn by carrying bags, sitting in on meetings and watching. Much of that may have been wasted on me. But for my contemporaries and for generations before us, we learned by osmosis. In a very real sense, we were inheritors of a tradition of experiential learning that stretched back to the very origins of the common law. And, with time, we acquired the kind of seasoning that we needed to be able to exercise judgment, which is, at the end of the day, what makes us professionals and not simply legal technicians.

So if we are to abolish articlng — as I believe we should — and if lawyers should be more business-like — as I also believe we should — we need to think of how we will give our successor generations the wherewithal to gradually acquire the wisdom and judgment that come with the grace of time and with the good fortune of carrying bags like we who came before did. Put another way, how do we build time for seasoning into the equation for professional formation? If we merely scrap the system as we know it without thinking this all through, then we will not only be letting down tomorrow’s lawyers but we will be short-changing tomorrow’s clients. That’s not an outcome that any of us wants.