Mandatory Continuing Professional Development – Time To Pay Attention

by Frits Verhoeven

The Law Society has approved the report of its Task Force on Mandatory Continuing Professional Development, and is committed to implementing a program of mandatory CPD. We should pay careful attention to this initiative. Mandatory CPD could either be a relatively painless requirement, or unduly burdensome, depending on the design of the program.

No Canadian jurisdiction has mandatory CPD. Several American and Australian states do, along with England and Wales. Similar requirements are the norm among other professions. But there is no empirical evidence showing that mandatory CPD enhances lawyer competence. The Task Force’s report concedes that belief in the value of mandatory CPD requires a “leap of faith.” The report recognizes that only a small percentage of lawyers are truly incompetent, and so it may be unfair to force all lawyers to comply with a program designed to remedy the problems of a few. A major reason for implementing the program is to demonstrate to the public that the legal profession takes competence seriously.

The vast range of courses and programs currently available shows that most lawyers already take competence seriously.

While the value of mandatory CPD is at best un-known, the costs are certain. Costs include loss of billable time, the cost of courses, and incidental expenses.

A burdensome program affects access to justice. Time taken away from practice is unavailable to provide legal services to the public, and the costs both in terms of time and expense will have to be passed on to the public in one form or another. The burden will be greater on rural and small firm lawyers, and those with modest incomes.

The Task Force is looking at several options for the design of the program. The program could require study of certain subjects, or taking certain prescribed courses, or simply a certain number of hours of study through approved activities.

The Task Force has accepted the idea that a broad range of activities, not limited to course study, should qualify for credit under the program.

In designing the program, I think the following ought to be borne in mind:

1. The cost and burden to lawyers ought to be the primary consideration. An onerous program is unjustified and unfair. The requirements of the program must be reasonable. Maximum autonomy and flexibility in meeting the requirements should be allowed. The underlying assumption should match reality: the vast majority of B.C. lawyers are already competent and professional.
2. To that end, the program should allow lawyers to meet the requirements by means of the activities and expenditures that competent lawyers already undertake.
3. If the Law Society requires members to take specified courses, or to study particular subjects, resistance from the profession may be expected.
4. The Law Society should not develop and deliver new courses or programs itself. If new courses are required, they should be delivered by others, such as the CLE Society or the CBA. Growth in the size and cost of the Law Society beyond what is strictly required to regulate lawyers is not welcomed by the profession, and diminishes the role of other professional bodies and groups.

I welcome your comments.

This article was published in the April 2007 issue of BarTalk. © 2007 The Canadian Bar Association. All rights reserved.