Beneath the Law
If “No One is Above the Law,” then everyone is beneath it. Beneath the Law is a frank discussion between two lawyers who have lived and breathed the legal system in Canada for over 30 years.
In this podcast hosts Stephen Thiele and Gavin Tighe of Gardiner Roberts, examine the arguments made in some highly contentious, and public cases, with a focus on the intersection between law and politics and where courtrooms become part of the political arena. In each episode Beneath the Law digs into interesting and current legal topics or legal battles and provides insight and commentary on the law and its application in our society.
Law is at its core the expression of the fundamental framework of any organized society – it is the fine print of the social contract. Courts play a fundamental role in any democracy, getting underneath the surface and beneath the law requires an understanding of not only what courts are doing but why.
Beneath the Law
Should Lawyers be Licensed without Passing the Bar Exam?
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If becoming a lawyer no longer requires proving what you know, what does the profession really stand for?
Gavin Tighe and Stephen Thiele take on the Law Society of Ontario’s proposal to scrap bar exams in favor of a training course, arguing that removing substantive testing undermines both public protection and the meaning of being called to the bar.
Drawing on their own experiences in law school and practice, they explore how legal education has changed, why baseline legal knowledge is essential, and how lowering standards risks public confidence in the profession.
They discuss the concerns about competency, mentorship, AI misuse, and an increasingly saturated legal market, ultimately questioning whether a profession without rigorous gate-keeping can still claim legitimacy as a learned profession.
Listen For
:25 Should lawyers be licensed without proving substantive legal knowledge
5:41 Why is the Law Society of Ontario considering scrapping the bar exams
9:42 How does removing testing put the public at risk
14:10 Can lawyers rely on AI without strong foundational knowledge
21:01 What happens to a profession when no one is allowed to fail
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Contact Us
Gardiner Roberts website | Gavin email | Stephen email
Gavin Tighe (00:00):
The Law Society of Ontario is thinking about scrapping the bar exams for future lawyers and instead is considering a training course. In other words, there would be no bar exam to determine whether people have the substantive knowledge necessary to call themselves lawyers. And I really do think that this is hugely problematic. To my mind, it denotes a failure on a number of fronts.
If you are putting forward people who do not have substantive knowledge of the law and of legal principles, why would they be lawyers? Why would I seek legal advice from someone who does not know what they are talking about?
Hello, and welcome to the next episode of Beneath the Law. Gavin Tighe here with Stephen Thiele. Stephen, how are you doing?
I am great, Gavin. How are you doing?
I am hanging in there. I just came back from a week in the UK, which was wonderful. I am feeling very civilized now, at the heart of British civilization.
Stephen Thiele (01:03):
Are you saying that Canadians are not civilized?
Gavin Tighe (01:06):
The bar and the guilds of the bar all sound very hoity toity. It sounds very colonial. I felt very colonial. But it did remind me of the great and long proud history of the learned professions, of which the law was considered to be one.
Stephen Thiele (01:26):
Well, we are still a very learned profession, and I hope that we are still a profession of high repute among most members of the public.
Gavin Tighe (01:37):
That is a great question. I think the reputation of the legal profession has suffered somewhat over the years. Many people have a view of lawyers, both morally and intellectually, that is perhaps not very flattering.
Stephen Thiele (02:03):
Within our own profession, there is debate about incivility among lawyers. I do not know if that has to do with changes in attitude, changes in competencies, or changes in who is admitted to the bar. There are a lot of issues we are struggling with.
Gavin Tighe (02:31):
There are lots of issues. One thing I think is important is that being a lawyer has to mean something. I do not think just anyone should be a lawyer. There have to be standards, and quite high standards, as with any of the learned professions, including medicine.
First, the public must have confidence in the skill and knowledge of lawyers. And second, being called to the bar should be an achievement. When a young person is called to the bar in Ontario or elsewhere, they should feel proud that they have accomplished something difficult and meaningful.
Stephen Thiele (04:04):
I am less concerned about whether someone feels proud and more concerned about whether legal education has been watered down. You and I went to law school around the same time, and I am not sure new lawyers today are trained with the same level of substantive knowledge or practical skills such as negotiation or oral advocacy.
My son is in law school now, and it is interesting hearing about how legal research today differs from what it was 30 years ago.
Gavin Tighe (05:41):
That brings us to what is currently in the news. The Law Society of Ontario is considering scrapping the bar exams and replacing them with a training course. There would be no testing in the traditional sense to determine whether candidates have substantive legal knowledge.
I think that is hugely problematic. If someone does not have substantive legal knowledge, why should they be a lawyer? Why would I seek advice from them?
Historically, law school was rigorous. You learned cases, principles, and how to analyze fact patterns and write legal opinions. I am not sure that same rigor exists today. Perhaps this move away from exams reflects that too many candidates would not pass because they lack the necessary knowledge.
Stephen Thiele (08:08):
There has definitely been a philosophical shift. When we attended the bar admission course, it had multiple phases including skills training and substantive law. Now there are just two multiple choice exams, one barrister and one solicitor exam.
You are not answering traditional legal questions anymore.
Gavin Tighe (09:42):
I may sound like the old guy in the balcony, but I think the regulator has an obligation to protect the public. Lawyers can cause enormous harm through negligence. We see this in our practice.
No one would accept doctors being licensed without testing their knowledge of anatomy or pharmacology. Why should lawyers be any different? The only way to ensure competence is through testing.
Stephen Thiele (11:43):
What concerns me is that the Law Society seems to be shifting focus toward softer skills like client relationships while moving away from testing substantive law.
Gavin Tighe (12:14):
There is nothing wrong with bedside manner, but I would rather have a doctor who can read a blood test. The same applies to lawyers. Baseline legal knowledge is what separates lawyers from everyone else.
Every lawyer should know what they do not know and when to refer a matter to someone else.
Stephen Thiele (14:10):
My concern is that this proposal puts the public at risk. We are already seeing lawyers rely on artificial intelligence and submit fake case law to courts. Without strong foundational knowledge, this problem will worsen.
Gavin Tighe (15:27):
Law is different from medicine or engineering. Anatomy is the same everywhere. Physics is the same everywhere. But law is jurisdiction specific. Someone trained in another country does not automatically understand Ontario law.
Stephen Thiele (17:21):
Exactly. There are different legal systems everywhere. Admission standards vary widely. All of this affects competency.
Gavin Tighe (18:23):
It is common sense that Ontario law is different from the law of Scotland or Japan. You cannot simply arrive at Pearson Airport and open a law office.
Stephen Thiele (19:21):
Not everyone who applies should pass. Right now, some candidates pass at rates barely above 50 percent, and the Law Society appears to be reacting by lowering standards.
The report proposing these changes is only about ten pages long. For something this fundamental, I expected much more analysis.
Gavin Tighe (21:01):
If no one can fail, then no one can truly succeed. Being a lawyer has to mean something. Otherwise, it is meaningless.
Stephen Thiele (21:52):
Other provinces have adopted different models, but they have not abandoned substantive testing. That component must remain.
Gavin Tighe (22:45):
I also think the profession is saturated. Many young lawyers graduate with enormous debt and no job prospects. Law schools sell an illusion of guaranteed success, which is unfair.
Stephen Thiele (25:21):
Ontario now has programs where students can avoid articling entirely. If exams are removed as well, we are simply handing out licences.
Gavin Tighe (26:21):
Great lawyers are not afraid of tests. If you are prepared, you will pass.
Stephen Thiele (26:56):
I want opportunities for younger lawyers, but not at the expense of merit based standards.
Gavin Tighe (27:42):
Articling was about mentorship and apprenticeship. Senior lawyers have an obligation to teach. I benefited enormously from great mentors, and I would not have had the career I did without them.
Lowering the bar or eliminating it altogether cannot be in the public interest.
Stephen Thiele (29:18):
That almost sounds like nobody is above the law and everyone is beneath it.
Gavin Tighe (29:26):
Exactly. Thank you all for listening. I am sure many people will disagree with us, and I welcome that debate. Often the best answers come from both sides of an argument.
Stephen, thank you very much. And always remember, if no one is above the law, then everyone is beneath it.
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