Foreign trained lawyers face hurdles

Foreign-trained lawyers face hurdles

By Michael Rappaport
Toronto
December 11 2009 issue

[TL Price for The Lawyers Weekly, Images by Dreamstime.com]
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Lawyers trained abroad who want to practise in Canada must overcome many hurdles, not least of which is having their legal education and experience recognized by the Federation of Law Societies of Canada (FLSC).

The National Committee on Accreditation (NCA) is the standing committee of the FLSC that is responsible for evaluating the credentials of foreign-trained lawyers and awarding certificates of qualification that permit the recipient to apply to write Bar admission exams in most provinces with the exception of Quebec, which has its own process. In Manitoba and the Maritime provinces, the NCA’s recommendations are considered on a less formal basis.

According to FLSC statistics, in the past decade the number of applicants has more than tripled from 225 in 1999 to 749 in 2009. Of the 749 applicants who applied to be assessed by the NCA in 2009, the majority were from the U.K. (203), followed by the U.S. (141), India (107), Australia (79) and Nigeria (39).

Deborah Wolfe, managing director of the NCA, says evaluation of applications is a multi-stepped process.

‘First, we look at the country where the applicant did their law degree, whether it’s a common law, hybrid or civil law jurisdiction. Then, we examine the law school the applicant attended, whether it’s accredited, how high its standards are and the course of study. Finally, we review the applicant’s grades overall and work experience,’ Wolfe explains.

After the NCA reviews an applicant’s qualifications, the NCA will recommend the following options: (1) the applicant pass challenge examinations in specified areas of law; (2) the applicant take specific courses at a Canadian law school; or (3) the applicant complete a Canadian law degree.

‘Over 80 percent of the time, applicants are told to complete challenge exams or take additional courses at law school,’ Wolfe says. At a minimum, applicants must write four challenge exams in the following core subjects before they may be granted a certificate of qualification: (i) constitutional law, (ii) criminal law, (iii) evidence and (iv) corporate law.

Foreign-trained lawyers must pay $525 to have their credentials evaluated by the NCA. The challenge exams each cost $525 to write, not including the cost of required textbooks. Overall, Wolfe estimates that even if an applicant is required to write only the minimum number of exams, he or she can expect to spend around $3,000.

The challenge exams are self-study and there has been a distressingly high failure rate. According to FLSC statistics, 4,515 foreign-trained lawyers applied to be assessed from 1999 to 2009, but less than half of applicants, 1,708, ended up with certificates of qualification.

In response to the low rates of successful applicants, the government of Ontario partnered with the University of Toronto’s Faculty of Law to create the first ever bridging program aimed to assist foreign-trained lawyers seeking accreditation to practise law in Ontario.

The University of Toronto’s Faculty of Law will be opening its Internationally Trained Lawyer (ITL) program in September 2010 with $4 million in funding from the government of Ontario. Other stakeholders include the Law Society of Upper Canada, the National Committee on Accreditation, Toronto Regional Immigrant Employment Council, Pro Bono Law Ontario and Pro Bono Students Canada, as well as a number of law firms.

In an interview with The Lawyers Weekly, Jane Kidner, the assistant dean of the ITL program, commented upon the challenges faced by foreign-trained lawyers who want to practise in Canada.

‘It’s a problem that has plagued the profession for years. There are increasing numbers of lawyers who want to practise in Canada but many barriers that stand in their way,’ Kidner says.

Currently, the challenge exams are all self-study, so applicants who have difficulty with the material are on their own. The exams are graded either pass or fail, and applicants are permitted to rewrite an exam once. However, if applicants fail the exam a second time, they are instructed to take a course in the prescribed subject matter at a Canadian law school.

‘Many of these lawyers come to Canada with superb credentials, solid legal backgrounds and substantial experience, but they lack the linguistic fluency and cultural norms to succeed,’ Kidner says.

The ITL program is designed to assist applicants prepare for the NCA challenge exams and also to help foreign-trained lawyers adapt to Canada, with an emphasis on language and cultural fluency training. The one-year program will charge about $3,000 for tuition, which includes the costs of cultural fluency workshops and legal work placements.

Workshops in cultural fluency are essential, according to Kidner, since many foreign-trained lawyers may not be aware of the expectations and cultural norms that Canadians take for granted. In addition, she says the work placements will provide students with an opportunity to learn on the job and begin to develop their own contacts, which may lead to articling positions or future employment.

The ITL program plans to admit about 90 to 95 qualified candidates for the September 2010 school year.

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Some complain about Canadian accreditation process

Some foreign-trained lawyers who applied to have their education and experience evaluated by the National Committee on Accreditation (NCA) have complained that the process isn’t sufficiently transparent and the NCA recommendations sometimes differ widely for applicants with very similar backgrounds.

When the NCA reviewed the applications from Modupe Egunjobi and Solmaz Separy, they should have appeared very similar — at least on paper.

Both obtained law degrees from law schools in common-law jurisdictions: Egunjobi from the University of Ibaban in Nigeria and Separy from the University of Buckingham in England. Both performed very well in their respective academic programs. After completing their bachelors’ of law, both earned masters’ in law from the University of Toronto’s Faculty of Law.

The only difference between Egunjobi’s and Separy’s law degree programs was that Egunjobi’s law degree program took the traditional three years while Separy’s law degree program was condensed into two years without any summer break.

Yet the NCA recommended that Egunjobi pass four challenge exams — the bare minimum —while Separy was informed that she would have to write eight challenge exams if she wanted to be eligible to write the Bar admission exams. Given that each exam costs $525 to write (not including material) and can take weeks of preparation, the difference was not trivial.

Egunjobi says that she knew of many other applicants with similar experience that were given different recommendations by the NCA. She was critical of the NCA for not providing sufficiently detailed justifications for their decisions.

‘The committee was not transparent. They did not provide an explanation as to how they arrived at their decision,’ Egunjobi says. Currently, Egunjobi is an articling student at the Family Responsibility Office at the Ministry of Community and Social Services

In an interview with The Lawyers Weekly, Deborah Wolfe, managing director of the NCA, defended the evaluation process and maintained that the reasons given for the recommendations were sufficient. ‘We tell people why they were assigned exams,’ Wolfe says. ‘It could be because they didn’t take a course or their performance was poor.’

‘People might feel that they are treated unfairly since they might have lots of practice but still they may lack knowledge in the areas we require,’ says Stéphane Rivard, president of the Federation of Law Societies of Canada.

In contrast, Separy, who is currently an associate at the Toronto office of Blake, Cassels & Graydon LLP, says that ‘more disclosure on the assessment process would be welcome.’

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