The Future of Articling – in Canada

There have already been several posts on Slaw and elsewhere about the current articling debate in Ontario.

As one of the invited moderators of the debate I have been actively involved in reflecting and commenting on the issues, and I’m quickly coming to the conclusion that this could be the start of changes across Canada. A recent article in The Lawyers Weekly noted that even though Manitoba graduates currently can find articling positions, the situation there may drastically change because of what is going on in Ontario.

Where We Are Right Now

During October Convocation a number of legal organizations expressed misgivings about the amount of time between the release of the final report and the debate. In true lawyerly style, a debate then proceeded over whether the debate should even occur.

The decision was that the debate should commence, but that the vote should be delayed to Convocation on November 22, 2012 to give people more time to read the report. Of course the debate could not have concluded in October, so November Convocation will contain the continued debate and the vote.

But November Convocation has to address the budget, which might mean in a worst-case scenario that the debate and vote carry on into a special sitting of December Convocation. Let’s not hope it gets pushed even further into 2013.

Canvassing the Views

To recap, here are some of the posts and articles by some of the other panelists:

  • Garry Wise links to all the background material. He notes that the “debate” has actually resulted in a lot of finger-pointing to cast blame. He also questions whether there’s a “crisis” at all, rejects both the majority and minority proposals, and prefers that the current system is improved.
  • Lee Akazaki indicates that quality of articles is not the issue, because lawyers are only supposed to practice in areas they are competent to do so.
  • Mitch Kowalski suggests it could be the end of law schools, and a shift away from barristers and solicitors towards Chartered Legal Executives.
  • Doug Ferguson agreed last year that law schools could see major changes. He doesn’t see articling being abolished immediately, and focuses on the Carnegie model of legal education (detailed in the report at paras. 116-120)
  • Catherine McKenna also noted last year that the current system is unfair, and a practical training course for all (what became the minority view) is preferable.
  • Antonin Pribetic says that the law society’s inability to resolve this issue properly threatens our ability to self-regulate.
  • Jasminka Kalajdzic has made representations through the University of Windsor which question whether swift action is required and call for a principled approach which takes access to justice into account. Windsor Law has also stated that the consultation failed to examine what law schools are already doing to develop transitional training as part of their existing curriculum.

Dean Sossin of Osgoode (not a moderator), would probably question the premise that it signifies the end of law schools. He doesn’t comment on this but does weigh the pros/cons here of each proposal, and indicates this is a national issue, citing a statement by the Canadian Council of Law Deans. He has also rebuffed some of the criticisms directed against law schools, saying that seat increases have matched population growth.

Tom Conway, Treasurer of the Law Society, did a short blog post about October Convocation here.

My posts on the subject include:

The views expressed by the panelists are as diverse and contradictory as the views expressed by the bar itself. In my last post on this subject I commend the law society for the extensive consultation and engagement that they’ve engaged in through this process.

I pointed out repeatedly that the students who are being affected by articling decisions did not elect the benchers and did not have representation on the moderating panel. The law society has bravely responded to this by inviting Eric Vallillee to join the fray. He expresses concerns with the majority’s position, but hasn’t really revealed much more about that yet.

What the Past Month Has Accomplished

Despite the extensive consultation already undertaken, the additional month provided stakeholders further time to read and consider the detailed report and the majority and minority decisions.

The past month allowed legal organizations, lawyers and law students to provide additional commentary, which is summarized by the law society here.

I don’t see anything particularly unique about these comments, which largely mirror similar sentiments expressed during the consultation period. The only difference here is that they are now framing these concerns and views in context of the majority and minority opinions.

I feel the need to point out that the original report by the Task Force was expected in May 2012, but given the enormous resistance from the bar over every proposed option it was pushed until October. This follows a previous consultation which concluded in 2008 that concluded, erroneously, that the bar would be responsible for fixing the problem if one truly existed.

The report notes at para. 25 that the 2008 the Licensing & Accreditation Task Force surveyed over 94% of the law firms in Ontario, but were unable to create a single additional articling position through this process.

What Everyone Seems to Forget

It’s not a “gap issue.”

Most of the debate seems to center around why there is a shortage of articling positions, and how to best resolve it. This is just one element of the terms of reference set out in June 2011 (as amended in September 2011).

What this Task Force was supposed to examine was whether articling was a valid regulatory barrier for entry to practice. Keep in mind that articling is not supposed to assist law firms with recruitment or help young lawyers get jobs.

The purpose is directly related to the function of the law society under the Law Society Act, to protect the public interest and advance access to justice (see minority view, para. 204). The qualifications for licensing under the Act are entirely different and separate from the professional competence provisions.

When a qualification for licensing requires employment with a law firm (understanding of course there are other articling positions in the public sector, etc.), then the nature of that employment within firms should be subject to direct scrutiny.

Option 2 of the December 2011 Consultation Report was maintaining the status quo with qualitative improvements. The majority note at para. 25 that there is broad support for improving the articling experience. It would be misleading to conclude that these improvements exclusively relate to the breadth of substantive legal exposure, or amount of mentoring within the articling process.

There is absolutely no tracking of the demands placed on articling students (minority view, para. 204).

Ontario’s Employment Standards Act provides exemptions for students in enumerated professions under s. 2.(1)(e) of O. Reg. 285/01 (as amended) for working hours, overtime pay, minimum wage, and holidays. With the legal market the way it is, it probably isn’t surprising that there are articling students working below minimum wage, when prorated for hours/week (some are so desperate as to work for free; para. 64).

The bigger challenge is the impact on equity-seeking groups, who still don’t seem to have a significant voice in this debate. The inequities are not limited to securing positions, but also extend into the forms of harassment which are clearly within the realms of violation of human rights legislation.

Law students are not particularly thought of as a vulnerable population, but the power imbalances in the legal profession are markedly different than others listed under the ESA regs. You only need to look at one of the many “scandals” asserting abuse against partners, and the ensuing backlash by the firm and the profession, to understand why abuses can and do occur. For the law firms, any form of conflict results in conclusions that they shouldn’t be hiring in the future (or perhaps for some, that they shouldn’t be hiring from certain equity-seeking groups).

Although articling does not create the inequities, mandating it as the sole route to licensing ensures that the law society is directly responsible for the inequities that do occur (para. 89). Unfortunately, the co-op placements required in the majority’s Law Practice Program (LPP) will not resolve this problem, and some of the largest firms have already indicated they are not keen to cooperate with the co-ops.

Where Do We Go From Here?

One of the other principles under the Law Society Act is that it operate in a timely, open, and efficient manner. Although the transparency of the process has been admirable, it has hardly been timely or efficient if we include the previous task force on this subject.

I do not believe this is due to any fault of the law society or the benchers. They are dealing with the most contentious and divisive issues in the legal profession of our generation.

As elected representatives they deal with a constituency who has significant financial incentives to retain (and sometimes “abuse”) the current articling system as a means of cheap labour and recruitment/advancement through attrition. The task force has been rebuffed numerous times throughout this process that “kids” (the terminology often used) are too “spoiled” these days.

Justifying articling simply because it’s the process that all of us endured is not-evidence based and is illogical, and is a strange form of argument for a profession populated by advocates. The task force itself acknowledges that we do not have the evidence to make proper decisions.

Part of the proposed pilot project include quantitative (paras. 170-172) and qualitative (paras. 173-175) monitoring, which should help collect the appropriate evidence. Interpretation of quantitative information, especially as it relates to equity-seeking groups, should keep in mind the subtle and insidious manner in which discrimination occurs (See, for example, Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.); Raheja v. Newfoundland (Human Rights Commission) (1997) at para 32).

The majority and minority proposals are not just imperfect, they are deeply flawed. Unfortunately we are simply out of time, and delaying this issue further is irresponsible. After the pilot is concluded we can reassess how we move forward as a profession, utilizing the information collected in the interim. I expect this data will be closely reviewed by law societies across Canada in determining what comes next.

The minority’s view has not been tabled as a motion. I do not consider this to be an “effective” means in which to advance their critiques of the majority’s view, especially since we’ve had a month’s delay to extend the debate.

The time has come for change, and the majority motion is the only option available.

Unless, of course, we end up deferring the vote to December.

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Comments

  1. Jasminka Kalajdzic

    Thanks for posting links to various submissions.

    You are right that there is a spectrum of views between the panelists, reflective of a similar array of opinions among lawyers and other commentators. What few have focussed upon is, for me, the most important question of all: what are the objectives of any pre-licensing program, be it traditional articles or a third-party LPP? Neither the Consultation Report nor the Final Report addresses with precision the particular skills and competencies that must be mastered by a graduate before being licensed.

    It is not enough to refer to the “Articling Goals and Objectives” that for years have been provided by the LSUC to articling principals, which have never been tested or assessed. Many licensed lawyers practising today did not master (or were even exposed to) the lengthy list of learning objectives contained in this document. Judicial clerkships could not possibly cover all objectives, nor could articles in a specialized firm. Some say students should be ‘practice-ready’ when they are called to the bar. This, of course, begs the question: ready for what kind of practice?

    Until we know what is expected in terms of outcomes, it is very difficult to have a clear discussion about the merits of any vehicle that purports to generate them. Lawyers, law teachers and the LSUC ought to be having this fundamental conversation. Indeed, it should have taken place long before the upcoming vote.

  2. Jonathan Westphal

    While a discussion of the utility of the articling process as presently constituted is welcome and overdue, should we not also be having a discussion on whether the real problem is in fact a shortage of articling positions, or whether law schools are simply producing more lawyers than the market can readily absorb? Considering the debt many students take on to fund their legal education, it seems to me we are doing a disservice to them when we increase enrollment when we know there is already a minority who will likely be unable to pursue a career in the law. A look at the awful employment outcomes for law graduates in the US shows what happens when law schools increase enrollment without reference to current market conditions.

  3. Jonathan,

    The supply/demand issue around articling is being debated extensively, as Garry Wise points out. It was also the focus of the 2008 Task Force.

    My points here are simply that there are broader issues not receiving the proper attention, and that this issue has been on hold for far too long.

    The debate goes down tomorrow. I hope to see all of you participating.

  4. I read with interest the Globe and Mail article on November 24th.

    I expect a similar motion will eventually come forward in British Columbia where I live and work. The problem is that there are too many lawyers and too many law school graduates entering an over-saturated and depressed market. I do not think the decision taken in Ontario will address that problem.

  5. Has anybody got the actual stats for lawyers in and lawyers out? You get the impression from some commentary that the bucket’s been full for a long time and is just flooding over in waves each year. Yet there will be a point at which things stabalize, I should think: where deaths and resignations = new calls. That point may already have been reached, but until there are data, we can’t really know.

    (All this, of course, without picking up on the implicit criticism of the free market. Egg marketing board (or wheat board, or milk board) bad :: controlled entry to profession good. )

  6. LSUC’s LPP Request for Proposals is now out: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147491646

    I think LSUC is to be commended for introducing the LPP option, which lowers a significant and arbitrary barrier to entry. However there seem to be many devils in the details of this RFP.

    First, it says that the LPP work placements can be either paid or unpaid. It doesn’t clearly rule out reverse paid internships, in which the candidate pays the placement provider. This has already started to happen in entry-level law jobs Stateside: http://abovethelaw.com/2013/01/are-you-desperate-enough-to-pay-for-legal-experience/. As Omar points out above, there are similar phenomena developing here.

    An aspiring Bay Streeter participating in the LPP might well be prepared to pay for a placement which she thinks will get her closer to her goal, if the alternative is a low-paid or unpaid placement in family law, or in criminal law, or in Sudbury. On the other hand, many people consider reverse-paid internships to be inherently exploitative: e.g. Toronto law blogger Andrew Langille (http://www.youthandwork.ca/2012/12/the-year-in-review.html). Has LSUC decided whether they will accept reverse paid internships?

    Second, who will pay for this program? The RFP says that “the costs of the LPP will form a part of the overall licensing fee in the Society’s licensing process.” Does this mean that LSUC will not be subsidizing it at all? They have also said that the cost will be “equalized among all licensing candidates” (http://www.lawsocietygazette.ca/news/articling-debate-new-licensing-programs-approved/.) That must mean that those who find articling jobs will have to chip in for those who don’t, and end up in the LPP. I wonder how articling students will feel about paying for a program which they aren’t using. Perhaps some will consider this fee a welcome opportunity to support their classmates and support access to justice. Others, however, may feel that they won their articling jobs through their own hard work and great marks, and shouldn’t have to subsidize those who didn’t.

    Third, LSUC is trying to use what is essentially an educational and licensing process to pursue access to justice goals. This at least is how I interpret the expectation that the providers line up work placements in underserved practice areas and communities. It’s a nice thought, but the problem is that LPP participants won’t necessarily be any more interested in serving those practice areas and communities than existing lawyers are. If it’s true that all or most of the LPP cost will be borne by the licensing candidates, and not by LSUC, then the candidates may eventually be heard to grumble. They may ask: “if facilitating access to justice is a duty for the entire Ontario legal profession, then why are we the only ones being asked to make a sacrifice in order to further it? Considering that we are more vulnerable and less wealthy than most Ontario lawyers, shouldn’t it be the other way around? Given that we have to pay for this program, shouldn’t it be designed to meet our own needs and interests?”