May the (Task) Force Be With Us!

We have been quick to use the word “crisis” to describe the state of articling in Ontario. Maybe too quick. Certainly the rather abrupt rise in the rate of “unplaced lawyer candidates” – students unable to find articling positions – from 5.8% in 2008 to 12.1% in 2011 is an eye-popper and potentially a game changer. But a crisis, as the Globe and Mail reports today? Maybe.

Those that work in the legal trenches have known for years that another crisis exists – the access to justice crisis – now well documented by the Ontario Civil Legal Needs Project in its 2010 report Listening to Ontarians.

The Law Society of Upper Canada’s creation of an Articling Task Force presents an opportunity to shine attention and hopefully address ‘the other crisis’ of access to justice. At least this is the thought of a group of us at the University of Ottawa’s Faculty of Law, Common Law Section. The Faculty of Law at the University of Ottawa is hosting a series of lectures and workshops on the Legal Profession and Access to Justice. The series is a joint initiative of the Social Justice Caucus and the Professionalism Initiative, funded in part through the support of the Law Foundation of Ontario.

Last week’s session was provocatively titled “May the (Task) Force Be With Us” and featured a pre-Halloween Star Wars theme. The subtitle more directly described the substance of this workshop: “Access to Justice and Articling: Information, Issues and Ideas for the LSUC Articling Task Force”. A podcast of the session is available here. Moderated by uOttawa Prof. Suzanne Bouclin, this workshop brought together faculty, student services and students to brainstorm about solutions to “the real crisis” – access to justice, in the context of the current Task Force on Articling.

Professor David Wiseman set the table with a quick “articling stats for dummies” (my term not his) update based on the information contained in the Law Society’s May 2011 Report. He compared this data with information on Ontarian’s unmet civil legal needs from the Report of the Ontario Civil Legal Needs Project. Wiseman’s simple but powerful point was that there simply are not enough articling positions with lawyers who service the legal needs of low and middle-income Ontarians: sole practitioners, small firms and legal clinics. U of Ottawa Professional Development Counsellor Chelsea Paradis reinforced this point by explaining where uOttawa graduates obtain articles, mostly in the private sector. In this uOttawa is likely representative of other Ontario law schools. Paradis sounded a cause for concern that equality seeking groups are overrepresented among those law students who can’t find articles. This should be a serious cause for concern in the profession.

Mikaila Greene, a third year J.D. student, spoke passionately about her own experience as a law student deeply committed to social justice who has struggled to find employment in the field and meanwhile has incurred substantial debt through her schooling. She talked about the difficulty of finding a job in social justice and shared her elation in obtaining a dream job only to be confronted with the personal crisis of whether to follow her dream (plus paying for her own Bar Ads and health benefits) or pay off her debt. Her colleague, second year JD student, Ziad Yehia, expressed frustration with the lack of debt relief available to uOttawa students, especially compared to programs at American schools and at the University of Toronto’s Faculty of Law. Yehia situated this problem in relation to the broader need to make articling with small firms and sole practitioners more economically feasible for both law grads and would-be principals.

Experienced law teacher and administrator Chantal Morton made the case for the importance of practical legal training. However, she encouraged the Task Force to consider possibilities beyond our general approach to articling. Morton pointed to Australia’s Leo Cussen Institute as a potential model. Leo Cussen offers students who do not article a practical training course that gives them the opportunity to interview “clients”, open and manage mock trust accounts, prepare documents for trial and work with a registrar, and gain experience through rotations in various practice areas (litigation and corporate). This all occurs with ongoing feedback from trusted and trained faculty/practitioners over months of daily training. More of Chantal’s thoughts can be found here. For his part, Wiseman proposed a civil law ‘mega-clinic’ with articling students as supervised frontline legal information and service providers, possibly integrated into a part-time third year of law school.

Last week’s forum was only the first of several at the University of Ottawa to debate the twin ‘crises’ of articling and access to justice. Law Society Regional Bencher and Task Force Member Adriana Doyle was in attendance and offered strong encouragement on the need for collaboration between the academy and the bar on these issues. It was great to hear that the Task Force has already started to consider many of the ideas raised in this forum and will begin consultations in the new year with its report due to the Law Society of Upper Canada in June 2012. The Task Force presented an interim report on its activities to Convocation on October 27, 2011.

It is heartening to see that the interim report noted that “The problem of unplaced candidates cannot be dismissed as ‘the market weeding out weak candidates.’” I am also glad to see that the Task Force recognized the inconsistency in the profession’s commitment to articling in principle but not in practice: “Although the profession appears to hold a very strong philosophical attachment to articling, this has not translated to date into additional lawyers or firms being willing or able to offer articling placements.” It is this inconsistency which led me to propose the creation of an Ontario Legal Corps of articling students funded by a levy on all lawyers in Ontario.

It is disappointing that neither the interim report nor the terms of reference of the Task Force make mention of the Law Society’s statutory duty under the Law Society Act “to facilitate access to justice for the people of Ontario” (s. 4.2(2)).

At the end of the day, it will be a hollow victory if we “solve” the articling crisis but fail to make any strides on the access to justice front. The Law Society and the legal profession – in Ontario and in Canada – will be judged not by its ability to provide jobs for aspiring lawyers but by its ability to provide legal services for Canadians who need them.

 

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