A. The Federation of Law Societies of Canada
This project builds on recent work to explore the content of Canadian law school curricula, in particular the work of the Federation of Law Societies of Canada. The final report of the Federation’s Task Force on the Canadian Common Law Degree, approved by all law societies in Canada, does not address inclusion of issues relating to violence against women in the curriculum, but some of its more general statements are helpful in thinking about how that might be done. Furthermore, it provides for a mandatory ethics and professionalism element that offers a place where all students can be alerted to the issues raised by violence against women.
The Task Force talks about the need for the focus in law schools to be on learning outcomes and not on prescriptive input requirements, which opens up the opportunity to use different content to achieve already agreed upon and successful learning outcomes. It also points to the importance of individual law schools determining how their graduates accomplish the required competencies, which maintains the academic freedom that is so important and yet allows the integration of new ideas and topics.
Law societies respect the academic freedoms that law schools vigorously defend. There is a strong tradition within the legal education system, particularly in North America, to view law school education as not simply a forum for training individuals to become practitioners of a profession, but also as an intellectual pursuit that positions its graduates to play myriad roles in and make valuable contributions to society.
The new focus on ethics and professionalism fits very well with the concept of teaching about violence against women. Indeed, certain core competencies in this area, which we outline later in this report, could become part of the ethics and professionalism competency requirement. The Federation’s Task Force report states as follows in this regard:
The Task Force is convinced that dedicated instruction on ethics and professionalism, beginning in law school, is essential. It should address both the broad principles of professionalism and the ethical issues with which lawyers must contend throughout their careers, including conflicts of interest, solicitor-client confidentiality and the lawyer’s relationship with the administration of justice…Ethics and professionalism lie at the core of the profession. The profession is both praised for adherence to ethical codes of conduct and vilified for egregious failures…In the Task Force’s view, the earlier in a lawyer’s education that inculcation in ethics and professionalism begins, the better. The Task Force believes that more, not less, should be done in this area and that legal educators and law societies together should be identifying ways to ensure that law students, applicants for admission and lawyers engage in focused and frequent discussion of the issues.
Upon acceptance of the Task Force report by Canadian law societies, the Federation struck a Common Law Degree Implementation Committee. Its Final Report, submitted in August 2011, proposes a path for moving ahead on the Task Force’s recommendations. It suggests that
Ethics and professionalism instruction be interpreted to allow for both single stand-alone courses and demonstrable courses of study that could be delivered within a single course or over multiple years in courses that also address other topics. (Recommendation 3)
By 2015, anyone seeking entry to law society admission programs be required to have taken at least 24 hours of study in the area of ethics and professionalism. (Recommendation 4)
To meet the ethics and professionalism competency requirement, the Implementation Committee suggests that the person be able to demonstrate an awareness and understanding of the ethical dimension of the practice of law in Canada and an ability to identify and address ethical dilemmas in a legal context. This would include having knowledge of the rules of professional conduct, relevant legislation, the nature and scope of a lawyer’s duties, the range of legal responses to unethical conduct and professional incompetence and the different models of the roles of lawyers, the legal professional and the legal system and having the skills to be able to identify and make decisions about ethical problems in practice and to identify and engage in critical thinking about ethical issues in legal practice.
Teaching about violence against women would provide an opportunity to explore these issues in a particular social context. For example, students could learn about the need for specialized interviewing techniques and could begin to acquire the necessary skills to effectively interview clients; they could learn about their legal and ethical responsibilities with respect to knowing when to breach lawyer client privilege to report violence to child protection authorities; they could learn about proper file management in cases involving violence against women and so on. All of these topics, and more, would fit precisely within the new ethics and professionalism competency requirements.
B. The Law Society of Upper Canada
The Law Society of Upper Canada has recently released its Consultation Report on articling for Ontario law students. The Task Force had the mandate to examine the challenges facing the current articling program, the competency-related principles articling is intended to address and the effectiveness of the articling program. The Task Force set out the following five goals of articling:
provide experiential learning
expose students to practice management issues
help students learn ethical and professionalism principles
assist students transition to being practitioners of law, and
introduce students to systemic mentoring.
Central to the considerations of the Task Force is the reality that law students are finding it increasingly difficult to find articling positions (12.1 per cent of 2010-2011 graduating students were unable to find positions compared to 5.8 per cent in 2007-2008).
The Task Force has received submissions from a number of interested parties, including one from the University of Ottawa, Faculty of Law Ad Hoc Working Group on Articling and Access to Justice, which identified its key message as being that “the most significant challenge facing the professional licensing system in Ontario is not a general shortage in articling positions. Rather, there is a specific shortage of access to justice-oriented articling positions and, in turn, a shortage of pathways to careers in access to justice-oriented lawyering.”
While it is too early to know what the final recommendations of the Task Force will be, it is not too early to see that important connections can be established between the development of curricular offerings focused on violence against women and new approaches to articling, including a possible increased use of clinical articling opportunities.
C. The American Experience
Although the Canadian context may be somewhat different, American institutions and law schools have been addressing the issue of including issues of violence against women in law school curricula more systematically than has been the case in most Canadian law schools. This section therefore reviews the American experience which has been helpful in developing a framework for Ontario law schools.
The work of the American Bar Association Commission on Domestic Violence in this area has been particularly helpful. Its two reports on integrating domestic violence into law school curricula document a multi-year, multi-faceted project that brought together law teachers, law students, community activists, survivors of domestic violence and others at five national conferences to discuss how best to bring the topic of domestic violence into law schools.
The American Bar Association Commission on Domestic Violence established a set of core competencies or learning objectives in its project to incorporate domestic violence into law school curricula as follows:
What domestic violence is, including dynamics and breadth
Confronting stereotypes about victims and perpetrators
Understanding survivors of domestic violence
The need for competent legal representation
Each of these areas is spelled out in some detail. For instance, the discussion about why students need to understand what domestic violence is explains how domestic violence affects conduct in different areas of law, sometimes in non-obvious ways. As the American Bar Association’s Commission on Domestic Violence points out,
While conduct such as emotional or financial abuse may not be illegal, it illustrates a perpetrator’s use of power and control. When law students understand the dynamics of domestic violence, they will be able to screen for it and comprehend what is happening in a legal case, as clinical students or as practicing attorneys. In family law cases, for example, one party’s repeated filing for modifications of visitation arrangements may reflect a batterer’s desire to maintain control. Students in poverty law clinics may learn that an abusive partner attempted to have a victim’s public benefits or utility services terminated. Understanding that domestic violence is at the root of a client’s legal problems can help law students advocate for a just result. For instance, if a victim is facing eviction from public housing due to the violence of a former partner or has been terminated from employment for taking time off to go to court, students may be able to make persuasive public policy or legal arguments to obtain relief.
The Carnegie Foundation for the Advancement of Teaching’s study of legal education at 16 American and Canadian law schools set out to “[try] to understand legal education, as well as its implications for the profession it serves, by focusing on the daily practices of teaching and learning through which future legal professionals are formed.” Its report speaks to the importance of law schools teaching not just about “the law” but also about lawyering: “That is the challenge of professional preparation for the law: linking the interests of educators with the needs of practitioners and members of the public the profession is pledged to serve – in other words, participating in civil professionalism.”
The study’s authors determined that education to prepare professionals involves the following six tasks:
developing in students the fundamental knowledge and skill, especially an academic knowledge base and research;
providing students with the capacity to engage in complex practice;
enabling students to learn to make judgments under conditions of uncertainty;
teaching students how to learn from experience;
introducing students to the disciplines of creating and participating in a responsible and effective professional community; and
forming students able