The Future of Articling in Ontario

Ontario has the unique position of having more applicants for articling positions than available positions. A panel at the Second Annual Conference Association for Canadian Clinical Legal Education discussed the future of articling in Ontario on September 24, 2011 at Osgoode Hall Law School.

Tom Conway of the Law Society of Upper Canada Task Force on Articling shared some of his personal views on the subject. He indicated there were 1,700 people who registered for articling in 2010-2011, and the situation is expected to get worse with UofO expanding its common law section, and the new law schools recently launched. The University of Montreal has also applied to expand their common law program, which may result in even further increases of law students.

The vast majority of articling positions are in the Toronto area (55%), and the majority of those positions are with large firms. Most practitioners in the province though are sole practitioners or in firms with less than 5 lawyers. For most articling students in the province the articling experience is a big firm Toronto experience. In 2008, the LSUC recommendations were overwhelming in favour of retaining articling as part of the licensing process, and focused on increasing the number of articling positions. They streamlined the process for articling principals, provided an articling registry, and conducted an articling survey. But despite all of this, not a single additional articling position was created.

André Bacchus, Director of Professional Development, Heenan Blaikie LLP, noted that a number of small practitioners are dying to have an articling student, but the applicants are reluctant to relocate to remote or rural locations where these practices are located.

Kim Brooks, Dean, Schulich School of Law, Dalhousie University, indicated that market conditions are poor in society, generally. Interpreting articling data should be done with careful consideration of the unemployment rates outside of law, and that many individuals without articling positions will still have meaningful contributions to society in other capacities with their legal education.

Lorne Sossin, Dean, Osgoode Hall Law School, stated that the law society has no ability to actually determine the type of training that occurs during articling. The wide variety of types of articling positions defies the ability to qualitatively assess whether articling is actually achieving its goals. There are real skills that are required for practice, which may or not be obtained through articling.

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  1. The post stated: Lorne Sossin, Dean, Osgoode Hall Law School, stated that the law society has no ability to actually determine the type of training that occurs during articling. The wide variety of types of articling positions defies the ability to qualitatively assess whether articling is actually achieving its goals. There are real skills that are required for practice, which may or not be obtained through articling.

    If there was a process in place such as submitting articling programs to the law society, also a mandatory follow up reporting to the law society from both the articling student and the firm (person actually training the student)… at various periods during articling… you could have a method to assess somewhat whether articling is actually achieving its goals.

    In my opinion… it would be a very important process to implement to ensure that student lawyers are being trained adequately before they are accepted as lawyers. Time to remedy any issues could be taken into account.

    Also the inspectors who investigate complaints from the public could also do random spot checks during articlings.

    I know this is an expensive, time consuming and administratively heavy process but we know that articling programs are a very important part of the process of becoming a lawyer, should we not make sure that they are being trained adequately.

  2. I don’t necessarily disagree. But increasing the reporting requirements of articling principals may discourage small/solo practitioners from stepping forward, thereby making the problem even worse.

    There are lots of issues around articling that need to be explored, and unfortunately I know of dozens of students who are just standing on by waiting for opportunities to emerge.

  3. Here is an idea:

    —eliminate the third year of law school and replace it with an articling term
    —have articling students pay that year’s tuition to the law society instead of the law schools
    —have the law society compensate lawyers for taking articling students
    —watch the number of articling positions explode

    Law students who do not want to be lawyers should be free to have a third year in law school.

  4. I would be interested to know whether any of the panelists raised the issue of access to justice. It now seems generally accepted that there is significant unmet need for legal services among low and middle class people. One of the main reasons these legal needs go unmet appears to be that private lawyers are unaffordable. And yet, outside the large and medium law firms, these same private lawyers apparently cannot themselves afford to offer as many articling positions as we have willing law grads. Meanwhile, the legal clinic system isn’t even funded sufficiently to have one articling position in every clinic and governments have generally failed to shoulder their fair share of the lawyer-training burden. So, no shortage of legal need and no shortage of willing hands — just not enough money in the system to bring them together. Which means the system needs repair. One place to start would be re-working articling in some way that would increase the availability of affordable legal help. In other words, giving access to justice a more prominent place in the future of articling in Ontario. Were there any signs of hope from the panel on this?

  5. Legal Aid was mentioned, and if I recall it comprised of only 1-2% of all articling positions in Ontario.

    I agree that potentially this could be an incredible way to both meet the demand for articling positions and serve the public interest. But it would still require substantial funding to pay for the student salaries and office space, and during a time of recession when these services are probably needed the most the case for allocating its funding will be that much more challenging.

  6. “André Bacchus, Director of Professional Development, Heenan Blaikie LLP, noted that a number of small practitioners are dying to have an articling student, but the applicants are reluctant to relocate to remote or rural locations where these practices are located.”

    Where are these positions and why hasn’t the LSUC posted them?

  7. Jane, I’ve heard this refrain numerous times anecdotally from career services personnel, law school administration, and practitioners generally.
    One very time-consuming suggestion is to just start looking up small and solo practitioners outside of the major urban centres.
    A more efficient route might be through the Ontario Bar Association, who has discussed creating a directory for this purpose for their members. I’m not sure of the status or use of this proposal, but it’s worth checking out.

  8. “Law is no longer a profession, it’s a business.”

    That’s the refrain heard repeatedly from visiting lawyers and judges at school these days. Profession implies there is some cohesion between the students, practicing lawyers, and the market place – an integration that enables the group to adjust and take care of its own. This is not the case in today’s reality, it seems.

    The business of law school these days is to generate operating revenues for their host universities by producing graduates who meet the minimum requirements to earn a JD/LLB/LLL. Whether graduates find articles or work is not their business – it’s the students’ issue. The business of law firms is to generate profits by providing value added legal services to clients. In times of economic uncertainty, they hire articling students and associates more cautiously. This disjunction is the why the growth in law school attendance has not correlated well with demand in the legal industry, both in Canada and, more so, in the USA.

    I think a key problem at the root of the articling crisis and ongoing access to justice concerns is that law school, as wonderful as it is (I loved it), simply does not adequately train students with skills that can be applied in a constructive way to benefit clients. That practical + experiential part has always been left to articling. Many students are starting to appreciate the acute nature of the articling shortage even before they graduate, and it’s a palpable cause for concern for their career prospects. When commercial forces reduce the supply of articling & 1A positions, it restricts the number of graduates who can practise law. This helps to keep the cost of legal services high and reduces the general public affordability of even basic or essential legal services.

    Also consider that the LSUC numbers noted above count only graduates who entered the process – the numbers are probably higher. Increasing numbers of students do not register for the licensing process because once you start any one part, you only have 3 years to finish it all, articling and bar ads. With the severe shortage of articling positions in Ontario, many are waiting until they secure articles before registering, lest they run out the clock. 3 years is not a long time anymore, especially if you have make-your-own or part-time articles.

    What to do? Well, either you cut back on law school admissions to reduce the students in the supply chain to correspond to reduced job positions in the market, and/or you have to reassess the nature of the market and retool the product to meet actual demand. Good luck with the former. Law still maintains enough social and professional cachet to make it attractive to students – it is still potentially lucrative, and it offers a meaningful avenue to serve public interests, fulfilling people’s intrinsic personal and professional aspirations. Law students are cash cows (and they know it) for universities that are still committed to constant growth as an indicator of success. Their business interests now trump broader professional interests.

    Just to put it out there – maybe a solution lies in the other option, one that requires a wholesale reassessment of lawyers’ roles and options in Canadian society. This means taking a more integrated approach and understanding what legal skills are needed in both the business and social marketplace, and putting more of those skills in the hands of graduates before they walk on stage and pick up their degree. It means reassessing articling as the principal method of teaching practical legal and business skills associated with actual law practise. I learned much from law school, but it was largely conceptual and abstract rules and principles. I have no clue how to actually do anything in real life – it has always been tradition that articling taught you practical skills. Shifting more of that practical training to the education portion of one’s legal career is the best way to develop utilitarian skills in a broader range of potential practitioners,
    rather than a privileged elite in each graduating class. Theory and principle are important, but meaningful law is applied law.

    It is potentially a strong win-win solution. Add a 4th practicum year to law school that focuses exclusively on practical skills courses, as well as co-op/intern placements with firms/legal departments/tribunals or courts. The universities get an extra year of fees, and the students add more practical knowledge to their education in a familiar academic structure – something more that enhances their ability to more readily find work in the profession. Most of them are already in debt up to their eyeballs, another year that gives them a headstart is at least more palatable: once you are in over your head, it doesn’t matter how deep the water is. It is quite one thing to learn civ pro, oral advocacy, noting up, and legal writing in a class room, but as articling students will testify, its a completely different thing in real practice. It requires law schools faculties and admins to listen to what the legal market demands – firms and the public – and
    craft courses and hire experienced and able profs to teach skills to meet those demands.

    This isn’t to replace articling, but rather to better prep students with baseline skills that they can more readily refine and apply so that articling is not as much of a burden on principals. It is more a way to revise the traditional roadmap of articling, improve students’ value-proposition, and reduce the aggregate ROI interval attached to students and new hires. This type of skills instruction seems more like college or technical training, but its something that is needed and useful: it is not below law students to learn these things. The basics of filing, document creation/review, things like preparing a motion and argument for motions court is something not all law students will get exposure to during school. Clue them in directly and earlier – too much of law school is learning by osmosis. Think about how legal issues and technology are changing and their near-future implications and the types of things new grads typically ought to be able to
    do for employers: discovery/e-discovery, planning and writing research memos and legal analysis, noting up case law, relevant note taking and client interview techniques/etiquette. These everyday core skills tend to get mentioned in law school, but actual training in the why and how its done is rare if non-existent. Front load more of the practical education. Give them more time to get more background and exposure to these topical basics so they have a running start when they sit down at the interview or walk in on their first day.

    Perhaps having more baseline practical skills could enable them to do more low level legal work earlier, resulting in their ability to handle more legal tasks at lower cost to a firm – lower costs for minor tasks is a key practical reality in access to justice discussions. It could mean that articling terms could be shortened and better distributed among increased graduates, or enable firms/agencies to supervise more articling students who are less maintenance. Firms want students with more abilities from day one – more familiarity with practice basics that are easier to hone and develop – let’s push-start more students to enter the profession at a higher level of proficiency and confidence.
    If they can enter practice with better skills, the burden of taking on articling students is reduced, which incentivizes creation of articling spots. Once they are done, they are better equipped to take on legal work – maybe not high end cases, but much of law is smaller practical issues that can be dealt with by newer lawyers. They are also more likely to have the knowledge and connections to know how and when to seek more experienced counsel and refer more complex cases up the food chain. More of the public get greater access to legal services.

    The existence of articling crisis in Ontario is not some kind of Jedi mind trick – it is a real and immediate issue created by a large-scale shift in the economics and globalization of the legal profession and schooling. It that requires real and immediate adaptation and solutions – and by immediate, I mean now, not 5-10 years and a dozen investigative committees later. One popular refrain is that more students going to law school don’t want to be lawyers – even if this is so, the majority of them still do, and the profession, if there is one, needs to take its cues from current business realities to ensure that those who need it can get the new level of baseline knowledge and skills they need in the 21st century. And even those who do not become lawyers should have taste of how law is done – the skill set is a constructive and informed experience. With 2 new Canadian schools coming online this year and next, and an economy that is still stalled,
    it’s going to get worse before it gets better. There is no try, do.

    PS: also on the point about “a number of small practitioners are dying to have an articling student, but the applicants are reluctant to relocate to remote or rural locations where these practices are located” – my sense from talking to the numerous students in my graduating class alone that are looking for articles, there are plenty of capable and eager graduates looking for articles that are open to such positions if they know about them. There has to be a better centralized way of posting them. Post it and they will come.

  9. Recent Grad,
    Thank you for your very well thought-out comments.
    In response to your addendum, I’ve tried to address this problem before. Only a very small handful of practitioners ever responded, which is why I recently removed the page for articling positions. It leads me to conclude that either the abundance of articling positions outside of the cities do not exist, or these practitioners do not know how to use the Internet to get the word out. Either way, it’s a bad situation.

  10. Kim Brooks: “many individuals without articling positions will still have meaningful contributions to society in other capacities with their legal education…”

    I’m sure if Kim was told this coming out of law school she would have been a little peeved. This is a Dean of a law school! Wake up! The vast majority of us go to law school to be lawyers. Otherwise we would pursue a more practical degree, such as an MBA.

    Learning to apply case law ratios to fact patterns has little utility outside of the legal profession. Sorry, that’s fact.

    Oh and I agree, 3rd year should be an articling year subsidized by tuition. However, how would the schools fund their fat budgets, building renovations and plum academic positions?