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The Ethics of Articling

It has long been an open secret that our articling system is deeply flawed. But is it unethical?

Articling today is a system that would be equally at home in Downton Abbey and in Booker Prize Winner Hillary Mantel’s Wolf Hall.

While I don’t think articling is inherently unethical, I do believe that it is inherently unequal and therefore creates an environment where unethical behavior is possible. Articling takes a vulnerable and powerless law student who is often carrying a significant financial debt and requires her to be at the beck and call of an experienced lawyer with largely no oversight. Desperate students will do almost anything to obtain articles and they will put up with almost anything to fulfill their articles. Some students even article for free, a possibility that exists only because articling is exempt from general wage and hour legislation that protects most employees.

It is important to identify and separate at least three possible ethical concerns about articling (with thanks to Alice Woolley): (1) the possibility for harassment and discrimination during articling; (2) the lack of quality control over what actually goes on in articling; and (3) the systemic inequalities created by the articling system, i.e. poor working conditions, long hours and low wages (for some). To some degree, these three concerns are interrelated, as I have come to discover recently.

As a teacher of legal ethics, I have become somewhat of a magnet for students with ethical issues. Over the past six months, I have had a number of my former students approach me for advice about how to deal with their “toxic” articling work environment.

One of these students is “Kate” (not her real name). Kate was one of the best students that I have ever taught. She was a Professor’s dream: smart, engaged and enthusiastic. Kate had a passion for the law and for her studies and her enthusiasm was infectious. Awards piled up for Kate and she graduated in the top of her class. I wrote letters of recommendation for Kate with the greatest of pleasure. When it came to articling, Kate was fortunate to have her choice of several firms. To say that we need more students and more lawyers like Kate is an understatement. But I fear that we in the legal profession are going to lose Kate and others like her because of the experience that she is having articling.

In August, a month into articling, Kate contacted me. She wrote:

I had a question I was hoping you could help me with. Do you know if it is common practice for firms to tell their students the “unspoken rule” is that they cannot leave until all the partners do (irrespective of hours already worked or the presence, or lack thereof, of impending deadlines) and that they are not to take lunch out of the office?

Thus began a series of correspondence where Kate made it clear that she had explicitly been told she couldn’t leave the office, couldn’t go for lunch and much worse.

A month later, Kate wrote to me again:

I am finding my work environment to be toxic/abusive. After having spoken to several colleagues, I have realized the on goings and treatment at my firm seem to be far more negative than other firms, and I assume completely inappropriate. While I am prepared to suck it up and chalk this up to a “life experience” (I know articling isn’t usually a fun experience for anyone) I am worried about the quality of the education I am getting here, and the type of lawyers I am learning from. Any advice would be much appreciated as always.

I was concerned about Kate and I met with her in person. When she told me what was going on at her firm, it became clear that there was an element of sexual discrimination or harassment. To Kate, this was a minor issue compared to the daily “ordinary” harassment. However, to me, the mention of potential sexual harassment was the “hook” to refer Kate to the Law Society of Upper Canada’s Discrimination and Harassment Counsellor Cynthia Petersen.

The Discrimination and Harassment Counsel Cynthia Petersen recently released a 10 year report on her office. The results are not pretty, especially for articling students. 22% of all complaints came from law students, primarily articling students but also summer students. To put this in perspective, there are 46,000 lawyers being regulated by the Law Society in Ontario. There cannot be more than 2,000 students. So students make up maybe just over 4% of the legal population, but account for 22% of all complaints. And yes, 75% of the complaints from students are from women.

But the picture of abuse is actually worse. The Discrimination and Harassment Counsellor only has jurisdiction over harassment and discrimination allegations based on human rights prohibited grounds of discrimination such as race, gender and sexual orientation. Her office has no jurisdiction over harassment allegations that are not based on any prohibited grounds of discrimination such as allegations of bullying, intimidation, abuse of power, etc.

Articling students facing such harassment have few choices. They could make a complaint to the Law Society, file a complaint under the firm’s internal workplace harassment policy (assuming it exists), consult an employment lawyer or perhaps bring a human rights complaint. The power dynamics of articling make such options not particularly appealing to most students. So most would stick it out. Some brave ones like Kate may quit her job and look for other work. Others may leave the profession.

As members of the legal profession, we often boast about the high ethical standards of our profession. We need to look more at how we treat the most vulnerable members of our profession.

To its credit, the Law Society of Upper Canada has realized many of the flaws in the current articling system during its recent review of articling: the lack of oversight and quality control over articling. I hope other Law Societies will as well.

Jordan Furlong wrote a fantastic must-read blog post where he implored lawyers and law firms to “ask the Moneyball question” about the practice of law. That question is essentially, “If we weren’t already doing it this way, is this how we would do it?” Furlong asks this question about the practice of law and innovation (elsewhere he asks it about women and the law).

I like to ask “the Moneyball question” about regulation of the practice of law. Law Societies have outsourced the responsibility over legal training to lawyers in private practice with next to no supervision. Law Societies are much better at making lists of skills that articling students are supposed to acquire during articling than they are at ensuring that articling principals actually teach these skills. No business would run its operations like this and it is no way to run a licensure system.

As I have argued elsewhere, Law Societies need to regulate law firms. I have come to realize that no example better makes my case than the poor state of articling both in terms of the lack of oversight over quality control and over the ethical abuses that take place in articling.

Is articling unethical? I don’t necessarily think so. What is unethical is ignoring the abuses that occur in articling and failing to effectively regulate articling so as to prevent such abuses.

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Comments

  1. David Collier-Brown

    Interestingly, I saw exactly the same kind of behaviour in apprenticeship schemes, suggesting we may need a broader solution than one for articling students.

    In my ill-spent youth (;-)) I apprenticed as a motorcycle mechanic. While my employer was ethical to a fault, I learned from my fellow students on the occasional required courses that they were unusual.

    If you asked the students the moneyball question, though, they’d probably have said “of course employers will treat their apprentices badly: it’s to their financial advantage”.

    –dave

  2. Thanks for this. Few have been able to speak out over these issues, largely out of fears of reprisals by employers.

  3. Thank you for writing this, although I disagree with the ultimate conclusion. I think that having the articling system is a huge black mark for the legal profession.

    I say this as a young lawyer, but also as a person who very nearly didn’t make it through articling. During my time I experienced bullying and harassment that included harassment based on gender (I’m male, but it still happens) and disability, as well as overt threats of violence, threats to my legal career, and more.

    At the peak of this, I was actively suicidal. The law society offered little in way of support–some limited free psychologist appointments, and the option to launch a full complaint that I really wasn’t psychologically equipped to deal with, and which would have triggered the threats to poison my name within the profession.

    The person behind all of this is certainly at fault, but so are we for creating and supporting a system so ripe for abuse. And I know my case isn’t included in the stats. I suspect there are many more cases that are never reported.

    I have resolved not to participate in such a broken system. I won’t take on an articling student. I encourage other lawyers to make a similar pledge, as I hope the system will become impossible and thus change will be necessary.

  4. Hello

    This is an interesting article, but it would really benefit from more specifics. I find it strange that a male law professor was able to identify “an element of sexual discrimination or harassment” (even this classification is remarkable ambiguous) that had been invisible to an intelligent, ambitious woman.

    anyway .. its an interesting suggestion that you are making, that we can’t rely on people to uphold their ethical commitments, and need to regulate. i would think it a slippery slope to just getting rid of the law society all together.

    m

  5. Thanks David, Omar and “I” for your comments. I – thank you for sharing your story. Sadly, I doubt you are alone in your experience. I agree that we need to change the system but not sure I agree with your strategy although I can understand your response and I respect it for you personally. As lawyers, we need to demand more from our Law Societies.

  6. Anytime you allow a tradition & hierarchy-steeped profession self-regulate, this kind of variation, inaccessibility and abuse is unavoidable. But what is the solution – the still untested LPP?

    The articling crisis is a product of many factors – legal culture (and all its self-important traditions/biases/inertia), economic shifts that have reshaped lawyering priorities from a service to a business, law schools that insist on churning out more and record numbers of JDs into a soft job market, and that’s just for starters.

    Even if there were real standards for practical legal competence and guidelines for articling supervisors to follow, the power imbalances described in the article remain, and the accessibility to meaningful recourse for students is low – the culture of legal practice is still largely one of hierarchy and deference to status. This is not to say most articling supervisors are tyrants or otherwise don’t want their students to learn and prosper, but we’ve seen that poor mentoring can happen to even the best of students.

    Law Societies need to have stronger and more precise rules in place that specify levels of competence, milestones, evaluations and recourse options for both students and supervisors. They cannot rely on the old-fashioned guild-like mentality that lawyers know and will always do what is best for their own kind – that’s old boys club thinking. Its doubtful that law societies can or will change quickly enough to benefit new grads – they will just strike up another working group to study the issue, and deliver some tepid and watered down findings that will ultimately support the status quo. Is it realistic to expect a regulation society made up of established names in the profession to be able to understand the concerns of new grads and lawyers, let alone take positive steps to change things when those changes will inevitably disturb their own practices and interests?

    I suspect the Law Practice Program, well intentioned as it is, will not fare well since it is still mired in the context of seeing itself as a lesser but necessary process to the established articling process that has served traditional law profession interests for so long. Its time to get rid of articling as it stands now, and bring in an LPP-type model as the only practical licensing requirement. It should be a program that draws its curriculum and objective from independently assessed needs of new grads in the real world of legal practice, be it in corporate, criminal, rural or whatever practice.

    The LPP, ideally, still means that students can get practical law firm/practice experience, though not as long, and its contextualized by a structured learning curriculum with clear and relevant practical learning objectives. (This presumes the LPP pilot can and will hone itself into a practical and useful learning experience for new grads. It should be taught outside of the existing law school system – at a dedicated program and facility that is not tied to the academic bureaucracy that are the antithesis of what a practical curriculum needs to be. Its also a good way for students from different schools to meet, mix and compare their baseline skills.) It would also get rid of the inevitable two-tier system hierarchy that will exist as long as articling and the LPP co-exist – with the former, benefiting from a tradition-bound legacy, will be regarded as the ‘have’ and the latter the ‘have not.’

    Its time for stronger and more objective regulation of the profession through a more autonomous governmental body. Its time for tough love for the whole legal community. Circumstances demand it. Now.

  7. I know an incredible amount of bright peers from law school who were enormously excited about their big-firm jobs but were quickly disillusioned and were either out of law within a few years or had ran off to smaller, boutique style firms where law is treated more as a job than a lifestyle.

    This profession has a bizarre obsession with working extremely long hours and indoctrinating new lawyers into that model. It seems almost like brainwashing (if you want to make $300-500k per year as a full partner you better be ready to essentially sacrifice 15-20 years of your life – and the best years at that – to reach that goal. In the meantime, know your place in the hierarchy). I am at a small, 6 lawyer firm and our articled student is not provided with overwhelming pressures and is allowed to come and go at normal hours (in other words, no one cares if she’s only here for 40 hours a week because most of us aren’t here more than 50 on a busy week). That seems far more likely to create a lawyer who actually enjoys her job and wants to grow into this profession than if we insisted she be here longer than we are.

  8. Law Societies have outsourced the responsibility over legal training to lawyers in private practice with next to no supervision.

    “Outsourcing” is an interesting way to frame what was essentially the way barristers and solicitors were trained for centuries. I agree that articling students are at an increased risk for exploitation due to the power imbalance. A similar power imbalance is growing for 1st year associates – removing articles would simply turn “desperate students” into “desperate associates.”

    The problems with the Bar are cultural and extremely deep-seated. Rampant mental health issues are the result of the long hours, intense deadlines and stressful work.

    The implication here is that simply we cannot trust lawyers to obey the law society rules and human rights legislation. What you argue in your hyper-linked paper will create significantly more bureaucracy. Your model may work for larger firms that can afford to designate an “ethics counsel” but for smaller firms extra compliance schemes will be prohibitive. The costs of legal services to the public might increase.

    To what extent are the problems you identify exclusive to articles? Ie. (i) harassment and discrimination exists in practice as well as articles, (ii) there is a lack of ‘quality control’ about what goes on after articles, (iii) there are systemic inequalities at the level of firms and practice areas. Many associates find themselves at firms they don’t care for and in areas they dislike.

    Lawyers interpret the rules through their own cultural lens. It’s not clear that a compliance regime enforced by an ‘ethics counsel’ will change firm culture. Your suggestion (pg 438) that wide-spread “malfeasance,” ie. sexual harassment, attributable to a firm’s culture should result in the firm being punished is difficult to reconcile with the proposals. If a relaxed attitude towards sexual harassment is an ingrained cultural feature of a firm, how can we even expect an ethics counsel to enforce the rules in an environment where the ethics counsel likely has the same attitudes?

    I’m not sure that articling students are as powerless and “desperate” as suggested. “Kate” identified a problem with her articles that never should have happened and sought advice. She had a choice of firms. Her dispute is regulated by contract – she will be unlikely to ever return. The lawyer’s reputation will rightfully be damaged. Furthermore, a complaint to the law society should be made. The compliance measures proposed in your hyperlinked paper ultimately end up with law society discipline (or more compliance) – the proposed measure is redundant since a complaint can already be made under the current scheme. As your stats bear out, students do complain effectively.

    We do not need more bureaucracy, students themselves as future members of the Bar are the ones who will effect these essential cultural changes. We need to give students more effective complaint mechanisms and support.

    Thanks you for the article. This is often an angle of the ‘articling crisis’ that is ignored and it needs much more attention one way or another.

  9. The new LPP program can’t be worse in its ability to educate than is the current use of articling. When I did the Bar Admission Course, Sept. 1964-March 1966, the articling year was the most useless part of the whole of my legal education, and the following 7-month, “academic”Bar Admission Course part was the most useful. It was made up of 1 and 2-week “law practice management” courses (with some summaries of substantive law), each course ending with a 2 1/2 or 3-hour written exam on Fridays. Classmates who went directly into sole-practice, depended heavily on the written materials from the Bar Ad. Course to service clients.

    About 95% of my articling period was spent doing legal research, the most interesting part of which involved drafting factums for criminal appeals at the Ontario A.G.’s Dept, then at Queen’s Park.

    The weakness of articling is that it’s used as cheap labour, and therefore inadequately supervised labour because that is the most effective way to lower the cost of legal services to clients, i.e., “cutting costs by cutting competence.” And therefore, because all legal services are based upon legal research, clients should be told that the legal services they find so expensive, are based upon the work of law students. The medical counterpart would be to leave the triage or “farming-out to specialists work” of our family doctors to be done by medical students, it also being a “foundation service” for other services, as is legal research. That would be scandalous. And so is telling clients that the work of law students is adequately supervised. If in fact it were, there would be no cost saving in using students to do legal research.

    As to the second excuse used as to law students knowing all about legal research because they have just come from law school, the quality of all legal services depends on talent, training, and experience, experience being the most important. Law students lack experience. Therefore telling clients that students know all about legal research, is telling a less than half-truth.

    And therefore, the new LPP program has got to be better in its ability to educate than is the current use of articling.

  10. I had the benefit of articling with a firm of about 8 lawyers. I can’t imagine going out into practice without the experience that I gained. I drafted pleadings, motions, prepared facta for administrative law and for the Federal Court of Appeal, attended motions on my own, met with clients and conducted trials in small claims and summary conviction court. I was taught to do real estate, criminal matters, family, civil litigation, wills & estates, corporate litigation, creating corporations and various other offshoots. I did discoveries on my own and assisted partners in trials and other hearings. Oh yes, I also did research and drafted memos.

    On top of that I did the office groceries, fetched the laundry for the senior partners when needed, shuttled between a couple of offices and worked 18 hour days. On weekends I cut back to 8 or 9 hours. It was a challenge to get into the office before my boss who was often there by 5:30 a.m. I was often the last one out of the office at night. But – it wasn’t demanded of me – I just did it because the work needed to be done.

    I purposely chose to work in a small(ish) office because of horror stories I had heard about large firms, particularly factories in Toronto who supplied offices with pull-out couches and had 24 hour catering service. And those articles, the ones I was able to secure, was, without a doubt, some of the best times I have had in this career.

    As a profession, we are obligated to ensure that the people who are in it are competent and have the skills to perform as lawyers. We can all wax poetic about who should be articling principals, what the requirements are etc etc etc. Frankly, like so many things in this profession, it is a matter of common sense. Or at least should be.

    A failure to provide that experience not only fails the student but fails everyone else in the profession and the public. We end up turning out lawyers, who in theory can do anything in law that they wish, without the basic skills needed in many areas that would allow them to be competent.

    Memo factories do a disservice to us all. Those large offices have the ability to properly teach their students through proper hands on experience. The failure to do so has more to do with a lack of willingness to sacrifice billable hours than almost any other factor. Why get someone else to do the work when you can bill at twice the rate and get credit on the number of billables you need? Besides, the supervising lawyer would only have to re-write it anyway. Supervising means reviewing, critiquing, editing, watching, teaching. Most of which doesn’t count towards the bottom line. Senior partners are too senior, junior lawyers too busy.

    There is nothing wrong with working a student hard. There is nothing wrong with “cheap labour”, though frankly, I have a hard time looking at someone right out of school getting a $50-70,000 a year salary as “cheap”. There IS something wrong with lawyers who feel the need to degrade students … or in Katie’s situation, worse. But without someone actually going to LSUC, and without LSUC actually doing something about it, those people will carry on doing it. What’s to stop them?

    Whenever we have had students, as a principal, I have endeavored to provide the same experience and opportunities that I was given 25 years ago. It is my obligation and my pleasure.

  11. Why can’t the LPP be taught during the third year of law school and/or during the 1L summer? Most law schools employ practitioner instructors anyway, so why can’t they draw from those resources to implement a LPP curriculum?

    I don’t know how I would be able to make my student debt interest payments if I had to do the LPP after law school without an income. Most banks freeze the student line of credit after university graduation, so I am not sure how it would be possible to survive without income or credit while doing the LPP after graduation.

  12. My articling year was presumably one year later than that of Ken Chasse (1966-67), but my experience in comparing and contrasting that year of articling with that of the Bar Admission Course was quite the reverse of his.

    My articling experience was stellar: I was given lots of responsibility, I had excellent supervision, I testified as a witness who had taken photos in the leading picketing case of the decade, I attended appeals, I appeared alone before a Master on a contested motion, I was included in meetings with more than one CEO, sat in on several board of directors’ meetings and drafted the minutes, scoured the minute books involved in an international business acquisition, then drafted the closing agenda and attended at the closing ……….

    By contrast, the BAC was a bore and I learned very little, alleviated only by the fact that I sat next to Hartley Pomerantz and so was intelligently (and professionally) entertained.

    I’m not sure what this contrast in experiences proves (accepting that both the profession and the course has changed in the intervening years), but I could not let Ken’s account suggest that his experience was representative of all experiences in the 1960s.

  13. What is so very disquieting about this article and the comments is that this “legal” form of slavery, in some law firms, has gone unregulated but also, rarely decried as unjust by the Law Societies. Kudos to Adam for tackling this “Bah! Humbug!”. Any culture that promotes and rewards “work hard, no work harder and play by the rules (as long as they are our firms rules)” is certainly not asking any hard moral questions about best practices and standards for themselves or the articling students they hire. The problem which has been indentified and must be addressed is the corrosive consequence of inequality which exists in the attitudes and practices of some law firms toward articling students. The Law Societies must engage in dialogue with articling students and their mentors to ensure they are being heard and that a process exists for their concerns to be addressed in a timely manner. Law Societies across this country must unite in Solidarity—embarking on an affirmative action plan against the enslaving of articling students. Charles Dickens created the fictional character of Ebenezer Scrooge, a chronicler of injustice, so that the emblematic roles of the Bob Crachits and “Kates” , as employees, would get some respect and justice. To quote Tiny Tim, “God Bless us, everyone! (with special consideration for “Kate”).

  14. Excellent article, Adam and very interesting comments!

  15. My experience could not be more different than that of Ken Chasse. In 1978/9 when I articled and did the Bar Admission Course, it was the Bar Admission Course that was a complete joke. After a time I seldom attended because I found I learned almost nothing. The materials could easily be read and regurgitated for the exam. Articling on the other hand was a wonderful and enriching experience with skilled mentors whose teachings and tutelage I still remember today. I participated in interesting work and learned basic office etiquette and skills. That being said I certainly recognize that even then the experience depended entirely on who you worked with so the consistency of the experience was certainly wanting. I believe the LPP is a bold and worthwhile initiative and hopefully will serve a very useful purpose.

  16. Thanks for the further comments. It is equally important to hear and tell stories such as Gary’s because his articling experience is what everyone’s should be. It is what articling should be designed to be like and audited to some degree by the LSUC to try to make sure that as many students as possible get the sort of experience that Gary did. I am hopeful but nervous about the LPP. I hope it will achieve some of the goals that Gary and others have identified. But I am worried that it may have some other effects: reduce existing articling sports, increase student debt, etc.

  17. Adam I suspect it will take a few years to see the results. Initiatlly I think it will be the domain of those that cannot get articling jobs but over time if the experience with those students is positive I am hopeful that it will flourish. Certainly a smaller firm such as mine will have to look seriously at an association with the program for placements and future associates. Despite what the person who commented that it was cheap labour might think, on an economic basis we can never justify having articling students or for that matter first year lawyers. We hire them out of some sense of responsibility to the profession. However if there is an alternative where we can share the training and make it more consistent and strutured we would be foolish not to consider it.

  18. Gary – I agree that the LPP will only be able to begin to be judged after 7-10 years, which makes a 3 year pilot program problematic. You raise an important ethical and practical issue – firms such as yours that take on articling students out of a sense of responsibility to the profession. I think there are many such lawyers/firms – how many I do not know. I think of such firms as providing a “grey zone” of articling positions (although perhaps yellow or amber for warning might be a better colour). Anyways, these are the uncertain number out of the 1400 stable articling positions that make no economic sense for the articling principals/firms but as you say – the lawyers take on articling students out of a sense of duty. With the LPP some of these articling positions will disappear because the “duty” is reduced due to the existence of the LPP. This will push more students out of paying articling positions into paid-for LPP programs. This much we will probably be able to see within 3 years.

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