You might have read last month that the Law Society of Upper Canada is worried about the newest articling crisis in Ontario. So worried, in fact, that it’s going to set up a working group to examine the problem.
I don’t mean to belittle this effort, which is surely well-intentioned. But few subjects have been studied, task-forced and working-grouped more than articling (Ontario’s last kick at this can was in 2008), so it’s difficult to believe this new version will deliver different results.
What’s the nature of the latest crisis? According to Law Times:
- The number of registrants in the LSUC’s licensing program has steadily increased over the last five years, from 1,400 in 2006 to 1,750 in 2010. (Although this should come as no surprise to law societies, since most law schools in Canada have increased the size of their classes over the last decade.)
- In 2008, 5.8% of applicants ended their first year in the licensing process without an articling position. In 2011, that rate had more than doubled to 12.1%. (Although that still means 87.9% of applicants do get articles, a pretty good number that, considering only 68% of 2010 law grads in the U.S. have legal jobs nine months after graduation, is arguably phenomenal.)
- Even more law graduates are expected to enter the Ontario market over the next few years, from the University of Ottawa, Lakehead University, the University of Montreal, Thompson Rivers University, and overseas. (Although the ongoing problem with articling didn’t prevent the law society from approving the new law school at Lakehead earlier this year.)
It seems to me that it’s time we went back to basics. Rather than trying to fix, save, or even junk articling, we should be asking ourselves why it exists — what problem it’s meant to be solving. Asking that question takes us down some interesting roads.
The why of articling
Articling can be defined as an intermediate stage between education and practice, an apprenticeship through which a novice lawyer learns the art and mechanics of professional practice from an experienced practitioner. It’s on-the-job training to help improve new lawyers’ skills. Robert Shawyer, in the Law Times article, sums up the popular view: “School can only teach so much. It’s the real-life experience of working under a lawyer and getting your feet wet in the client’s file that teaches you how to be a lawyer.”
That’s nice and all; but why does articling matter so much that we make it a mandatory element of bar admission? Well, without articling, new lawyers presumably would enter the profession lacking an appreciation of how law is actually practised and lacking any experiential knowledge of court procedures, client interaction and the like. They wouldn’t know what they’re supposed to be doing, which would be unfair to them and especially to their paying clients.
That, fundamentally, is why students without articles are barred from practice. Articling is more than just a nice-to-have internship experience. It’s a quality assurance program that provides lawyers with the tools to justify admission to the bar; without it, they’re not fit to represent clients.
That’s what we tell ourselves, at any rate. But there are at least two problems with this reasoning.
First: if articling is so important, why is it so brief? Trainee solicitors in the U.K. spend two years apprenticing. Germany’s Referendarzeit training period is likewise two years. Medical internships in many countries can last up to seven years. Even our own law degrees take three years to complete. Measured against these standards, one year of articling seems an awfully short time to ensure a new lawyer has grasped the complex technicalities and significant responsibilities of law practice.
Secondly, if articling is how the profession discharges its responsibility to ensure new practitioners’ competence, why is the process almost completely privatized? Through articling, law societies have effectively outsourced the practical training of new lawyers to the private sector, reserving only a minimum of oversight to themselves. Giving over the central aspect of new lawyers’ quality assurance to law firms is an interesting way of exercising regulatory authority.
If we really believed that articling is to ensure new lawyers are competent enough to practise, we’d be a lot more demanding about it. We’d make it a minimum two-year requirement (probably longer) and we’d enforce detailed guidelines for its administration. (We’d also rebuild our law schools from the ground up, but let’s tackle one implausible task at a time here.) We do neither of these things, however, because quality assurance was never really the point of articling.
Articling, when you get right down to it, is vestigial — it’s a relic of informal apprenticeship from the profession’s earliest pre-law-school days, when there were few other ways to become a lawyer. Read this lively account of articling in British Columbia in the early years of the 20th century and you get a sense of why articling evolved and what it accomplished.
How articling started is how it continues. Articling is one year long because it’s always been one year long. It’s administered by the private bar because it’s always been administered by the private bar. There are no other reasons.
Today, however, lawyer training is far more sophisticated. Canada has more than 20 certified law schools, bar admission programs operated by law societies in every jurisdiction, and a CLE system that’s never been deeper or more sophisticated. With all these tools at our disposal, we shouldn’t really need a mandatory apprenticeship system anymore. So why do we still maintain one?
Because we also have an ongoing issue with the competence of practitioners, especially new ones. Our law schools don’t provide professional training and it’s unlikely they ever will. Bar admission courses are brief and devote a fair percentage of their time to re-teaching law school courses. About half of all lawyers, at best, use CLE regularly, hence the current fascination with mandatory continuing professional development.
The thing is, we don’t actually have a way to ensure the competence of new lawyers — and for a self-regulating profession invested with so much of the public trust, that’s more than a minor problem. So we’ve tried to reconstruct articling — a decentralized, informal apprenticeship process — as a quality assurance program for ourselves and for the public. But that was never its purpose and that’s not how it evolved. No wonder it’s not working especially well.
Articling is a 20th-century square peg, and it’s a perfectly fine square peg as far as it goes. But trying to pretend it’s meant to fit into a 21st-century round hole is an exercise in frustration. I suggest we stop trying to do that.
Back to first principles
The articling crisis will be resolved when we fully face up to our new lawyer competence challenge. If we’re serious about ensuring new lawyers are fit to represent clients, then we should continue to enforce a mandatory articling period — but we should be much stricter about its requirements and implement a higher degree of regulatory influence over its application.
Conversely, if we’re not serious about ensuring new lawyer competence, or if we conclude that articling is not the appropriate vehicle to accomplish that goal, then we should remove it as a mandatory step for bar admission. Maybe, in that scenario, articling will evolve into a privately administered skills-training program — kind of a professional LL.M. in law practice for which new lawyers pay fees. Or maybe, like all vestigial features, it will simply fall away over time.
Either way, let’s start to address the underlying issue. The way to “fix the articling problem,” it seems to me, is to stop trying to fix articling. Let’s figure out what we’re actually trying to achieve through the use of articling, and create structures and systems specifically tailored to address those needs.
And in that context, let’s be honest with ourselves about whether and in what ways articling serves the interests of the modern legal marketplace. The current state of affairs is unsustainable, and trying to sustain it much longer is going to hurt.