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Chapter 5: Reawakening

The Idea Resurfaces, part 2

A document headed Notes Used by President Klinck at Meeting of Committee on Faculty of Law—Mr. Lord’s Office, City Hall, January 13, 1938 reveals that by the time the university committee met for preliminary discussions, Klinck was prepared to engage in a very full review of all important policy issues ranging from entrance requirements through to projected annual budgets, staffing ("Three full time and four or five part-time a fair working unit. A Dean."), and library ("8,000 to 10,000 volumes. Annual appropriation thereafter"). None of these policy issues seemed to come as any great surprise to the other members of the committee. They moved very quickly toward consensus on many issues that might have proved controversial. Sherwood Lett and A. E. Lord, though serving on the university committee, were both fully qualified lawyers. The preliminary consultations and careful prepared groundwork were quickly made manifest.

A memorandum generated following the January 13, 1938 meeting reflects a degree of early consensus around a structure of legal education somewhat like that prevailing in common-law Canada in the 1990s. In two crucial respects, however, this early document provides powerful evidence of the extent to which, even by the late 1930s, issues surrounding legal education had still not taken form firmly in the Anglo-Canadian mind. The committee present (Sherwood Lett, chair, President L. S. Klinck, Dean Finlayson, and A. E. Lord) agreed that "a faculty of law is desirable in principle, provided that such faculty could be set up and maintained at a high standard and provided further that the necessary arrangements, financial and otherwise, could be agreed upon with the Benchers of the Law Society". They concluded, not surprisingly in light of President Klinck’s background research, that "all lectures should be held at the University" (except for use of the courthouse "as a purely temporary arrangement"), that the degree to be offered should be designated as the "LL.B." and that "a law library should be established at the University as soon as possible". These events are not particularly surprising from our perspective nearly six decades later.

Their early uncertainty about the period of legal training and the way in which it should be structured, however, provides a good indication of the wide degree of latitude open to early twentieth century Canadian legal educators as they worked to remake the process of training for the legal profession. The university committee clearly planned to segregate formal instruction from the articling experience (rejecting as unworkable the "concurrent" system of legal education then in place in British Columbia, Manitoba, and Ontario) and to require an extended period of training which, over time, would include significant elements of both. Beyond this plan, however, nothing was clear. The matter was clearly considered to be difficult and in need of further consideration. The committee simply agreed that "the period of legal education should be extended over a period of seven years. This might either be four years university and three in a law office, or five years university and two in a legal office" (by comparison, lawyers training in the 1990s typically complete between two and four years of undergraduate education, three years of bachelor of laws studies, and one year of articles, totalling six to eight years of post-secondary education and apprenticeship).

A certain lack of clarity about the overall duration and composition of legal education might, on reflection, seem not altogether unwarranted. Their tentative conclusions about how the jurisdictions of the university and the law society over legal education would mesh are, however, astonishing. President Klinck, it will be recalled, had been advised by university presidents and legal educators across Canada to protect his turf, to ensure that legal education was fully part of the university culture, and to keep the legal profession from officious meddling in any university faculty of law that might be developed. He seems to have taken this message very seriously indeed and to have persuaded others of its importance. A Memorandum of Meeting Held in Mr. Lord’s Office Re Establishing Faculty of Law at the University of British Columbia, January 13, 1938, probably prepared by the designated secretary of the meeting, A. E. Lord, recorded that "[t]he control of the faculty, including examinations and proceedings with respect to call and admission, should rest with the University" (emphasis added). It seems highly unlikely that these words could have slipped unnoticed or unintended into minutes prepared by anyone the least familiar with the ways of the legal profession, much less into a document prepared or consented to by a fully qualified solicitor. The words "call and admission" are lawyers’ terms of art. Quite precisely and unambiguously, they refer to call to the Bar (that is, attaining formal status as a barrister) and admission as a qualified solicitor. The astonishing conclusion is that the committee at this point envisaged a future in which the Law Society of British Columbia would cede all of its authority over admission to the legal profession to the university.

This particular affront to the dignity of a learned profession did not survive past the first joint meeting of the university and law society committees on the establishment of a faculty of law. The two committees met jointly on January 18, 1938, at the home of Senator Wallace Farris and Evelyn Farris. The full membership of both committees was present on that occasion (representing the Law Society of British Columbia: Senator J. W. de B. Farris; R. L. Reid, R. L. Maitland; and R. H. Tupper; representing the university: President L. S. Klinck; Dean J. N. Finlayson; Sherwood Lett; and Arthur Lord) and the principle of establishing a university law faculty was easily agreed upon "provided that such faculty could be set up and maintained at a high standard", and subject to satisfactory arrangements being made between the law society and the university. On the crucial and related questions of the duration and structure of training for the legal profession on the one hand and control over admissions to the law society on the other, the January 18th meeting took matters considerably beyond the stage they had reached within the university committee the previous week. A memorandum of the joint meeting records agreement on the following points:

2. Law Course
The course should be a combined one leading to the degrees of B.A. and LL.B. and should extend over a period of six years. Such course to be established only on the understanding that students would be admitted to call and admission on completion of an additional year in a law office and that the Benchers would accept the University degree as part of the law students course. The Benchers would have the option of deciding whether examinations would be required in practice and procedure, and statutes at the end of the students time in an office.
3. Control
The control of the faculty, including examinations, set in collaboration with the Benchers, should rest with the University.

Beyond these points, the joint committee estimated costs of the new faculty ($15,000 per annum plus $2,000 per annum for the law library), and agreed in principle that "all lectures should be held at the University". The committee was obviously in a hurry. It was agreed too that the rooms societies and library at the courthouse might be used "purely as a temporary arrangement", that Maitland and Farris would look into the matter of the "Contribution from Law Society as proportion of cost", and that a university law faculty might be launched in time for the fall of 1939 ("provided that the legal status and financial matters are satisfactorily arranged").

The proviso about the need to see to "financial matters" signalled a serious difficulty for the scheme. Lack of money proved the undoing of this initiative, just as had always been the case in the past. A plea of poverty is not in itself conclusive of human motivation but it is, in this case, all that the archival record makes available to us. Lawyers know well that when poverty is pleaded in excuse of seemingly wrongful or short-sighted conduct that it often camouflages another root problem in the character, ranging from moral defect, inadequate commitment to fulfilling one’s duties, and lack of resolve to structured mismanagement and pervasive incompetence. The motivations of law societies are at least as mysterious as those of tort-feasors, and it is unclear exactly why the Law Society of British Columbia failed to provide the funds necessary to support an educational arrangement that its own committee had sought out, worked on, and negotiated. This was, after all, the third formal approach the Benchers had made to the university on this matter in just fifteen years.

Certainly by the autumn of 1938 it was becoming increasingly clear that a workable plan for legal education was available to be implemented subject only to the question of whether the law society was, at the moment of decision, willing to commit sufficient financial resources. On October 24, 1938, a second meeting of the combined law society and university committees was held. The university continued to be represented by Klinck, Finlayson, Lett, and Lord, although law society representation had changed. The new committee representing the Benchers included W. Ernest Burns, Sidney A. Smith, Senator Wallace Farris, and Reginald Tupper. This change in personnel did not present any serious difficulty, and all of the points of agreement that had been reached on January 18, 1938 "were reaffirmed". It seemed too that the problem of finding temporary accommodation for a law faculty had been overcome through the efforts of Senator Farris, who had obtained Attorney-General Gordon Wismer’s assurance that relocation of the provincial police office meant there would be "room for law student lectures in the Courthouse". The sticking point arose in "the contribution from the Law Society as proportion of cost of proposed faculty" (emphasis in original). Arthur Lord’s memorandum of the meeting records that:

The representatives of the Law Society were quite definite that the Law Society could not take care of the cost of the faculty which would be over and above the fees obtained from those enrolled in the faculty, but Senator Farris thought that the Law Society would make some contribution and it was suggested that this might take the form of a grant, say of two thousand dollars a year over a period of years for the Law Library to be established eventually at the University.

As a result, Farris and W. Ernest Burns (the latter was "treasurer" or president of the law society) agreed to take to the Benchers the idea of providing indirect support through an annual grant to the university law library. President Klinck and Sherwood Lett, for their part, agreed to sound out the board of governors as to the possibility of seeking an extra $8,000 per year from the government in order to cover the anticipated shortfall expected under the projected $15,000 law faculty budget.

The next day, Burns wrote to Klinck in his official capacity as law society treasurer to advise that "in the event of the Law Faculty being established at the University as from a year from now, the Benchers will obligate themselves to provide up to $2,000.00 as may be required for the purpose of establishing a Law Library at the University". Helpful though this may have been, the offer of a once-off $2,000 grant fell far short of the commitment of an annual sum in that amount which Farris had hoped to be able to secure.

As agreed, the matter of finances was taken up at the university board of governors on October 31, 1938, when Sherwood Lett made a presentation on the proposed faculty of law. The board duly approved the release to the senate of various background materials that had been compiled and a number of documents were forwarded to Stanley W. Matthews, secretary to senate, on November 4, 1938. At this point the paper trail disappears for a time. It seems that some combination of parsimony and bureaucratic inertia stymied this, the fourth attempt, to create a faculty of law at the University of British Columbia.

Like a persistent terrier, the law society was soon back at the heels of the university asking, yet again, that a faculty of law be established. If President Klinck felt the least frustration by these repeated approaches by an outside organization that had consistently proved unwilling to provide pocket-book commitment, he did not let it show. On January 26, 1940, the university president again met with a delegation of the law society (J. A. Campbell, W. E. Burns, A. R. MacDougall, R. H. Tupper, and Mr. W. H. Dixon). This new law society delegation again reviewed the 1938 proposals, again affirmed the law society’s satisfaction with the general plan of legal education outlined at that time, and again indicated their desire to do what they could "to facilitate matters". The 1938 consensus was clearly beginning to take on the status of a more or less fixed statement of educational principle.

Accepting that "nothing could be done in the 1940–41 session", the law society delegation expressed their "hope that an early decision would be reached which would enable the University to offer courses in Law beginning at the opening of the academic year 1941–42". Some concern was expressed as to the accommodation for a faculty of law. The law society delegation "made it very clear that any arrangements for class room accommodation and library facilities at the Court house should be regarded as purely temporary, and as soon as accommodation would be provided at the University all the work in Law should be given on campus". President Klinck, not surprisingly, concurred. On being advised that the procedure for consideration of the order in which new degree programmes would be created was a matter for the consideration of university senate rather than administrative fiat, Klinck reported that "[t]he delegation then wished to know if there were any steps which they could take to bring their representations more forcibly to the attention of the Senate and Board".

A few days later the university president jotted down some personal notes recording a series of concerns about the ability of the university to commence professional legal education. The notes make it clear that Klinck believed it necessary for "Law . . . to pay for additional courses for undergraduates" and that a law library would require a minimum $10,000 initial grant. The notes record President Klinck’s "Summary of Points", which included the following:

1. Limitation.—Classes are so crowded we can no longer count on absorbing more students.
2. Necessity for appointments in related courses; classes are now more than filled.
3. Virtually a certainty that additional courses for undergraduates in Law will be required.
4. $2,000 is only a nucleus for a Library.
5. Necessity for generous annual appropriations for Library.

Any and all of these problems could, of course, have been rapidly met if adequate funding were available to support the proposed law faculty. Although President Klinck had told a law society delegation on January 26, 1940, that "the amount of money involved in the establishment of a Faculty of Law was relatively small", it was apparent to all that a significant gap had to be closed.

In a report submitted to the senate, the board of governors, and the chancellor of the university on February 10, 1940, President Klinck provided Financial Information Supplementing the Reports of Committees on the Proposed Establishment of New Units of Instruction in the University of British Columbia. This document indicated the annual projected cost of a law faculty to be $17,000, of which only $7,000 would be recovered from student fees. The law society was in direct competition with other groups seeking to find a place on the university timetable for the introduction of new programmes. In this context, one particular passage in Klinck’s report stands out:

Those requesting the establishment of courses of instruction in Home Economics, Pharmacy and Law, are prepared to make a cash contribution towards the initial cost in the following approximate amounts: Home Economics, $15,000.00; Pharmacy, $5,000.00, and Law, $2,000.00.

Further documentation prepared within the university that month also focused on financing matters and the university, like the law society, was prepared to take the academic arrangements agreed to in 1938 as providing a sufficient blueprint for the actual operation of a law faculty, should it eventuate. A document President Klinck prepared for a meeting of the combined committees of the law society and board of governors laid out financial projections in some detail. It was apparent that considerable progress would need to be made if a credible law faculty was to be economically feasible. A particular obstacle was the need to develop a sizeable law library at a minimum cost of $10,000. The report pointedly noted that "[a]fter First year, no provision made for Library, and since the use of the Benchers’ Library is regarded as purely temporary, the University must make provision for an annual expenditure of $2,000.00 for Law books until such time as the value of same amounts to $10,000.00".

The next day the treasurer of the law society, W. Ernest Burns, wrote to confirm the availability of the courthouse for lectures, to assure the university that the courthouse library would be available to university law students, and to indicate that Benchers would probably be willing to contribute $2,000 annually "to aid in the establishment of a Law Library at the University" for the foreseeable future. Burns also indicated his belief that "if it is deemed preferable the Benchers would be willing not to earmark the grant for any particular purpose but to contribute for the general purposes of the Faculty" and urged that the law faculty be created in absolute priority over the other newly proposed programmes. Unfortunately, Burns had to acknowledge that he was "writing without any authority" and that these were only his predictions as to the likely outcome of discussions among the Benchers. Klinck’s past experience may have been such that he was unwilling to jeopardize other possible expansion of the university in reliance on predictions of future generosity on the part of the law society.

In the event, the senate met on February 21, 1940, and recommended to the board of governors that a faculty of law be established "second in priority among the five courses considered, if and when funds permit". The first of the new programmes to be established would be home economics. The tenacity of those members of the Bar who were committed to developing a faculty of law was impressive. Rather than accept either defeat or delay, they simply moved forward by a different route. J. A. Campbell, who had been on the most recent law society committee, at this point launched into action in his capacity as president of the Vancouver Bar Association (a voluntary group of lawyers). Writing on association letterhead (which, incidentally, recorded as vice-president Sherwood Lett, a member of the university board of governors and an active participant in the work of the university committee that considered creating a law faculty), he told Klinck on March 13, 1940:

I beg to inform you that the Vancouver Bar appreciates your efforts to establish a Law Faculty and that our committee are taking steps to interview the Premier and members of the Government in the hope that during the current year the Government will provide sufficient additional monies in its estimates to enable the Board of Governors to establish a Faculty of Law in the Fall of 1941.

Chapter 5 continued

Copyright © 1995 The University of British Columbia Faculty of Law. All rights reserved.
Please address questions or comments to Professor W. Wesley Pue, pue@law.ubc.ca