Canadian Lawyer

November 2020

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Page 41 of 43

40 OPINION BACK PAGE Let's abolish mandatory CPD There is no data that would indicate that these mandatory education efforts have decreased the incidence of negligence or professional misconduct IN FEBRUARY 2020, the Law Society of Alberta suspended mandatory continuing professional development requirements for lawyers. The LSA's president distributed a letter to members indicating the intention to take a new, yet undefined approach to competence in the legal profession. What was not clearly stated in it is the dirty little secret of CPD: It does nothing to contribute to competence. Professional regulators jumped into mandating continuing education for their members in the late 1990s. The intention was clear: to mandate continuing learning in a changing professional environment. But the first problem arose immediately: the dearth of providers in the CPD space. Enter the legal regulators themselves. For a nominal fee, they would gladly fill the void they created and provide the mandatory CPD to their members. For a fee, of course. By mandating a new burdensome regulatory requirement, the legal regulators created an artificial marketplace in CPD and then filled it as the single largest provider of the services. In effect, the CPD requirement became a tax on regulators' members: an additional expense and time commitment required to enter and stay in the professions, with a preponderance of the fees going back to the legal regulator. Even now, with a multitude of providers of CPD, the Law Society of Ontario still brings in more than $8 million annually in fees from CPD programs alone. That's $8 million forcibly taken from lawyers and paralegals (and millions more taken by other CPD providers) as a condition of practising law, which is then passed on to the public in the form of higher legal fees and taxes. At one of my first meetings as a bencher at the LSO, the subject of the CPD regulatory requirement came up. I asked three basic questions: 1) Do we have data on how the require- ment has affected competence? 2) Is there evidence that the requirement has reduced negligence claims? 3) Does the LSO audit whether lawyers and paralegals participate in the CPD programs they report? The answer to each question was "no." In other words, the requirement exists with no regard to its efficacy. At the Sept. 24 Convocation of the LSO, Daniel Pinnington, president and CEO of LAWPRO, Ontario's legal indemnity insurer, confirmed that LAWPRO had studied the matter on three occasions and found no impact on negligence claims since the imple- mentation of mandatory CPD. That's right; there is no data supporting the idea that compelling lawyers and parale- gals to undertake hours of courses and semi- nars contributes in any way to competence. There is no data that would indicate these mandatory education efforts have decreased the incidence of negligence or professional misconduct. There is no data as to whether the public's perception of the competence of lawyers and paralegals is in any way affected. The LSO knows that many lawyers and paralegals don't participate in the CPD that they have self-reported to the portal and that those lawyers and paralegals most in need of CPD are not likely the ones participating in or honestly fulfilling the requirement. There is nothing in the LSO's CPD requirement to ensure that lawyers and paralegals participate in CPD that is relevant to their practice area, scope or stage of their career. It's a one-size-fits-all approach in an era of specialization. In 2016, the LSO expanded the CPD requirement to mandate three hours of diversity, equity and inclusivity training (e.g., anti-racism, white privilege, cultural compe- tency, unconscious bias). The LSO embraced the ideology of critical race theory and used the CPD requirement as an opportunity to force all lawyers and paralegals to undertake attitude training in the fashionable political stances preferred by the regulator. Whether you agree with critical race theory and the prevailing politics of the LSO or not, the foray into the realm of ideolog- ical re-education should give everyone, most especially the public, cause for concern. With the politicization of an already dubious regulatory exercise, the CPD require- ment has descended from farce to dangerous overreach. Teresa Donnelly, treasurer of the LSO, has expressed a special interest in examining competence in the professions. To that end, she has struck a Competence Task Force. Let us hope that the LSO will be bold and evidence based like Alberta in abolishing the mandatory CPD requirement in favour of more effective ways to increase competence in the public interest. Jared Brown is a litigator in Toronto, lead counsel at Brown Litigation and a bencher of the Law Society of Ontario. He advises organizations on risk and mission-critical litigation.

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