Entre Nous

“Integrity is doing the right thing, even when no one is watching.”

– C.S. Lewis

In late 2021 and early 2022, the Law Society of Ontario received information that a third-party tutoring company was facilitating cheating on the bar admission exams by providing cheating keys that directly mapped to the Law Society’s November 2021 licensing examinations. Due to concerns around COVID-19, those examinations had been administered online. With the integrity of the November 2021 examinations being called into question, the Law Society of Ontario took the following immediate actions: • it conducted a comprehensive forensic analysis of all examination results for the November 2021 barrister and solicitor examinations (847 barrister examinations and 845 solicitor examinations); • it retained a team of external investigators; • it cancelled online examinations and rescheduled them to an inperson format; and • it placed affected candidates’ licensure or eligibility to attempt another examination in abeyance pending the outcome of the investigative process.

The Law Society then announced in March 2022 that it would cancel its March 2022 licensing examinations, leaving candidates scrambling with three days’ notice ahead of the exams. Over 500 students and lawyers

signed a letter urging the Law Society to proceed with the exams as scheduled, citing interruptions to articling terms, travel plans or plans to write exams in other jurisdictions. The Law Society did not change its plans, citing the integrity of its examination process.

In May 2022, the Law Society of Ontario commenced a civil action against Canada NCA Exam Guru Inc. and its sole shareholder, Aamer Chaudhry, (as well as certain John Does) seeking relief that included a permanent injunction prohibiting the defendants from possessing and distributing examination content owned by the Law Society. In addition, the Law Society sought damages for breach of confidence, conspiracy, inducing breach of contract and copyright infringement. Mr. Chaudhry is described in the statement of claim as “a former LSO licensing candidate, but … not a licensed lawyer or paralegal.”

The Law Society alleges that Mr. Chaudhry distributed examination questions and answers to students enrolled in NCA Exam Guru’s preparation courses for the Law Society’s licensing examinations. It claims that he did so via Skype chats, WhatsApp messages and email. The claim further indicates that examination content “was imparted to the defendants … in breach of confidence” and that its use by the defendants was “unauthorized”. NCA Exam Guru and Mr. Chaudhry denied all allegations by the Law Society and issued a statement describing the Law Society’s allegations as “false and defamatory”.

Thereafter, in the summer of 2022, the Law Society notified candidates that, based on the results and recommendations of the forensic analysis, there was strong support for the conclusion that more than 150 of them had engaged in “prohibited actions” regarding the November 2021 licensing examinations. It initiated investigations during which the candidates were provided with an opportunity to respond. The Law Society advised that it would assess each candidate’s situation based on the candidate’s written submissions, evidence provided by the investigative team, the forensic analysis and the individual’s candour and cooperation with the investigation. Sanctions being considered by the Law Society included: • deeming the results of the November 2021 barrister and/or solicitor licensing examinations to be void (in which case the candidate would receive a “fail” for the voided examination, which counts as an examination attempt); • deeming registration in the Law Society’s licensing process to be void (in which case all previous examination attempts as well as articling might be voided); and/or

• referring the matter to the Hearing Division of the Law Society

Tribunal.

A full year after the examinations in issue were written, decisions were rendered against most of the individuals under investigation. The administrative outcomes were reported by the Law Society of Ontario as follows: • 21 candidates were advised that their examination results are void. They received a fail result for the examination, which counts as a failed attempt. • 126 candidates were advised that their exam results are void and their registration in the licensing process is also void. Such individuals are unable to reapply to enter the licensing process for a period of one year. In addition, the rendering of this administrative decision must be disclosed on future applications, at which point they may be subject to an investigation concerning whether they are presently of good character. • one candidate was advised that neither the exam result nor the registration was being voided. • 22 candidates were advised that the investigation into their conduct had been closed without further administrative action being taken.

The Candidate Agreement that each applicant signed requires candidates to “be of good character” and to refrain from engaging in certain “Conduct Unbecoming a Candidate”, which includes a category all its own called “Licensing Dishonesty”, namely:

engaging in any form of dishonesty, fraud, cheating, misrepresentation, or other misconduct related to any aspect of the Licensing Process in order that a Candidate obtains academic credit or other Licensing Process advantage of any kind, whether or not the Candidate has been sanctioned for the conduct, and includes but is not limited to:

a. copying another person’s answer to an examination item during a

Licensing Examination;

b. consulting an unauthorized source during a Licensing Examination;

c. bringing into the examination room any unauthorized materials;

d. removing from the examination room any unauthorized materials;

e. being in possession of or using unauthorized information or materials prior to or during a Licensing Examination; or

f. assisting a person to carry out an activity mentioned in this section.

On the one hand, it is amazing that any of this needs to be spelled out. On the other hand, it apparently needs to be spelled out. 126 voided exams? For cheating!? We have been curmudgeons elsewhere about cheating (in the context of the college admissions scandal in the United States).1 Our views have not changed. By the time a student has gone through high school, an undergraduate degree (or at least most of one), the LSAT, law school itself and finally the preparatory examinations for admission to the bar, should it not have been drilled into the candidate’s head that cheating is dead wrong!? The most severe consequence for cheating, in this case, was the voiding of an examination and a one-year delay in being able to try again. Essentially, a slap on the wrist—better luck next time!

Hundreds of people want to become members of a learned and noble profession that values integrity above almost everything else, and they are prepared to risk it all by cheating to get in?2 How can they be entrusted with confidences, privileged information, trust funds, property or people’s liberty if they cannot demonstrate basic (and it really is basic) integrity? Of course, they are not risking it all. They are only risking a one-year delay to gaining the credential that deems them “learned” and an officer of the court. Sure, they might have to show that they are somehow reformed and are now of “good character”, but how easy is that? A few hours in an ethics course, a meeting with a bencher, a few words about how humbled they were by the experience and, hey, presto! “Bob est ton oncle!”

The last time we worried about such things, we wondered about engineers who build bridges or design aeronautic guidance systems. What if they cheated? What if they did not have the actual skills to do the things people need them to do? Lawyers, judges and academics, need more than just skills to do their jobs. They need to be held to a higher standard. Nothing less than justice is at stake. It is interesting that the Law Society of Ontario was concerned about the integrity of its examination system. That is, it needed to stand up as something that could not be compromised. It needed to hold its own. It needed to be worthwhile and admirable. People needed to be able to rely on it.

Similarly, lawyers must have integrity so that others can be sure about them. They need to be trustworthy, principled and honourable. They are going to be fiduciaries with knowledge and power that needs to be exercised in the best interests of the client, not the self. Look, none of us are perfect. We are going to make mistakes—this is why we have insurance. But integrity is the starting point of character. Not cheating is one of the easier tasks we are called upon to do. Last time we thought about such things, we suggested that “those among us who cheated at any point in the process know who

they are … they are probably terrified at the prospect of any one of us finding out who they are.”3

It has, therefore, been a troubling time to watch a leading academic scholar and former judge who holds nearly a dozen honorary degrees and the Order of Canada4 stumble near the finish line of a distinguished career. Not only are her claims to Indigenous ancestry very much suspect (thanks to some uncompromising journalism from the CBC), but claims of a Q.C. appointment, registration in various law societies, an LL.M. from Cambridge, an honorary degree from the First Nations University of Canada and various academic publications all appear to be figments of an overactive imagination. This seems to be the ultimate cheat: the falsification of not only ability and credentials, but of identity itself. The portmanteau “pretendian” has been coined to apply to such a person.

It is not pleasant to watch someone fail, especially when the failure is spectacular, unseemly and public. This is especially so when the individual has otherwise demonstrated abilities and even successes. Skilled people hold such promise—to others, to the profession, to their family, to themselves. But cheating can undo decades of accomplishment. They say that in the law your reputation is everything. If you have a reputation for lacking in integrity, consider yourself finished. You might make it through university, you could pass the LSAT, you might get admitted to the bar, you could be a top 40 under 40, you might become partner, you could get appointed to an office or the bench, you might even get the Order of Canada. If you cannot, however, do it with integrity, beware. Pride comes before a fall. And everyone is watching.

“Live life in such a way that you would not be ashamed to sell your parrot to the town gossip.”

– Will Rogers

ENDNOTES

1. “Entre Nous” (2019) 77 Advocate 329. 2. A young associate recently told us she knows “loads” of people who cheated on the Professional Legal

Training Course exams. If you are reading this endnote, you are probably not one of them. 3. Supra note 1 at 333. 4. At least at the time of writing she does.