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The Practice of Law

Speaking Goodly

Many years ago, someone who I was related to was arrested on a relatively minor charge, but one which had potentially devastating consequences for his professional reputation and career development. Having access to money, he hired the late great criminal defense lawyer, Austin Cooper to defend him. That is how I found myself sitting through the only criminal trial that I have ever seen which was not on television or in a movie.

There was conflicting testimony and I thought that it was a pretty close contest. That is until Austin Cooper skillfully conducted his cross examination of the Crown’s chief witness and then made a passionate closing argument. My relative was acquitted and I left the courtroom convinced that Austin Cooper’s well-honed communication skills made all of the difference. I was left wondering if my relative would have been acquitted if he had hired a lawyer who was not quite as eloquent.

Now, there are a number of issues about access to justice which arise from this story, not the least of which is whether my relative might have been convicted if he did not have the financial resources to hire one of the leading criminal lawyers in the country to handle a relatively minor charge. I suspect that the answer to that is yes. However, that is a discussion for another day.

The topic today is whether lawyers should have to have some minimum level of proficiency in English or French to be considered to be competent to practice law in Canada.

Not every lawyer can speak or write well in English or French. It was said about Jean Chretien that he was the first Canadian prime minister to have mastered neither of Canada’s official languages. He did pretty well for himself anyway. For most lawyers, however, being able to communicate effectively is a fundamental job requirement.

Practicing law is, after all, to a large extent about being proficient in oral and written communication skills.

Despite this, there are many lawyers who were born and educated in this country who cannot communicate well in either of Canada’s official languages. As a bit of an aside, there are a good number of lawyers from distant lands who speak English or French differently, but often ‘better’ than we speak it here. And then there are those from places like the U.K. who take it as a given that they speak English better than we do here and those from France who are equally convinced that they speak French better than we speak it here. Let’s not even talk about the Americans who think that there is only one way to speak English (the wrong way.)

Any lawyer who regularly reviews draft documents from opposing counsel will attest to the fact that there are plenty of native-born Canadians whose mastery of English or French is unimpressive.

So where does that leave those lawyers whose first language is neither French nor English and who struggle a bit with both of them, but whose practice requires them to communicate effectively in one of those languages? How can they possibly serve their clients well? Whether it is an issue of using clear contractual language or striking just the right tone in court, how can anyone whose English or French is not excellent do a great job?

I don’t have an answer to these questions, which I expect are fairly politically charged. So politically charged that I thought long and hard about whether to write about this topic at all. I expect that in today’s politically correct environment even asking these questions could provoke suspicions of racism on my part. But what the hell, I’m retired. I can take some risks.

I am unaware of any requirement in the legal profession that lawyers demonstrate an ability to communicate effectively in English or French except to the extent that they have to be able to make their way through law school and pass licensing exams. (Of course, the province of Quebec requires professionals to demonstrate basic proficiency in French, but that has nothing to do with competence and everything to do with tribal politics.)  If there are any such requirements, I can assure you that they are not particularly effective.

Certainly, there are lawyers whose proficiency in English or French is less than ideal who can make a valuable contribution to the profession. Foreign-trained lawyers working on international transactions jump to mind. Their knowledge and experience gained elsewhere may be of tremendous value. There are other individuals who are simply so intelligent and insightful that they can make a meaningful contribution despite any linguistic challenges. There are also lawyers whose native tongue allows them to reach ethnic communities who may otherwise be completely unserved. But still, certainly the vast majority of lawyers need to be able to communicate effectively in English or French to competently practice law in Canada.

What does not make sense to me is the absence of discussion around this issue. Presumably, discussion could lead to possible solutions to this problem. Perhaps lawyers should have to achieve minimum standards for written and oral communication before being admitted to the profession. Perhaps we should make specialized language training easily available to lawyers. Maybe the answer is that certain areas of practice should be restricted to those who can demonstrate a minimum level of proficiency in English or French (and any other language which in the future may be permitted to be used by counsel in the courts in Canada.)   Or maybe in some instances peer review of documents should be mandatory for those who are writing in a language with which they struggle.

Here is another thought. The larger firms have the most opportunities in the profession for people to work on international transactions and the greatest resources to have lawyers work in teams to compensate for each other’s weaknesses. They also have greater budgets than smaller firms to offer support such as language training and peer review of documents. One might think that they would be hiring most of the internationally trained lawyers. Yet, anecdotally, at least, it appears that many foreign trained lawyers struggle to find employment at the large firms (or any firms) and feel compelled to start their own practices.

The one thing that does not make sense, at least to me, is that we allow people to offer services to the public if their communication skills are such that they cannot do so competently. As a profession we do absolutely nothing about it – presumably because we fear being accused of racism or something less evil but equally unacceptable. Either that or the profession just does not give a damn.

Post-Script

I have been working on this article for a while. I wanted to be careful since I fear that I am treading on dangerous ground. Just as I was finishing it up, I came across a post on LinkedIn advertising for a litigation lawyer. The advertisement included the following: “A good command of English is essential.”    You would think that this would be obvious in a posting for a litigation position, but nonetheless the advertiser correctly felt it necessary to specify, presumably to avoid having to sift through many applications from advocates who do not have the essential skills required to advocate effectively.

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