The report brought to Convocation on May 26 by the Competence Task Force noted that it “has been over 20 years since the law society last undertook a comprehensive review of its policies and programs applicable to the competence of lawyers.”
“Much has changed since then including the licensing of paralegals, tremendous change in the use of technology in the practice of law and an ever-increasing number of annual calls to the bar with varied pre-licensing experience,” the report added.
The task force issued a call for comment last year on renewing the LSO’s Continuing Competency Framework. As part of that consultation, “10 focus groups were held — including two with members of the public who had retained the services of a lawyer or paralegal in the last three years,” an LSO news release explained.
Sidney Troister, chair of the task force, told Convocation that “there is a gap that needs to be addressed.”
Sidney Troister, chair of Competence Task Force
Troister said “it is not surprising that the law society data consistently shows that there are foundational practical skills and information that lawyers and paralegals who are starting sole practices struggle the most with” and this “results in the highest amount of law society complaints and malpractice claims.”
“The task force is proposing that lawyers and paralegals starting sole practices take a practice essentials course that covers foundational topics such as law office management, communication skills, accounting and bookkeeping and file management,” he explained.
According to the motion brought by the task force, “all licensees will be required to take the practice essentials course within one year of designating as a sole practitioner for the first time” as of January 2024. The practice essentials course would also “be offered at a modest fee for licensees required to take the course.”
Troister noted that the task force also recommended that the Certified Specialist Program “be wound up, except for the Indigenous legal issues specialization.”
“The task force is of the view that the program does not meet the principles of an effective, ongoing competence regime. Once designated, there’s no continuing obligation to maintain the skills required to remain a certified specialist and there is no ongoing supervision or review of a certified specialist’s qualifications,” he said, noting that the program “has had a very limited uptake with only two per cent of lawyers taking part.”
“At the same time,” he added, “it was recognized that the Indigenous legal issues specialization is unique among the specialty areas in that it certifies both substantive legal specialization and, equally important and not a component of other areas of specialization, it requires intercultural understanding.”
The task force concluded that any recommendation regarding this area of specialization is better made by Equity and Indigenous Affairs Committee.
Regarding the Certified Specialist designation, Troister stressed that the task force was “split on a short runoff period or the right to keep the designation as long as the lawyer remained in practice.”
“The report recommendation reflects the majority view of lifetime specialized designation. It was, however, by no means unanimous,” he added.
Bencher Jonathan Rosenthal brought a motion to amend the Certified Specialist recommendation to read “current certified specialists will continue to be able to use the CS designation until December 31, 2022” as he opposed a “lifetime grandparenting of the designation.”
Jonathan Rosenthal
“I don’t think we can grandparent this program beyond a very short period of time; just enough to allow those who have the designation to change their marketing material and get it off their letterhead. By grandparenting this we are actually increasing the value of a designation that we are saying should not continue for the reasons set out in the report,” he added, explaining that by limiting the designation the few that remain will “have a greater value.”
“If we grandparent, we are stopping younger lawyers from ever getting this designation. Many lawyers do use this designation in a way to differentiate themselves from other lawyers,” Rosenthal said, stressing that “it is not in the public interest to continue it.”
“The public will continue to be misled that those that have the designation are really something special or really something different then from the rest of lawyers. And, as I say, as more lawyers retire, there’s going to be fewer and fewer [designations]. This will interfere with the public protection because if a member of the public has been told that someone has something ‘special,’ in fact something so special that you can no longer get it … they may hire a lawyer who has gotten a special designation. What they don’t know is that lawyer got that designation 20 years ago,” he added.
Clare Sellers seconded the motion and noted that “to allow the continuation of the use of the designation creates a very unlevel playing field.”
Rosenthal’s motion to amend the deadline to eliminate the CS designation carried 34-10 with five abstentions.
In a debate on the remainder of the recommendations, bencher Robert Burd noted that a survey conducted by the Paralegal Standing Committee (PSC) showed that licensees feel “ill prepared for sole practice.”
“And we know through our annual report that the number of paralegals, for example, that end up as sole practitioner positions is high. But more importantly, more tragically, those that left the profession highlighted the inability to become a sole practitioner and that the college programs did not sufficiently prepare them for running their own practice. They were competent in substantive law, but being learned in substantive law doesn’t mean you can run your own practice,” he said in support of the task force’s recommendation for a practice essentials course.
Burd said the course would impact “paralegals leaving the profession.” He noted that PSC is looking at how “to avoid paralegals leaving the profession in such large numbers, especially females under the age of 30.”
The reminder of the recommendations made by the task force passed with a majority vote.
“The law society has a mandate to regulate the competence of lawyers and paralegals,” said treasurer Teresa Donnelly in a statement.
“I’m proud of the extensive work the Competence Task Force has done to review the law society’s existing programs for relevance and effectiveness and to best determine what changes should be made to ensure licensees serve the public well,” she added.
Although Convocation approved of the removal of the Certified Specialist Program, an online petition has started circulating to reinstate the designation.
“While it is understandable that times change and programs and designations must change as well, to strip existing members who have proudly earned and exemplified this designation is an insult to them and the members of the bar that have taken the time to acknowledge and appoint these specialists,” the petition, started by Roy Bernhard, states.
“If the designation is to be sunset, at least allow the honourable members to retain what they have earned,” the petition added.
Convocation also approved amendments to By-Law 3 to execute “procedural reforms respecting motions at Convocation.”
“These improvements are aimed at making use of motions, an important governance tool, more effective. They are also consistent with the treasurer’s and CEO’s focus on improved efficiency, modernization and governance effectiveness,” the Strategic Planning and Advisory Committee summary of the motion explained.
“The amendments provide for the nature of permissible amendments to motions made at Convocation and that a notice of motion state the proposed motion for debate without preamble or recitals,” the summary added.
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