Articling in Ontario – Two Routes to Practice

The Articling Task Force reported this morning.

The Executive Summary reads:

The Articling Task Force
The Articling Task Force was established in May 2011 as a result of the rising number of unplaced articling candidates seeking access to the licensing process in Ontario. Although this trend was the impetus for Convocation’s decision to establish the Task Force, it was given a broad mandate to consider the competence-related goals that articling is intended to address, its effectiveness, its place in the licensing process and additional or alternative approaches to fulfilling transitional training requirements.
Since 2008, when the lawyer licensing process and transitional training were last examined, the number of unplaced articling candidates has continued to rise. The Task Force concludes that for the foreseeable future, the articling program as currently structured will be unable to meet the ever-increasing demand for article placements.
The issues raised by the current system do not lend themselves to easy answers. The Task Force has devoted over a year to its in-depth review of the many subjects that fall under its mandate. It undertook a broad-reaching consultation process, including dozens of consultation sessions for the profession and law schools, which were conducted at numerous locations throughout Ontario.
The Task Force received 125 public submissions from individuals, legal organizations, law schools, law students, the judiciary and law societies. The depth and thoughtfulness of the discussion and submissions were remarkable and provided important input to the Task Force’s work. The Task Force also considered the licensing regimes in a number of other jurisdictions, some of which have implemented legal skills-training programs to satisfy transitional training requirements. It also sought input from the Federation of Law Societies of Canada (“the Federation”).
After extensive consideration of the issues raised by the current licensing system, the Task Force is unanimous in concluding that the system requires change.
Pathways to Licensing
The majority of the Task Force recommends that Convocation approve a pilot project that will allow articling and a new Law Practice Program (LPP) to operate side by side for five years.
While articling would continue to be the route through which most candidates become licensed, the LPP, which would include both a skills-training program and a co-operative work placement, would provide an alternative path to licensing.
Providing these two pathways to licensing would directly address the issue of access to the licensing process in an environment where there are insufficient articling positions. Doing so in a pilot project provides a measured, incremental way to move forward with a comparison of these alternatives routes to licensing while protecting the public through a competence-based evaluation system for all candidates. This approach also enables the Law Society to take into account the Federation’s ongoing National Admissions Standards Project, recognizing the potential impact of that Project on the licensing process.
Four members of the Task Force take a different view. They have concluded that articling can no longer be justified from a regulatory standpoint and should be abolished. Further, they object to a two-track process and prefer to adopt a single path to licensing applicable to all candidates. Their proposal is to have a comprehensive transitional pre-licensing program lasting two to three
months that includes on-line learning and exams assessing core competencies in legal knowledge and skills, business, professionalism and ethics. For new licensees who choose to practise on their own, they propose mentoring and increased supervision and scrutiny to assist those in their first few years of practice, to ensure public protection.
The Recommended Pilot Project
The majority of the Task Force recommends a five-year transitional training pilot project with the following main elements:

The pilot project would begin in the 2014-15 licensing year.
The current 10-month articling program would continue, with additional measures designed to enhance regulatory oversight and provide a more systematic evaluation of articling as transitional training.
The LPP would be developed and offered as an alternative path to licensing for the fiveyear period.
A culminating final assessment would be introduced to ensure that each candidate, whether the candidate articled or took the LPP, has successfully completed the required transition to practice competencies before being licensed.
The two paths to licensing would be monitored, assessed and compared, with a final report to Convocation on the pilot project due by the end of the fifth year.

The LPP would be delivered through a third-party provider or providers. It is an innovative step, best undertaken by those whose primary expertise is in the development and delivery of professional experiential programs, adult learning and use of technology in advanced education.
A Request for Proposals would be issued by the Law Society, which would mandate the practice skills, professionalism and other competencies to be mastered in the LPP. Although the pilot project incorporates flexibility to refine the precise structure of the LPP as the pilot unfolds, it is currently expected that the LPP would be about eight months long, divided between course work and a co-op work placement.
One of the goals of the co-op work placement program would be to provide the co-op placements in areas where access to justice needs can also be served. This would include, for example, sole and small law firms providing services in areas such as family law and criminal law, and not-forprofit legal organizations that provide access to justice. Third party providers would be encouraged to seek out paid co-op placements wherever possible; however, it is not practical to require them to guarantee paid placements. Work placements embedded in educational training programs are often unpaid. With respect to the additional costs of the LPP, it is recommended that those costs be equalized across all candidates, not imposed only on those candidates taking the LPP.
Candidates in both streams would be required to successfully complete a uniform final assessment of transition to practice skills, as a prerequisite to licensing. To ensure that the most appropriate and cost-effective assessment process is used, the process will be developed and proposed to Convocation for its approval in the period leading up to the implementation of the pilot project.
The pilot project will provide not only enhanced access to the licensing process but also a wealth of information. This information will be analyzed and used not only to compare the two methods of transitional training, but also to continue to address a wide range of issues that arose during the consultation process, such as the challenges confronted by equality-seeking groups. The Task Force received numerous submissions from equality-seeking groups, nearly all of which rejected the status quo out of concern that it fails to solve the articling placement shortages that are believed to disproportionately affect these groups.
As an interim measure, a transitional provision is recommended for those who have already entered into the licensing process. Candidates who entered into the licensing process in the 2012- 2013 licensing year, but who are unable to find an articling placement within the three-year period provided to complete all components of the licensing process, would be permitted to maintain their status as a licensing candidate until such time as they can enter and complete the LPP and all other aspects of the licensing process, on condition that each candidate must register and complete the LPP at the first available offering.
The recommended pilot project is intended to measure competence through a fair process that provides access to the profession, fosters access to justice and does so while protecting the public interest.
Minority View
The four members of the Task Force in the minority suggest a different approach. They call for the end of articling and oppose what they see as a two-tier licensing process proposed by the majority that they believe will be unfair and unworkable. They are concerned that the pilot project simply puts off needed change to licensing and legal education, and propose one track to licensing, applicable to all. The minority therefore proposes a comprehensive transitional prelicensing program, two to three months long, with objective, measurable standards that assess substantive legal knowledge and business, professional and ethical issues. They note that the
Law Society has numerous examples of past admission programs and evaluations that they believe could be readily adapted and provided online. Post-call, the minority suggests that new lawyers who choose to practise on their own are assisted in their first years through mentoring and other regulatory oversight, in order to ensure public protection.
Conclusion
The majority of the Task Force believes that its two-pronged pilot project affords the best opportunity to change and improve the licensing process in a fair and measured way, while meeting the Law Society’s key objective of ensuring entry-level competence. It builds on the experience of lawyers in Ontario who, based on their own observations as students, principals and employers, are confident that articling is an effective transitional training program. It provides for enhanced regulatory oversight of the articling process and introduces the ability to assess articling in a more systematic way. And, finally, this approach moves forward to assess
innovative practices from jurisdictions that have introduced law practice programs. In doing so, the pilot project will enhance access to the licensing process, while ensuring the competence of those who seek admission to the legal profession, which must be the Law Society’s primary goal for its licensing process.

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Comments

  1. The Law Society of Upper Canada is embracing Web 2.0 in its debate on this report.

    The future of articling in Ontario will be debated
    at LSUC Convocation on October 25, 2012, beginning at 9:30am.

    The Law Society of Upper Canada will show the articling debate via a public webcast, and will simultaneously host an online discussion on the Articling Task Force Report featuring journalists, lawyers and members of the public.

    You can be part of the articling discussion live on a special event page or on Twitter.

    [Unhappily, I'll be in the air at that time, but I hope the Slaw community will tweet along].