Amidst the ongoing discussion about our ballooning annual law school tuition, we overlook another cost incurred by every lawyer in Canada outside Quebec: we all have undergraduate degrees (with the possible exception of those admitted after third year of undergrad). This massively increases the cost of legal education, wastes our time, and does little to ensure better legal practice.
Legal education in Canada and the US is unlike the rest of the Western world in this respect. In all European countries as well as Australia, law is offered as an undergraduate degree. Maybe it takes longer than a normal bachelor’s – in France, for example, a law degree takes five years – but most people still start and finish their legal studies at a much younger age.
A requirement that lawyers attend more years of education is an entry barrier set up to make it difficult to practice law in Canada, just like the certification requirements for foreign practitioners and the limited number of spots available at Canadian law schools.
Some entry barriers are useful to ensure a consistent high quality of legal service. Given the importance of the right to counsel as the facilitator and guarantor of many other constitutional rights, it is vitally important that all lawyers are competent. A constitutionally guaranteed right to counsel would not mean much if anyone could qualify as ‘counsel’. In fact, because most legal communication is privileged, our justice system usually assumes that all lawyers are competent; if you had the opportunity to talk to a lawyer for long enough, your right to counsel has probably been respected.
But entry barriers cause a lot of harm. They increase the cost of legal advice and limit its accessibility. Fewer people are able to practice law, which means that those who do practice are able to charge high rates for their services. In this particular case, the high cost and duration of legal education in Canada probably distorts career choices too: money and security are much more important for people who are older and have a lot of student debt. Just like higher tuition, an undergraduate prerequisite might compel some students to choose more lucrative areas of law rather than more socially important ones.
Entry barriers should only be imposed when they actually improve the consistency or quality of legal advice. And the undergraduate prerequisite in Canada does not do that.
Top high school students can build the skills necessary to perform solid legal analysis in four years of study. The reading and writing skills of good first year undergraduate students are easily sufficient to digest the material in our IL classes. And much of actual legal practice, especially in the early years of a career, involves very, very basic tasks. Think highlighting a book of authorities. Heck, a high school student could do that without any university education at all. The complicated parts, like how to negotiate a transaction, draft a factum or conduct a cross-examination, are built through work experience. Law firms assume you cannot do any of that stuff, even after seven years of university training.
Maturity is certainly important in legal counsel but prolonging the required period of schooling is not the way to attain it. Maturity – at least in the strict sense of being able to respect and understand a client’s interests, show up on time and be thorough in your work – is also gained through work experience rather than school. Law school graduates under the current system are certainly older than they would be if law were an undergrad but I am not sure how much more ‘mature’ we really are (with the exception of those who worked before coming back to school).
The value of having lawyers come from a diversity of different academic backgrounds is massively overstated. Many lawyers practice in areas that have nothing to do with their undergrad. A lot of the time, the entire point of going to law school was to get away from an academic discipline they did not like. For the small number of situations in which there is overlap between undergraduate material and law – like psychology for criminal law or economics for competition law – students could still take the complementary non-law courses. That’s the thing about an undergraduate degree: you can take ‘optional’ courses that are in fields other than your major. This would also benefit those students who are interested in law school but want to find out what it is all about before jumping into a full course-load.
If the concern is about having competent lawyers, then there are better ways to ensure this is the case.
One way is to have an actually difficult bar exam that actually tests your ability to understand the law. With a pass rate of ninety percent, the bar exam in its current form is a relic. If passing the current bar exam is sufficient to demonstrate competence as a lawyer, then why do I have to go through seven years of school before I can write it? What is so wrong with Mike Ross from Suits practicing without a degree? He seems to be doing a pretty good job.
Another way is to continue to have the Law Society of Upper Canada investigate instances of professional negligence or incompetence. I have no idea how aggressively this happens right now. Although it is obviously preferable to take a preventative approach to incompetence than a reactive one, removing those who undermine the integrity of the justice system will ensure that those who remain are capable of upholding it.
Legal education in its current form needs to change. I do not think many would argue about that. It takes too long, costs too much, and does not do a good job at training the types of lawyers Canada needs right now. My educational experience at U of T has been incredibly rewarding, and it gave me skills and friendships that I will continue to cherish for the rest of my life. I just think it is a shame I had to wait until I was 22 to get here.
