When a licensing authority decides to implement a new standardized lawyer licensure exam, what factors help shape that decision?
In last month’s blog post, we examined the introduction of the new Solicitors Qualifying Examination, one of several changes to the solicitor licensure process in England and Wales scheduled to be implemented in 2021. This month, we’re shifting our attention closer to home to look at the standardized, open-book lawyer licensure examinations that were introduced a little over a decade ago in Ontario.
Just as each United States jurisdiction determines its own process and rules for admission to the bar, in Canada a law society for each province or territory determines that province’s or territory’s licensure process. In Ontario, lawyer licensure is governed by the Law Society of Ontario (known until recently as the Law Society of Upper Canada).
Lawyers in Ontario, as in most of Canada, are licensed as both solicitors and barristers, in contrast with the distinct licensure processes for solicitors and barristers that exists in England and Wales. Since 2006, candidates for the bar in Ontario have been required to take two summative licensure exams, the Barrister Examination and the Solicitor Examination. These exams, offered in both English and French, cover federal and Ontario law as well as ethics and professional responsibility (the different areas covered on each exam reflect a distinction between entry-level barrister and solicitor competencies). Each exam is seven hours long and includes 240 multiple-choice questions; the exams are given on paper and held two weeks apart, three times per year. Candidates can take the two exams in any order and may choose to take one exam or both during a given administration. Candidates must complete a law degree from an approved program before taking the exams; prior to being licensed, they must also complete a period of articling (apprenticeship) or alternative experiential training, as well as meeting a good character requirement.
The Barrister and Solicitor Examinations are administered as open-book exams, reflecting a longstanding practice in Ontario’s bar licensure process. The Law Society develops a set of study materials on an annual basis for the subjects that will be examined that year; purchase of the study materials is mandatory for all candidates, and candidates may not share, sell, or give away their materials. Candidates are permitted to bring these materials, as well as their own notes or texts, into the test room to use during the exams, but they are not subsequently permitted to remove any materials, books, or notes from the test room. The Law Society’s study materials may be used for all exam administrations offered in a particular year, but unsuccessful candidates must purchase a new set of materials if they retest in another year.
At the time the Barrister and Solicitor Examinations were first proposed in 2003, Ontario’s bar admissions process had remained essentially unchanged since 1957. That process, then known as the Bar Admission Course (BAC), required law graduates to complete both an articling placement and a pair of postgraduate courses that lasted between one and three months each, covering lawyering skills and substantive and procedural law topics. These courses, run by the Law Society and taught largely by practitioners, included both skills assessments and law exams; while the types of questions used on the exams varied, the questions were not developed in consultation with psychometric experts or formally validated.
In making the case for reforming the BAC requirements, Ontario’s Task Force on the Continuum of Legal Education argued that substantial changes in both legal education and the legal profession had rendered the postgraduate courses less necessary and more burdensome than they had once been, and that it was redundant to provide legal instruction both as part of a degree program and in a postgraduate setting. The adoption of the recommended reforms, they argued, would update Ontario’s bar admissions process for the 21st century, “remov[ing] unnecessary barriers to admission and respect[ing] the principles of equity to which the Law Society is committed,” while also reducing costs for candidates and continuing to serve the public interest. And they argued, further, that standardized examinations would “more effectively assess candidate competence” than the varied exams and assessments that had previously been used as part of the BAC courses. The Barrister and Solicitor Examinations, created in response to these recommendations, are based upon lists of competencies required for entry-level practice that were developed (and later revised) with the help of psychometricians after extensive consultation with legal practitioners, following best practices for professional licensure.
It is interesting to compare the changes that took place in Ontario with those that are scheduled for implementation in England and Wales. In both cases, a shift away from postgraduate educational requirements toward standardized testing is seen as a necessary step to ensure that the licensing process effectively evaluates the competencies required for new lawyers, while also reducing the burden placed on candidates and creating a fairer and more equitable process. More broadly, both cases affirm a central role for high-quality licensure exams in the midst of a changing legal profession. As the Testing Task Force moves forward with its study of the bar examination in the U.S., it, too, must consider how the exam can best keep pace with a dynamic profession, while always ensuring that it continues to be a valid and reliable measure of the minimal competencies required for new lawyers.
- George Hunter, et al., Task Force on the Continuum of Legal Education: Report to Convocation (2003).
- The cost of the materials in both digital and paper form, Can$150 per exam, is included in the examination fees of Can$750 per exam. https://lso.ca/becoming-licensed/lawyer-licensing-process/fees-and-forms/fees-schedule.
- Dialogue on Licensing Topic 3: Reference Materials. Licensing Examinations: Assessment of Entry-level Competence 34–35.
- supra note 2, 4–5.
- Id. at 20.
- supra note 5, 36–37. In late 2018, Ontario completed a new review of its bar admissions process, the Dialogue on Licensing / Dialogue sur l’accès à la profession, motivated in part by a persistent shortage of articling positions for candidates. A number of options for reform were considered, including doing away with the articling requirement altogether (none of the options included changes to the Barrister and Solicitor Examinations) (Peter Wardle, et al., Professional Development and Competence Committee: Options for Lawyer Licensing (2018)). The recommendations that were ultimately adopted by the Law Society’s governing body will maintain the articling process, with some changes; the addition of a new skills examination or assessment remains under consideration, although the details of what it might involve are still unknown. The recommended changes are scheduled to be implemented in 2021.