Articling and Access to Justice: An Ontario Legal Corps – Why Not?

We need to create an Ontario Legal Corps composed of lawyers and articling students to address the access to justice crisis in this province and we need to do it now. An Ontario Legal Corps will also go a long way to addressing the current deficit in available articling positions.

The articling crisis in Ontario is a supply-side program. It deals with the issue of the scarcity of supply of articling positions. As many judges and now the Governor General have reminded us, we have an Access to Justice crisis which is a demand side problem. The demand for legal services far outstrips the available supply as the Ontario Civil Legal Needs Project revealed.

Why not come up with solutions that attempt to match the two problems?

Clayton Ruby recently mooted the creative suggestion of paying a legal aid “articling student bonus” for legal aid work done by articling students. This is a great idea except that the prospect of any significant infusion of legal aid dollars coming from either level of government in the near future is remote. We need to keep working on governments but that is a long term strategy. In the short term, government is simply not the answer.

If we are to address the twin crises of articling and access to justice we must do so on our own. And it is in our collective interest as a profession to do so because as the Governor General warned us in August, if we fail to meet our obligations under the social contract “Society will change the social contract, and redefine professionalism for us. Regulation and change will be forced upon us—quite possibly in forms which diminish or remove our self-regulatory privilege.”

An Ontario Legal Corps – modeled along President John F. Kennedy’s Peace Corps - would provide legal services by lawyers and articling students to underserviced communities across Ontario. The idea of articling students providing legal services may be new to Ontario but it has recently been accepted by the Law Society of British Columbia.

It seems that lawyers in Ontario support articling in their rhetoric but not in their actions. In 2008, the Law Society of Upper Canada’s Licensing and Accreditation Task Force reported that that lawyers overwhelmingly wanted to retain articling. It also reported that there were only 1171 approved articling principals out of approximately 31,000 lawyers in private practice, government and corporate practice and other employment available to serve as articling principals. That is less than a 4% participation rate. The rest of the profession – including myself – is freeloading on the work of that 4% who are shouldering the burden of training the next generation of lawyers. If we believe in the need for practical training for new lawyers, we should all share in this responsibility.

Thus, out of necessity, the funding for an Ontario Legal Corps would come mostly from us, from lawyers. Under this proposal, each lawyer in Ontario would pay a $200 Access to Justice levy. With 40,000 lawyers, this will create 200 fully-funded Access to Justice Articling positions paying annual salaries of $40,000. In short, my idea is 200 articling positions for $200 per lawyer in Ontario. Or simply “200 for 200”. I think this is a fair price to pay to promote access to justice, train the next generation of lawyers and protect self-regulation.

The University of Ottawa proposed a similar idea in its submissions to the LSUC’s 2008 Licensing and Accreditation Taskforce as one of its nine suggestions that it made to that Task Force. It proposed instituting a “lawyer levy” that the LSUC would impose on the 30,000 lawyers who do not employ articling students in any given year contributed $100 each year, the LSUC could provide two hundred articling subsidies in the amount of $15,000 in any given year. Subsidies could be focused on both geographical and cultural areas that are currently underrepresented by lawyers. That suggestion was not given serious consideration at the time. It should be now.

But that 2008 proposal did not go far enough. The access to justice crisis worsens and we are back looking at articling only three years later because we need bold solutions. An Ontario Legal Corps is worth considering.

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Comments

  1. The best way to solve a problem of scarce supply is to remove arbitrary barriers to entry – eliminate the articling requirement.

  2. I think it is important not to conflate the inadequacy of articling in preparing law sutdents for practice and inadequacy of access to justice resulting from lack of legal aid funding.

    Legal aid files are not neccessarily simple files that can be handled by junior counsel. The Air India defense was largely financed by public funds and it was anything but a simple file. For matters that can and should be funded from the public purse, there need to be adequate resources to prepare and present the case. Legal aid books cannot be balanced on the backs of newly called lawyers.

    On the issue of articling, I agree in part with Padraic’s suggestion of eliminating the formal articling requirement. If we do that then the practical experience has to come from some other source (possibly internships or structured mentorships arranged and supervised by law society practice advisors or by university clinics or co-op terms or all of the above).

    We have graduated licensing for new drivers. We have residencies for new doctors. Why do we not have something similar for new lawyers?

    On a related note: The other up side for medical students is that during their residencies they start earning some income before they leave their teaching hospitals (eductional institutions). That means their student loans are not yet repayable (although do they cease to qualify for more loans). Speaking as someone who had to make car payments (vehicle ownership was a condition of my employment) and who earned $17 too much each month in her articling year to qualify for interest-free status on seven years of student loans, it would have been helpful to still qualify as a student for that year.

    I cannot imagine how those students were living that had to volunteer for articles in Vancouver and then being restricted by the LSBC from holding other jobs during their articling years had to shop at the food bank to keep body and soul together.

  3. I like this idea. It creates a channel between unemployed licensing candidates and the citizens who need but cannot afford their services, and it does so without depending on government money which won’t materialize.

    However $200 per lawyer is a “flat tax” and therefore somewhat regressive. Different lawyers have very different abilities to pay. A legal aid practitioner, especially one who already serves as an articling principal, will understandably bridle when asked to pay the $200. I think the levy should be proportional to each lawyer’s ability to pay, although I recognize that this increases the complexity.

    Padraic’s idea should be seriously considered before we introduce costly new programs. In fact every hurdle which prevents supply from meeting demand in the legal services marketplace should be scrutinized to see which ones are really necessary in order to protect consumers. The scrutiny should be applied to law school and the bar exams, as well as all of the regulatory restrictions on legal services (e.g. publicly traded corporations can’t sell legal services, paralegals cannot offer most services independently).

    A lawyer can article in a transactional Bay Street practice, and that is considered sufficient and necessary practical experience to conduct a criminal defense practice in Northern Ontario. Why? The articling in that case has basically zero relevance to the type of practice which is subsequently permitted. If the articling requirement is keeping new lawyers from serving the clients who desperately need them, we had better be sure that it consistently serves its intended function.

  4. Further to Noel’s contribution, practice advisors employed by the LSBC are the best kind of just-in-time mentorship that money can buy. The guidance and information is both current and relevant and it sticks in the mind better than batch processing in a bar course setting (or even in a class room).

    There used to be a grand tradition of firms allowing the senior partner to take a draw that was not based in billings and dedicate himself to mentoring incoming students to develop the next generation of lawyers. More and more the senior partners are now paid on their billings and mentorship is delegated to unwilling junior partners (who are also paid on billings). The net result is that mentorship is not happening.

    If we want mentorship back in our profession it has to be done by someone experienced who is dedicated to that task.

  5. I think this article is framed incorrectly. If the LSUC (and as an extension Ontario lawyers) have repeatedly decide to maintain the articling requirement, then this should be the price that lawyers need to pay.

  6. This is an innovative idea, and which I support (subject to the regressiveness point noted above), but I submit that if the best solution the profession can come up with to the problem of access to justice is to effectively say “here, work with a bunch of people who have no experience”, then our general (lack of) standing in the eyes of the public is richly deserved.

  7. I have to ask – what will become of the 200 after their call to the bar? Who will employ them? If supply exceeds demand at graduation, is that likely to have been resolved in the subsequent year? I doubt it.

    Who will supervise and mentor these 200 articling students? What is the source of funding to pay for the supervisors? This will certainly increase costs, and significantly if an appropriate level of supervision is to be provided.

    Is the outcome of this 200 for 200 proposal that one year later, 200 newly called lawyers will have to hang up their own shingles with only a single year of experience and not a lot of mentoring? That doesn’t bode well for their careers, and I’ll bet the insurers won’t be too enthusiastic about that prospect.

  8. @Karen Dyck

    Lawyers are trained to practice law not to teach the practice of law. And judging by how mentorship has largely disappeared over the last 15 years, lawyers may not be the best qualified to supervise the training of other lawyers. It may be that universities need to fill the gap.

  9. Dear Sir: For once an idea to solve the access to justice problem from a senior member of the profession that makes sense and is ethical at the same time. I have to admit that i was reading through this and thinking very skeptically that your solution would involve asking a bunch of debt strapped new lawyers to work for free. Much to my happy surprise, you suggest nothing of the sort, instead arguing to “create 200 fully-funded Access to Justice Articling positions paying annual salaries of $40,000.” Thank you for this refreshingly conscientious idea. I salute you.

  10. I think the idea of forgiving student loans for law students who practice in under-serviced areas/communities is another idea that needs to be considered.

    Too many recent law graduates are flocking to high paying jobs on Bay street because they are unable to deal with the massive debt load from law school. The medical profession in conjunction with the government already employed a similar program for recent medical graduates. Why not the legal profession?

  11. @Mina:
    “We have graduated licensing for new drivers. We have residencies for new doctors. Why do we not have something similar for new lawyers?” 2 things: 1. We do have something similar – it’s called articling. But then you suggest that we should abolish articling, and instead have the students do internships and co-ops, which i’m guessing wouldn’t be paid. Seriously? How long do you think a person should have to wait before they can draw a salary from their education? You’re saying a year of articling isn’t enough, which suggests that in your world it would be over eight years (9 or 10 – maybe more) before someone could get paid. Why don’t you write in to the banks with your proposal? I’m sure they’d love to hear from you. 2. The other difference is that licensing is graduated primarily to deal with the fact that people as young as 15 can drive. Certainly there are differences between 15 year olds and those in their late 20′s in terms of maturity and needs. Not to mention that just because we have graduated licensing doesn’t make it a good thing. To me, having to wait 5 years to drive is a bit much. But then again I also think 20K a year in law school tuition is a bit much.

    @The Truth: I agree and would take it one step further: let’s reduce tuition back down to the equivalent of what it was in the 1970′s. It’s totally insane that people go 100K in debt for a law school education, and the legal educators and governments sit back and pretend that they have no obligations, moral or otherwise, to these young lawyers. It makes me sick.

    And finally, overall, I have to say that it really pisses me off when presumably older members of the profession argue for stricter restrictions on new lawyers than they faced as newbies to the profession. For example, in my area the senior lawyers tend to go on about how young lawyers shouldn’t do duty counsel, how the current experience requirement is inadequate. Ask most of them how much experience was required when they started and they’ll almost always answer none. Of course, just because the rule was one way when they were young doesn’t mean it was a good rule, maybe some experience requirement does make sense. Hindsight is 50/50, as the saying goes (I’m being sarcastic here). What seems especially slimy to me is that these older lawyers can financially benefit from the flooding market and invoking fears in new lawyers by taking 60% of a new lawyer’s billings. I’ve been offered those kinds of jobs, you know, where i give the firm 60% of my billings, but still have to find my own clients, with the understanding that any mentorship will be very limited as the seniors are very busy. It’s total BS. I’m off on my own, doing exactly what these senior members did when they graduated a few decades ago. It seems that hypocrisy abounds, and the best that we new folks can hope for is that the senior members somehow have a mass epiphany, or simply wait them out, I guess.

  12. @LSFFP

    I never suggested 8-10 year of unpaid labour. I am curious to know where you read that.

    What I did suggest is that law students be practice-ready (for a basic practice) when they leave law school so they are not dependant on non-existent mentorships to eventually earn a living. Things like trust accounting and law office management could be taught more easily (and more consistently) in law school than during articling. Similar subjects are taught by business colleges all the time (and hardly ever taught by articling principals). It is also easier for law schools to stay current on such things as the privacy considerations of cloud-based office systems than for every potential principal across the country to do so.

    And if we all start out as general practitioners then there needs to be a way for that that choose to specialize to be recognised as having done so. We do not all need to start out as specialised in everything the first day of practice. And there is no reason that our licensing needs to be binary.