How Graduates of Law Schools Located Outside of Canada in the U.S. and U.K. Can Become Lawyers In Ontario – May 2010

“Geography has made us neighbors. History has made us friends. Economics has made us partners, and necessity has made us allies. Those whom God has so joined together, let no man put asunder.”

John F. Kennedy

Canada and the United States share the 49th parallel which is the world’s longest uncontested border. The United States and Canada also share a very common legal system. This commonality has made it possible to attend law school in the United States, enter the lawyer licensing process in Ontario and eventually become a lawyer in Canada.

Foreign Law School Graduates – U.S. and U.K. - Bar Admission In Ontario

It has historically been difficult for graduates of law schools located outside of Canada to become lawyers in Ontario. This short essay is for the purpose of providing clarification (at a specific point in time – remember that this information is changing) on the following questions:

1. What are the requirements to become a lawyer in Ontario?2. How are these requirements limited by the provisions of the Canadian

Charter of Rights and Freedoms and Ontario’s “Fair Access To Regulated Professions Act”?

3. How are the requirements to become a lawyer applied to graduates of both law schools located in Canada and law schools located outside of Canada?

4. What is the National Committee on Accreditation? What role does it play in evaluating graduates of foreign law schools?

5. What, are the NCA requirements for graduates of three year U.S. and U.K. law live classroom (this does not apply to the University of London external program) programs?

6. What are the ways in which these “required competencies” can be demonsrated?

Caveat emptor! Although this information is believed to be accurate (or at least not inaccurate), it is important that you confirm these requirements. This means that you must do your own research and make sure that these requirements are current.

1. What are the requirements to become a lawyer in Ontario?

The requirements to become a lawyer in Ontario are found in the Law Society Act. S. 27(2) of the Law Society Act requires “good character” in order to be

issued a license to practice law. S. 62 of the Act authorizes the Law Society to make by-laws:

“governing the licensing of persons to practise law in Ontario as barristers and solicitors and the licensing of persons to provide legal services in Ontario, including prescribing the qualifications and other requirements for the various classes of licence and governing applications for a licence”

According to the Law Society:

“The focus of the Licensing Process is to ensure that candidates have demonstrated that they possess the required competencies at an entry level in order to provide legal services effectively and in the public interest.”

Notice the focus on “required competencies”.

Therefore, the focus should be to ensure that all those who enter the lawyer licensing process have these “required competencies”.

S. 9 of Law Society By-Law 4, makes it clear that in order to enter the “Lawyer Licensing Process” one must have either of the following two academic qualifications:

i. An LL.B. or J.D. from an accredited law school in Canada; or

ii. A certificate of qualification from the National Committee on Accreditation (“NCA”)

http://www.lsuc.on.ca/regulation/a/by-laws/bylaw4/

It is important to note that having either qualification does NOT allow one to be admitted to the bar. Rather, the academic qualification provides the “required competency” to enter the Lawyer Licensing process. The Lawyer Licensing Process consists of both articling and some required exams. Successful completion of the lawyer licensing process will allow one to be admitted to the bar and become a licensed lawyer.

2. How are these requirements limited by the provisions of the Canada Charter of Rights and Freedoms and Ontario’s “Fair Access To Regulated Professions Act”?

The requirements for bar admission in Ontario are subject to both the Canadian Charter of Rights and Freedoms and Ontario’s Fair Access To Regulated Professions Act.

The purpose of this essay is to provide a short overview of the bar admission process for foreign lawyers. What works? What doesn’t? Suffice it to say that:

- Law Society requirements for bar admission have been struck down because they violated various sections of the Charter of Rights (example citizenship);

- The rules of the NCA may well be challenged as being in violation of the basic provisions of FARPA – the NCA requirements may not meet the requirement of S. 6 of FARPA – that is that they be: “transparent, objective, impartial and fair”.

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_06f31_e.htm#BK7

3. How are the requirements to become a lawyer applied to graduates of both law schools located in Canada and law schools located outside of Canada?

Graduates of Law Schools Located In Canada (but outside Quebec)

It’s simple. They enter the Lawyer Licensing Process. Their law degree is a presumption (without further inquiry) that they have the “required competencies”.

Graduates of Law Schools Outside of Canada

Graduates of law schools outside of Canada are required to get a “certificate of equivalency” from the National Committee on Accreditation (“NCA”). Once that certificate has been issued, graduates of foreign law schools are deemed to have the “required competencies” to enter the lawyer licensing process.

4. What is the National Committee on Accreditation? What role does it play in evaluating graduates of foreign law schools?

The National Committee on Accreditation is a committee that has been created to evaluate the transcripts of foreign lawyers. It has only the authority delegated to it by the Law Society. The National Committee on Accreditation is the Law Society’s “servant” for the purpose of evaluating foreign law school transcripts. That said, it has tremendous power.

http://www.flsc.ca/en/foreignLawyers/foreignLawyers.asp

5. What, are the NCA requirements for graduates of three year U.S. and U.K. law live classroom (this does not apply to the University of London external program) programs?

Whether you live them or hate them, the fact is that the NCA is evaluating transcripts from law schools all around the world. The following discussion is narrow in focus. It applies to graduates of three year live law school programs in the United States and the U.K.

The NCA has identified that the “required competencies” must be demonstrated in ten basic areas. In the words of the NCA:

“NCA recommendations focus on the core common law subjects in which applicants must demonstrate competence, including four Canadian subjects which are mandatory for all applicants:

Principles of Canadian Administrative Law ; Canadian Constitutional Law (with Aboriginal/Charter component); Canadian Criminal Law and Procedure ; Foundations of Canadian Law ; Contracts; Torts; Property; Corporate Law (Business Associations); Evidence; and Professional Responsibility.

http://www.flsc.ca/en/foreignLawyers/faq.asp

Note that of the ten subjects only the first four are Canadian subjects. The last six courses are “common law” subjects that can be studied at any “common law” school. The law of contract is the same whether you take the course in London, England at Queen Mary or in London, Ontario at Western. This means that graduates of U.S. law schools who have studied the last six courses are (subject to acceptable academic performance) presumed to have demonstrated the “competency requirement” for those six courses.

Therefore, in order to demonstrate the competency requirement for the four Canadian courses, U.S. and U.K. law school graduates must (in most cases) pass challenge exams in:

Principles of Canadian Administrative Law ; Canadian Constitutional Law (with Aboriginal/Charter component); Canadian Criminal Law and Procedure ; Foundations of Canadian Law ;

6. What are the ways in which these “required competencies” can be demonstrated?

Once again, the objective is to demonstrate competency in those ten core common law courses. How can these competencies be demonstrated?

1. Competency in the six “non Canadian” common law courses can be demonstrated by taking those courses in the U.S. or U.K. law school. Professional Responsibility” is a required course in ABA approved law schools.

2. Competency in the four “Canadian courses” can be demonstrated by passing those four challenge exams.

Are there other ways that these competencies can be demonstrated?

Yes. Here are some examples:

- Bond University in Australia actually teaches Canadian Courses in Administrative, Constitutional and Criminal Law. These courses are taught by professors who are graduates of Canadian law schools. Hence, Bond graduates, who have taken these courses have demonstrated competency in those three areas. (Note that this principle could be used by other law schools).

http://www.bond.edu.au/law/

- Successful completion of the U.S. “Multi-State Professional Responsibility” exam may be sufficient to meet the competency requirement in professional responsibility (for those who have not taken the course).

http://www.ncbex.org/multistate-tests/mpre/

- The Multistate Bar Examination (MBE) is a six-hour, 200-question multiple-choice examination covering contracts, torts, constitutional law, criminal law and procedure, evidence, and real property.

http://www.ncbex.org/multistate-tests/mbe/

- Lawyer licensing requirements in various jurisdictions may require one to pass exams (or otherwise demonstrate competency) in subjects like: evidence, company law, etc. Demonstration of the basic competency in one context (say the bar course in the U.K. or a state bar exam in the U.S.) may suffice to demonstrate competency to the NCA.

Conclusion

This short analysis is NOT legal advice. It is to provide a framework for graduates of U.S. and U.K. law schools to understand how to become a lawyer in Ontario. It is essential that foreign law school graduates:

1. Keep track of how the laws and NCA requirements may change.2. Contact the NCA and make sure that you understand the requirements.

John Richardson, B.A., LL.B., J.D. ( Of the Bars of Ontario, New York and Massachusetts).

http://www.lawschoolbound.orghttp://www.prep.comhttp://www.prelawforum.com