Canadian lawyers need to replace resilience with real change

My first column for Canadian Lawyer, published nine years ago, was entitled, “What we know about legal education.” In it, I set out six propositions that I considered to be unassailable truths about how the Canadian legal profession – including Canadian law schools – was not meeting the needs of our evolving world:        

• We know most law students progressively disengage from their studies as time goes on.
• We know articling in its current form is not sustainable.
• We know articling is an inconsistent model for training lawyers.
• We know that the one-size-fits-all bar admission scheme does not reflect modern practice's complexities.
• We know the practice of law is changing.
• We know more about how adults learn than we knew in the last quarter of the 19th century when the conventional law school model was born.

Over the following years, I chronicled in these columns some of the efforts that one Canadian law school made to respond to these issues. While most weren’t entirely within the legal academy's control, we’ve followed an ambitious agenda for change and innovation at the University of Calgary.

Critics – and I have had more than a few over the years – said that we were trying to do too much too quickly. But I have always had a predisposition to action. Acta, non verba is one of my mottoes. And together, we’ve accomplished a lot. We’ve established the International Energy Lawyers Program in partnership with the University of Houston, the Certification de common law en Francais in partnership with the University of Ottawa, a joint JD-Master of Public Policy degree program in partnership with UCalgary’s School of Public Policy, the very first Indo-Canadian dual degree program in partnership with the O P Jindal Global University in Delhi, the Foreign Trained Lawyers Program, dedicated Indigenous and Black student recruitment programs, the Innovation Internship Program, the Business Venture Clinic, and so many other things. We’ve done all this while increasing our average LSAT score by thirteen percentile points. Oh – we’ve also done it while continuing to have among the lowest JD tuitions in the country.

Overall, it’s not a bad haul for a small law school in the middle of the Prairies. But now that I am close to the end of my time as a law dean – June 30th is the day I turn into a pumpkin – I find myself in a reflective mood. As much as we’ve accomplished, I've learned an important lesson: were I starting again, I might have altered my approach to law deaning.

Our profession is extraordinarily resilient. That’s the kind way to put it. To express it maybe a little less kindly, we are dogged in our resistance to change – to real change. Partly, this is because of how we are structured. The partnership model, which is still the norm for Canadian law firms, focuses the mind on the short term. Moreover, our work is carried out against the spectre of a gigantic bad cop called the law society. Now, I know law society leadership in several jurisdictions in this country, and almost to a person, they are proponents of measured evolution. Nevertheless, their place in the scheme of things makes them agents of reflexive fear. I remember a long-time life bencher in Ontario once telling me that even after twenty years as a bencher, seeing an envelope in the mail from the Law Society of Ontario made him sweat. So, it’s understandable why no one wants to attract too much attention for pushing envelopes.

Moreover, beyond our business model, broader cultural forces are at play. For all our charm as Canadians, we have the unfortunate trait of insularity. In that respect, we are more like the Americans than we might care to admit. Because of that, most Canadian lawyers still don’t think we have much to learn from other professions or the experiences of lawyers in different countries. Our debate about the future of lawyer regulation in Canada unfolded such that regulatory and structural reforms like those that recently occurred in England and Australia would be unlikely here. 

To be fair, changes are happening in how our profession is governed, but the pace is so glacial that it is almost unnoticeable. And that’s not good. Winston Churchill once famously said, "Nothing in life is so exhilarating as to be shot at without result.” His point was that consciousness of threat can be a spur to positive action. That’s what we need in our profession, now more than ever.

Whether or not we want to acknowledge it, tectonic changes are upon us. That is not because clever people who write for Canadian Lawyer are saying so. Rather, it’s because the substratum upon which the need for legal services is built is changing – before our very eyes if we care to open them. Technology and demography are combining in an irresistible way to drive economic and social change.  And those are the things that drive the need for the kinds of services that lawyers provide.

Globalization is an overused and now politically charged expression, but it is real. As I write, the hot-button political issues in Canada are food prices, housing, and immigration – all domestic but driven by global forces. For any legal services provider not to have “global mindedness” at the forefront of how they think about their and our collective professional future is almost tantamount to negligence. 

The point is that a magic opportunity lies before us as a profession. To borrow a line from Bono, we have what the world needs. Canada is blessed with the resources to feed and power the world. We are also the place where the globe’s cultures intersect.

In my career, I’ve lived and worked in the legal systems of the United States, the United Kingdom, Australia, Singapore and India. I can say with first-hand experience that their lawyers are no more intelligent than ours. But they are more entrepreneurial.

More than anything today, this is our challenge as Canadian lawyers: can we harness our national and natural blessings and combine them with a spirit of adventurous entrepreneurialism to give our profession a place on the world’s stage? If so, our future is golden. If not, well, at least our decline in relevance will be genteel and gradual.