In Defence of the Law Practice Program

The Law Society of Upper Canada’s Professional Development and Competence Committee has released a report that recommends ending the Law Practice Program (LPP), an alternative pathway to licensing lawyers in Ontario, only two years into its pilot project term. The governing Benchers of the law society will vote on the committee’s recommendation on Nov. 9. Here are news articles about the situation from The Globe And Mail, The Lawyers Weekly, Law Times, and CBA National magazine.

The committee’s recommendation is incorrect and ill-advised, and the Benchers should reject it at their November 9th meeting. Here’s why.

1. There is no evidence that the program is failing.

Let me quote from the committee’s report itself: “There is no evidence to suggest that the LPP is in fact second-tier or merits [such a] perception. Indeed, as the Committee has discussed above, the LPP is to all observation of very high quality and may, in fact, excel over articling in a number of areas” (para. 59).

Indeed. There is no evidence that the new lawyer training experience provided by the LPP is inferior to articling, that lawyers trained through the LPP are less competent than those who passed through articling, or that the two providers of the LPP (Ryerson University and the University of Ottawa) are failing to provide a good training experience — in fact, the committee went out of its way to praise these providers.

There’s only one data point in the report that casts any kind of shadow on the LPP. In paragraphs 88 to 102 of its report, the committee notes that first-time licensing exam failure rates were about three times as high for LPP participants as for articling students. Obviously, that’s a concern.

But as the committee says, these exams “require candidates to study, comprehend, analyze and then apply their knowledge, skill, ability and judgment to situational test questions.” Put differently, these exams test in writing a candidate’s knowledge of the law, a topic on which neither the articling experience nor LPP work placements has any real bearing. This discrepancy is far likelier to be traced back to the licensing candidate’s performance in law school — and I strongly suspect that it’s precisely those students who performed below the average in law school who have greater trouble landing an articling job, and who are therefore likelier to enter the LPP. (Author’s note: please see comment from David Wiseman, below, for clarifying information on this point.)

If the committee wants to address with law school deans the preparedness of new law graduates to pass the licensing exam, then they should do so. But that’s not an issue to be laid at the LPP’s feet: correlation is not causation. If the committee had evidence that lawyers trained through the LPP fall below the standards of performance and professionalism that the Bar has set for itself, I’m sure we’d hear it. But I don’t see that data in this report.

I also see references in this report to the greater difficulty faced by LPP participants in landing full-time jobs in law firms [para. 69]. With respect, that’s not why the LPP (or articling, for that matter) exists. The sole purpose of both the articling system and the LPP is to ensure the competence of new lawyers, so as to better serve and protect the public interest. Nobody suggests that an articling experience is worthless if the student is not hired back as an associate. The same test should not be applied to the LPP.

2. The “second-tier” argument for ending the program is specious.

The primary ground cited by the committee to support ending the program is that the LPP is perceived to be a second-tier pathway into the profession. Here are some of the reasons cited by the committee to support its opinion:

* “The majority of candidates in each licensing cohort appear to consider the LPP alternative as a second choice or, indeed, no choice at all.” [para. 60]

* “The LPP failed to interest a significant portion of licensing candidates who could have chosen this path.” [para. 62]

* “A declining percentage (38% in Year One and 27% in Year Two) of candidates in the LPP reported that it was their first choice for transitional experiential training.” [para. 64]

* “Some of the LPP Focus Group participants expressed that this notion of stigma is linked to nomenclature, for example, ‘LPP candidate’ versus ‘articling candidate,’ when both could be ‘students at law.'” [para. 68]

* “The Committee accepts that there is little concrete evidence yet about law firm attitudes toward hiring the graduates, but the perceptions of candidates themselves reveals a deeply held view about which pathway is preferable.” [para. 79]

So, if I’ve read this correctly, the committee wants to cancel the LPP primarily because many of its student participants consider it to be an inferior or second-class pathway into the profession. Where could they have gotten this impression? Who could be sending LPP participants a signal that their licensing experience isn’t as good as an articling experience?

Let’s ask all the Benchers who voted against the LPP pilot program in 2012, as reported nationwide by The Globe And Mail: “Some within the Law Society have criticized the program – 20 of 56 council members voted against it. They argue some firms will see the participants as second-class [and] that it will create a two-tiered licensing system….”

Let’s ask former Bencher Gavin MacKenzie, who opposed the creation of the LPP in 2012 and explained his reasons to Law Times: “A major objection that I and others had to the proposal that carried … was that it created a two-tiered system and that graduates of the Law Practice Program would not be perceived in the same light as students who secured articling jobs.”

Let’s ask current Bencher Joseph Groia, who spoke at length to The Lawyers Weekly about his opposition to the LPP: “I would say to the people who want us to continue: How many more disadvantaged, second-tier lawyers do you want to have called to the bar…and what do you propose to do to help them overcome the stigma that they now are really having to deal with as they try to become fully contributing members of the profession?”

And let’s ask current law society Treasurer Paul Schabas, whose 2015 Bencher candidacy website states: “I also opposed the Law Practice Program for creating a two-tier licensing process. There will be review of it soon, and if it’s not working we mustn’t be afraid to dump it.”

I’m not criticizing any of these lawyers for holding these opinions, to which they are fully entitled. I’m saying it’s a little hard for the Law Practice Program to establish itself as a legitimate pathway into the profession in Ontario when the leaders of the profession have been ripping it as inferior and second-tier from the day the program was announced.

Why wouldn’t the LPP’s participants feel they’ve been shunted onto a secondary track, when practicing lawyers keep sending that message in the legal and mainstream press? The LPP’s “second-tier perception” rap looks to me like a self-fulfilling prophecy; yet it’s the primary ground relied upon by the committee for ending the program.

As for many LPP participants’ own preference for an articling position rather than an LPP placement — why should this be a surprise? Of course most students would prefer the articling route: it pays better, it offers a better (if ever-dwindling) chance of hireback, and as the profession apparently never tires of telling them, it’s regarded as the first-tier option.

Viewed in this light, the remarkable thing about the committee’s prize statistic — that the LPP was the preferred choice for “just” 38% of Year One and 27% of Year Two candidates — is that the number is that high at all! Nearly a third of the people enrolled in this brand-new, frequently derided pathway in its first two years are there because they want to be. What would those numbers be like in five years, or ten, as the program continues to evolve and improve?

Law professor Noel Semple puts it very well: “A regulator ending the LPP because it’s perceived as second-tier to articling is like a regulator banning Chevrolets because they are perceived as second tier to Cadillacs.”

3. The financial reason for ending the program isn’t much better.

The “second-class status” of the LPP isn’t the only reason cited by the committee to end the program. As The Globe And Mail reports, the LPP “is funded through an additional $1,900 licensing fee from each of the more than 2,000 people who enter the profession each year. If the fee was charged to LPP participants only, it could rise to as much as $17,000.”

The committee’s report also says: “Lawyer licensees are also supporting the cost of the LPP by contributing $1 million annually as part of their licensing fees” — but then it goes on to add, “although this amount has been allocated in years preceding the pilot project for other licensing-related matters.” So let’s be clear: this amount is not a new expense created to cover the cost of the LPP.

If the committee’s problem with the LPP is that it’s expensive, then my response is: Yes, it is. It’s supposed to be. Training new lawyers is expensive. Law firms, the private entities to which the law society has been outsourcing the responsibility of assuring new lawyer competence through articling, routinely spend tens of thousands of dollars every year in salary alone to hire an articling student, never mind overhead, benefits, staff support, and billable time foregone by supervising lawyers. And I think most law firms in Ontario would attest that they can recover at most a small fraction of that expense through billing the students’ services to clients. (And we wonder why the number of articling positions is diminishing?)

What the LPP has really done here is to surface and make visible to the law society exactly how much money it costs to bridge a lawyer from law school to practice. Perhaps because the law society has never had to incur those costs directly, they’ve come as a bit of a shock.

But if the concern is that charging all new licensees $1,900 to fund the LPP is unfairly burdensome, then I agree. This cost should not be borne solely by new licensees, who enter the profession already staggering under massive debt loads and who have the lowest earning power of anyone in the profession. Instead, let’s spread the cost among the nearly 50,000 lawyer licensees in Ontario, or even among the approximately 25,000 lawyers in private practice.

Let’s do the math. If I multiply $1,900 by 2,000 new licensees, I get $3,800,000 annually. Divide that number by 50,000 and the amount drops to $76. Limit it just to private-practice lawyers and the amount doubles to $152. Add in the $1 million cited above, if you like — that’s $40 per practicing lawyer, bringing us to a grand total of $192 a year. According to Canadian Lawyer‘s 2016 legal fees survey, that’s equivalent to less than one billable hour a year for first-year lawyers, maybe 20 billable minutes a year for veteran practitioners. That doesn’t seem excessively burdensome to me.

4. The Law Practice Program works.

I’m not suggesting that the LPP is flawless and requires no improvements. Of course it’s a work in progress, and I expect that its providers would be among the first to agree. But just two years into a small-scale pilot project, how is it reasonable to expect anything else? If we travelled back in time to the early 20th century and assessed the articling system two years into its development, how good would it look by comparison? It’s really not clear to me what the Professional Development and Competence Committee expected from the LPP at this stage of its development, and how realistic those expectations were.

But if the committee was interested in hearing some LPP success stories, some first-hand accounts that could belie the “second-tier” label, they are readily available. The lawyers, law firms, and in-house departments noted below either don’t buy the “second-tier” assessment or were willing to look past it.

* Jeffrey Francis, senior counsel at RBC, “wondered about the LPP program when it was launched and whether it would give students what they needed to know. ‘When I was articling, I estimate it took me at least six months to get up to where Amanda was when she joined us,’ he said, regarding LPP participant Amanda Amiri. ‘She knew what an NDA was, an indemnity, and a lot of other things you aren’t taught in law school.'”

* “There was a negative perception [at the Ministry of the Environment] about what the LPP was,” said program participant Anna-Carole Bougie. “But when I spoke to them and as they saw the work I did, I got a lot better feedback about the LPP program. They said in some cases I was better prepared, because the practical experience we had in the fictional firm allowed me to know what documents they were talking about.”

* Joshua D’Cunha’s “classmates and lawyers derided the program, insisting that employers would thumb their noses at LPP grads. Over time, D’Cunha recalls, that negativity sunk in: ‘I wondered, Maybe this will haunt me for the rest of my career.’ Then he got to Infrastructure Ontario — and no one cared. ‘All they were concerned about was my ability to do the work,’ says D’Cunha. After his placement, his boss hired him back, selecting him over an articling student.”

Notice that in each of these cases, there was an initial degree of skepticism about the quality of LPP participants among the lawyers who took them on, or even among the participants themselves. But the students overcame those perceptions and proved themselves to be as good as any student hired to fill an articling position. And that brings me to my final point.

5. Perceptions can be changed.

If the law society is really concerned that there’s a perception of second-tier status afflicting the LPP, then it should start working to change the perception. If the law society were to throw its weight and authority behind the LPP, to show its support by standing up for the program and its participants, then those perceptions would start to improve in a hurry.

This would not be hard to do. Find more success stories like those cited above from the LPP and publicize them throughout the profession. Get clients who’ve worked with LPP lawyers to provide glowing testimonials. Acknowledge that the program still has bugs to be worked out, but then start working to address them — don’t pronounce the patient to be terminally ill upon getting its very first physical.

This is the opportunity that now lies before Convocation. The report of the committee, and the denigrating commentary about the LPP that accompanied it, has inflicted a great deal of damage to the program. Once you start telling everyone that something is “second-tier,” then regardless of the facts, the perception is poisoned and the program will find it ever more difficult to recruit participants, mentors, and placement opportunities. The prophecy continues to fulfill itself.

But Convocation can stop that process in its tracks by rejecting the committee’s recommendations next month. By voting to support the LPP for at least another few years (and strengthening its sustainability by spreading the financial cost of the program more equitably across the profession), the law society’s Benchers can start a brand-new narrative: of a governing body that’s willing to show courage and vision in the face of challenging early returns, that won’t abandon ship at the first sign of trouble ahead.

If the LPP were demonstrably proven to be producing incompetent lawyers, then I’d be deeply concerned about continuing to support it. But is the law society seriously going to give up on a promising and innovative new-lawyer training program because it has an image problem?

I’ve had my beefs with LSUC Convocation before. I opposed the decision to continue enforcing Ontario’s restrictions against non-lawyer ownership of law firms, for example. But the ABS debate was a real debate, with facts, evidence, and principles in play, and reasonable people can disagree about the wisdom of non-lawyer ownership. The decision not to pursue the ABS path was at least defensible, and while I disagreed strongly with those on the other side, I respected their position.

This situation is different: there are no facts to discuss and no greater principles at stake. The committee wants to end the LPP because it isn’t sufficiently popular within the legal profession two years into its pilot term. That’s not remotely a good enough reason.

No other options are on the table

And let’s add one more fact about the LPP: it is never more necessary than it is today. The committee’s report does not exactly praise the articling system to the heavens either, and rightly so. The worst-kept secret in the Canadian legal profession is that articling has been stretched beyond its limits and can no longer function as a viable and equitable new-lawyer competence assurance system, a role it was never meant to play anyway.

If the LPP is abandoned, then the rapidly narrowing path of articling will be the only way for new law graduates in Ontario to enter the profession, and that’s not going to cut it. Hundreds of otherwise viable candidates for Bar admission will be shut out of the legal profession every year because the articling positions simply aren’t there for them. It is inevitable that one of them will challenge the barrier to entry that the law society has erected. It is entirely likely that they will win. And then what?

Let’s be clear: the Law Practice Program was conceived out of pure necessity. The number of articling jobs is shrinking, and there’s nothing the law society can do to stop that. There needs to be another route into the profession besides articling, yet over the course of several decades of near-constant study, the law society has not come up with any viable alternative option other than the LPP. There is no Plan C.

The choice today is to invest more fully and sincerely in supporting the Law Practice Program through its growing pains, or to sit back and wait for the letter to arrive from the federal Bureau of Competition opening an investigation into restrictive admission practices by the self-regulating body for Ontario’s lawyers. I think that’s a decision that all but makes itself.

If you’re an Ontario lawyer who’s concerned by the foregoing, then contact a Bencher in your district to make your opinions known. If you’re a lawyer outside Ontario or just an interested onlooker, consider signing on to this petition simply to make your feelings known. And if you’re a Bencher of the law society, I hope you’ll consider these arguments before casting your vote next month.

Comments

  1. Yes! Thank you, Jordan, for laying this out so plainly for all to see.

    I hope some of the Committee members take the opportunity to use this forum to make their case. The Report, while long, offers insufficient evidence to any reader to support the recommendation to discontinue the LPP.

  2. Bravo Jordan . I agree completely

  3. I agree wholeheartedly with your critique of the LPP evaluation by the PDCC. I would only quibble with your concession that the differential performance on first attempts at licensing examinations casts a potential shadow on the LPP because of a three times higher failure rate of LPP candidates compared to Articling candidates. My quibble is that many candidates, from both pathways, first attempt the examinations BEFORE starting either the LPP or Articling. Indeed, as the accompanying evaluation study notes at p. 118 “The LPP Providers strongly recommend that candidates complete both the Barrister and Solicitor Licensing Examinations prior to beginning the LPP, although they are not required to do so.” Given this, the more relevant comparison is ultimate success in passing the licensing examinations (up to 3 attempts are allowed). As stated at para. 97 of the PDCC report, the relative failure rates at that point in time are 20% for LPP candidates v 10% for Articling candidates. To be sure, a two times higher failure rate is a valid concern, but then it also needs to be noted that the LPP thus managed to just more than halve the failure rate among LPP candidates from first to final attempt (from 43% to 20%), whereas the Articling program only reduced the failure rate from 16% to 10%. In my view, if there is any shadow left to be cast over the LPP from the licensing examination results comparison, it sure has a silver lining.

  4. I have been doing culture change for organizations, including law and accounting firms since the early 1990s. I was the director of Marketing at McCarthy’s (1993 to 95) and Change Communication at KPMG (2000 to 2004, during the Sarbanes-Oxley re-regulation of accounting firms).

    I have also done large-scale change communication at Nortel, Canadian National Railway, and Hydro One.

    Let’s face it: the legal profession has so much inertia behind it that a miracle is required to affect even minuscule change. The default position on many issues is: “But, we’ve always done it this way!” And they have. For hundreds of years.

    Legal education teaches lawyers that its win/lose, right/wrong, yes/no. Lawyers are trained to implement legal legislation and adhere to the Law. In my experience, they are not good at grey areas.

    It would be a shame to scrap the LPP, throwing out the baby with the bathwater. Rather than scrapping the LPP, why not HELP TO FIX IT? Fix what isn’t working and move on. Keep evolving it. This is the principle of continuous improvement that many corporations latched on to in the mid-1990s.

    There is much irony that lately, I have seen law firms “discover” ISO certification and Total Quality Management. If you look at back issues of Harvard Business Review, you’ll see that corporations have been using them since the 1990s. So, law firms are now where corporations were 25 years ago.

    At the end of the day, the big issue is this: the number of articling positions simply are not there for law graduates to get their licences. The LPP is a good solution given the alternative of no articling positions and leaving students stuck in legal purgatory.

    More insight: many clients of my firm, The Legal A Team, have sworn off articling students altogether. “Too much work to train them,” “By the time they are useful to me, their time is up,” “I don’t want to train a lawyer, I have a business to run.” This is the feedback from our clients, who are mostly in B2C law (family law, wills & estates, residential real estate, criminal, personal injury).

    Yet more insight: of the few B2C law firms that are our clients, who have taken on articling students, these students are learning how tough it is to compete in 2016. They are writing blogs, articles and managing social media. Hopefully, they are also learning how to be better lawyers, too.

  5. Ms Schilder:

    About this:

    >>More insight: many clients of my firm, The Legal A Team, have sworn off articling students altogether. “Too much work to train them,” “By the time they are useful to me, their time is up,” “I don’t want to train a lawyer, I have a business to run.” This is the feedback from our clients, who are mostly in B2C law (family law, wills & estates, residential real estate, criminal, personal injury)<<

    Then your clients are either getting the dregs of the articling class – and you and they should look in the mirror to find out why that's so – or the people in charge of the articling programmes should look in the mirror.

    Since I don't hide behind a nom de plume, it will be easy enough for you to determine where I articled, perhaps even the others in that articling year and the few years before and after. If you want to say we (and our cohorts) were so much better than the articling candidates your clients are now seeing, that’s fine with me. I rather suspect that at least some of the candidates would take issue, probably with good basis.

    Yes, it takes some time to train people to become better at what they’re learning to do. People who know me on the topic have heard me claim it can take 5 years for many of us to be minimally incompetent. Your unnamed clients attitude is part of the problem in the profession.

    David Cheifetz

  6. Jordan:

    I’ll respond to several things that you have said.

    The first is that, to me, the most compelling point that you make is that the proposal is to end the LPP without there being an alternative for those who are unable to find articles. Assuming the LPP to be flawed (if only in perception), not having a pathway is worse than having a flawed pathway.

    The second is the cost issue. It seems that the right question is the cost-effectiveness of the pathway itself. I think it no answer to say that the cost is small if spread over enough people. If it cost $3,800,000 to get 3 people or 100 people or 1,000 people licensed who otherwise would not have been, the cost per practising lawyer would be the same. But the cost effectiveness wouldn’t be. I think it a legitimate question whether $3,800,000 for 100 plus licensees makes sense irrespective of who pays.

    The third is your proposition that the problem is declining number of articling positions. As I understand it, this isn’t true. The gap between the number of articling positions and the number of candidates arises from (i) decisions by Canadian law schools to increase class sizes, (2) a substantial increase in number of Canadians going outside of Canada for law school and (3) a substantial increase in the number of legally trained immigrants. At one level, this doesn’t much matter as a gap is a gap. But I think your broader take on all of this is premised in part on the view that articling is withering which isn’t right, in total.

    I’m not on the committee. Just some thoughts.

    Malcolm

  7. Malcolm, thanks very much for your comments. I think we’re agreed on the first point, and it’s my hope that, even if no other pro-LPP argument carries the day at Convocation next month, the fact that no other proposed solution is even on the drawing board right now would motivate many Benchers to give the Program an extra lifeline. More on that at the end of this (admittedly) very long response.

    On your second point: the cost-effectiveness of the program is certainly a legitimate course of inquiry. I take your point and agree that we should look at the financial issue primarily from the perspective of the program’s cost-effectiveness, and only then in terms of its affordability. Cost-effectiveness is, of course, just one factor to be considered in gauging the overall effectiveness of the LPP. Other factors would include the pedagogical soundness of the classroom instruction, the quality of the placement experience, and in due course, an assessment of the competence of LPP-trained lawyers in serving clients. But let’s focus on “bang for the buck” for the moment.

    If we’re trying to decide whether $3.8 million is a cost-effective amount to spend on training a given number of potential new lawyers through the LPP, then we’re immediately confronted by another question: what do we consider that a cost-effective per-individual amount should be? How much money is reasonable to invest, on average, in a process that provides law school graduates and potential new lawyers with an adequate level of practical training and experience?

    I don’t know the answer to that, and I’m not sure there’ve been any studies on the subject. What we do know is how much law firms who employ articling students now spend to give potential new lawyers that kind of practical training and experience. It’s going to be an imperfect comparison, of course, but since articling is the only other system we’ve ever had for achieving this goal, we have to go with what we’ve got.

    From what I can tell (using a very unofficial tally at Glassdoor: https://www.glassdoor.ca/Salaries/articling-student-salary-SRCH_KO0,17.htm), articling salaries in Ontario appear to range from around $30-35,000 in smaller centers to the $70-75,000 range in downtown Toronto (perhaps with outliers in the $20s and $80s). Let’s estimate the median articling salary to be around $50,000 (I’d welcome better stats on this point.). As mentioned in my post, that amount doesn’t include overhead and internal costs borne by the firm, but nor does it measure any billings that the students can successfully generate. So let’s assume, again, that the students’ billings can more or less cover these expenses and maybe a bit more, and call the final tally $40,000-$45,000 per student.

    Now let’s look at the LPP. According to the Canadian Lawyer article linked in my post, 279 law graduates enrolled in the LPP in its first year, all but 19 of them in the English program. According to the same article, 238 of those enrollees completed the LPP, all but 17 of them in English. All these program participants cost money, of course, even the ones who didn’t complete the program, but let’s restrict ourselves just to the ones who crossed the finish line.

    So: $3,800,000 in costs divided by 238 successfully trained participants comes to $15,988 per participant. I honestly don’t know whether that’s a reasonable price for giving a single would-be lawyer the practical training and experience necessary to be called to the Bar. But it’s considerably less than the per-student cost of articling. And if 25,000 practicing lawyers were to pick up the tab, rather than the youngest and poorest 1,900 currently stuck with the bill, the final cost works out to less than one dollar per lawyer, per participant, per year.

    Now, I don’t have the enrolment numbers for the second year — you mentioned 100+ licensees in your comment. But let’s say it’s just 100 students — now we’re at $38,000 each. Could we do better? I’d like to think so. But we’re still competitive with articling, and we’re still at just $1.52 per lawyer per participant per year.

    My point here is certainly not that money is no object — as an LSUC member, I also would like to pay the least amount of money necessary to see an effective licensing outcome. Nor am I saying that articling salaries are the proper measure of good value-for-money in training new lawyers — I suspect they’re not. My point is twofold: first, that we need to decide how much we think is reasonable to spend to provide someone with the practical training and experience to bridge them from law school to law practice (and to explain why that amount is reasonable); and second, whatever that amount is, the LPP appears from my quick calculation to be closer to it right now than articling is.

    But now here’s the kicker: the committee’s report doesn’t say one word about the cost-effectiveness of the LPP or cite it as a reason to end the program. The term “cost-effective” does not appear once in the entire report. Your caveat about the cost-effectiveness of the LPP is a legitimate one — but that’s not why the committee is calling for the LPP to be cancelled. It’s not one of the reasons listed in the report that will be considered by Convocation. And this is why I reiterate that the report fails to make a sufficient case to support its recommendation.

    Finally, to your third point, that the articling “crisis” is due more to an expansion in the number of candidates rather than in the dwindling number of positions. I don’t have access to official statistics from the law society on this point myself. But I do know, according to the June 2016 issue of Precedent magazine (http://precedentjd.com/news/hireback-2016-results/) that among large Toronto law firms at least, there has been a drop, and a substantial one:

    “In any chatter about the student job market on Bay Street, the same pessimistic message floats to the surface: it’s harder than ever to land a job, and it’s not going to get easier any time soon. And as it turns out, now that this year’s Bay Street hireback numbers have rolled in, that message is dead on.

    “Over the past year, the number of articling jobs at those firms fell to 255 from 277 — the latest in a long line of annual dips. Back in 2010, there were 322 articling students at the largest 16 law offices on Bay Street, meaning that in less than a decade the number of articling spots in Toronto’s corporate epicentre has fallen by 77, a 22-percent drop.”

    Not all articling positions are on Bay Street, obviously. But a decent number of them are, and many law graduates mired in debt gravitate to these firms for the promise of big salaries to help them pay down their loans, even if they end up working elsewhere. And again, I don’t have the official stats, but I’d be pleasantly surprised if firms in Ottawa, Hamilton, London, Thunder Bay, etc. are growing their articling positions faster than Toronto is shrinking them.

    But anyway, let’s assume, for the sake of argument, that articling opportunities in Ontario are holding steady, and that the problem is mostly if not entirely the explosion in the number of eligible licensees. To this, I would make two observations:

    1. The LSUC chooses to grant preliminary licensee eligibility to every Canadian law school graduate, every graduate of an accredited foreign law school’s Canadian law degree program, and every legally trained immigrant (other than in rare cases of malfeasance or poor character).

    2. The LSUC chooses to make the completion of an articling period at a law firm (or, for the moment, of the LPP) a requirement for final licensee eligibility and accession to the Bar of Ontario.

    The law society is fully entitled to make both these choices. Perhaps the first one is really no choice at all — the LSUC has no power over law school admissions committees, and it has little standing to turn away qualified foreign lawyers. (Whether it needs to approve law graduates from Bond University in Australia, etc., is another story altogether.)

    But while it has the right to make these choices, the law society also has to live with their implications and consequences. And right now, these two choices are incompatible. The law society chose, or at the very least consented, to outsource the “practicum” element of new lawyer training to the private sector, and it made completion of that practicum a condition precedent to Bar admission. Now the private sector is unable or unwilling to provide enough mandatory practicum opportunities for everyone who wants one.

    That’s a problem. Whether it’s a problem of supply or a problem of demand, the articling system as a means to ensure practical competence of new lawyers is breaking down. Either the law society finds ways to reduce the number of eligible licensees to match the available articling opportunities (and I sure can’t think of any that won’t invite government scrutiny), or it drops the articling requirement and creates a potentially major threat to the ability of future generations of new lawyers to competently practise law upon their admission to the Bar.

    Or it finds a third way. There’s one such way already in progress, and it’s already got two years under its belt. And next month, Convocation gets to decide whether or not to kill it.

  8. Jordan,

    I’m somewhat agnostic about the LPP, but have a few comments on your article.

    “The number of articling jobs is shrinking, and there’s nothing the law society can do to stop that.”

    is that right? When I articled, a decade ago, there were 1400-odd articling positions. Now, there are closer to 1800. The problem isn’t a shortage of articling positions, but a sharp increase in the number of law school graduates owing to (i) increases in enrollment at existing law schools (Queens, Ottawa, being particular offenders), (ii) the addition of new law schools (Lakehead – although that likely hasn’t really be felt yet), and (iii) an increase in the number of Canadian students getting legal education abroad.

    Moreover, it seems part of the concern for the sustainability (and a problem with subsidizing the program) is that it was rapidly becoming a solution for other provinces’ articling crises – e.g., students from other provinces who couldn’t find articling positions would enroll in the LPP in Ontario and then head back home after they get called.

    Moreover, it doesn’t follow that just because it accredits a law school, the law society has some sort of obligation to ensure that law school graduates can successfully practice law. Indeed, what is interesting about the LSUC report is just how many LPP graduates do not practice law after the graduate – raising serious questions about why the profession as a whole should be devoting resources to training those individuals. Perhaps a better approach would be for the LSUC to require, as a condition of accreditation, law schools to provide data about the job/articling performances of their graduates (as the ABA does in the US) in order to give would-be law students full and fair disclosure as to what their likely outcomes are. There’s not point having people spent lots of money going to law school if there are no jobs for them in the legal profession.

    Furthermore, surely your argument for subsidizing the LPP would apply equally to subsidizing articling. What does the LPP cost per LPP student, $17,000? How many articling positions could be created if we were willing to pay principal $17,000 to take on a student?

    With respect to the “second tier” program perception, I think the law society report misses the point. I don’t think anyone perceives the LPP program itself as necessarily second-tier (alhough I note that prior LSUC experiments with similar programs – the ill-fated professionalism course from 2006-09 being an example – has not been positive. I believe that ultimate assessment of that course was that it was “worthless”). In any rate, it’s too soon to tell on that point. Rather the perception is that the STUDENTS enrolled in the LPP program are second tier – i.e., they’re the ones that employers have chosen, for a reason, not to hire.

    Now, that perception is, obviously, not true of every single LPP student. But certainly the LSUC report suggests that overall, it’s quite an accurate one. The bar pass rate for LPP students is much lower than for articling students (no doubt owing to the abundance of NCA students), the likelihood of getting called is materially worse, and the post-call employment prospects are materially worse. No doubt there are diamonds in the rough -as your anecdotes indicate – but, I’d suggest that they’re not indicative. In that light, Groia’s comment about second-tier lawyers is not wrong.

    I have some sympathy for the argument that the LSUC should have let the LPP run it’s course and defer it’s decision until next year. Certainly, I’d be curious about the long-term prospects of LPP graduates over 2 or 3 years post-call. They did have to do something about the financing of the LPP, though (as doing it on the back of articling students was never justified and speaks ill of the benchers who signed off on it in the first place).

  9. Jordan,

    The better solutionI is what Obama and a number of American lawyers and law professors propose – reduce law school to two years. They accept the student wisdom that in first year they scare us to death, and second year they work us to death and in third year they bore us to death.

    There are not enough articling positions because the business model of law has changed. Since the rise of law clerks and technology, many of the jobs students could do to earn their keep have vanished. So now the students have to ask a small firm to train them and pay them out of the firm’s budget. Many small and midsize firms simply can’t afford to do this year after year. We know that the law schools refused to train lawyers, that is, in any practical skills. So the law students come totally ill-equipped to contribute to earning income.

    If law schools were limited to two years, articling could be unpaid. Then there would be no shortage of articling positions. The students would save a year’s tuition, which at U of T is somewhere in the area of $30,000.

    Jan

  10. Jordan well done. The issue is what now. Has any serious thought been given to the LPP being an alternative to the last year of law school and allowing students who do the LPP to not have to article. I can hear the gnashing of teeth at the Academy. I would hazard a guess however that if that were implemented there would be a huge number of students opting for that alternative and somehow firms would get by without articling students. As to Malcolm’s point I believe that firms are hiring fewer students albeit my information is anecdotal.

  11. Mr Weir,

    Should the 2 year law school graduates still be entitled to a JD or should they get a new, different, degree? Say an ED for those of the male gender or those who profess same? A KD for those who profess the female gender; and an ID for those who haven’t the faintest idea who they are or why they went to law school in the first place? I mean, if one is claiming to know next to nothing when one graduates, then isn’t it a bit of a stretch to claim any sort of “Doctor” status; that is, unless we’re talking about the game played by 7 year olds?

    Still, if one starts from the position that most law students who have just graduated and who want to become practitioners, not academics know next to nothing after three years, then 1/3 less knowledge shouldn’t make a relevant difference.

    Are you seriously suggesting we return to the era where articling / clerkship was unpaid? Let’s go whole hog – or replacement animal for vegans, vegetarians, Muslims, Jews … and return to the era where prospective lawyers paid their principals for the privilege of being taught. Just like in school, of course.

    And, I suppose, we could equally abolish the right of one gender to work at all so long as it is appropriately supported by the other(s). Shall we vote on which it should be?

    DC

  12. I am hoping that the LPP will be continued in 2017-18. If so I will be part of it.

    I agree Jordan with this: “There needs to be another route into the profession besides articling, yet over the course of several decades of near-constant study, the law society has not come up with any viable alternative option other than the LPP.”

    I graduated with LL.B in 1988 after 7 years in the RCMP. Uninterested in the articling options that were available (or not), instead I became a Foreign Service Officer in External Affairs Department for the next 20 years. During the 1990s I took educational leave and graduated with LL.M in Legislative Drafting through the now defunct University of Ottawa/Dept of Justice program.

    I retired from Foreign Affairs and then joined the Canadian Army as a logistics officer. I reached mandatory retirement age in the military and now as a Veteran I am hoping for a next career as a legislative drafter/Legislative Counsel in Canada or internationally (in spirit of “life-long learning” and to “upgrade” my legislative drafting qualifications I have now almost completed the Post-JD Legislative Drafting Diploma from Athabasca University).

    Many or most legislative drafting positions require a call to the Bar as a selection qualification. Not being “young” or a “recent” law school graduate, the articling route to my being called to the Bar is more or less closed to me. Also, having had a successful non-lawyer career already, I would feel some guilt if I were to take up a scarce articling position that could have greater benefit for someone just starting out as practicing lawyer.

    The “alternative option” LPP is the ideal vehicle for people like me who are looking at a legal career that is not a “traditional” lawyer job. I note that the LPP has participants who are over-40 and who have post-graduate degrees already.

    I am anxiously awaiting to hear the Convocation decision next month. I will be very disappointed if this innovative and future-oriented program is cancelled.

  13. We owe Jordan thanks for having instigated a good discussion. I’m going to add a couple of comments to what I said earlier and to respond again to Jordan.

    The first with respect to the question of cost. I’ve already suggested that the cost of the LPP spread across all licensed lawyers may be relatively small but that that doesn’t justify an undue cost. Jordan says in response that the cost is reasonable at $17,000 per LPP graduate. However, given that a number of LPP grads are not passing their Law Society exams, I understand the cost per LPP licensee is something in excess of $30,000 with the cost for the Ottawa program being higher still.

    Jordan argues that these costs are not out of line with the cost of articling which Jordan suggests may be as much as $40,000 per articling student. I don’t think that is a plausible estimate given the median professional income of practising lawyers (say $110K or so) and the implication that the profession is spending in the range of $80 million annually for articling ($40k x say 1,900 articling students).

    In fact, I don’t think it plausible that lawyers are making a significant investment in articling for which they don’t see a return, whether by fees earned or longer term recruitment. If articling was significantly subsidized (all things considered) by law firms, I would bet that articling would have failed completely as opposed to having grown less quickly than demand.

    While there are problems with articling as compared to LPP (inconsistent quality being one), there are advantages. One (where the articling is good) is greater real world experience and exposure. The other is that the student is paid and that articling is economically win-win for the student and the employer without the requirement of material subsidy. It is for this reason that I doubt a good LPP (which we have) is a viable candidate to replace articling.

    I’m left where I was in 2012 which is that I don’t think that access to licensing should depend on the vagaries of the market. Absent an alternative, it seems to me that the case for the LPP remains strong subject only to the question of cost.

  14. For those of use for whom the articling situation across common law Canada still matters, I think it worth noting the apparent difference between the attitude conveyed by those parts of the profession to which Malcolm Mercer refers and those parts of the profession to which Jana Schilder referred. If we take Ms Schilder’s comments at face value, the approach taken by her law firm clients is summarised this way: “What’s in it for for me, financially, first, last and foremost where the answer is ‘nothing'”. If we take Mr Mercer’s comments at face value, the approach and answer is the opposite: “everything, for the firm and the student, both short and long term”.

    I’ll leave it at that.

  15. I’d like to see a path to licensing that doesn’t depend on the market’s willingness to absorb articling positions. The traditional articling model ends up limiting the supply of experienced lawyers down the road based on the demand for inexperienced ones on the front end. It also limits or denies graduates the opportunity to make it on their own through hard work and determination if they are unlucky and don’t manage to land an articling position because of the limited demand for these positions.

    What gets me is elitism inherent in dismissing the LPP as second tier, whether it is true or not. Maybe what the public truly does need is second tier lawyer. Because God knows they can’t afford first tier rates. Surely a second tier lawyer is better than no lawyer at all. It’s not like we are saving lives here.

    The attitudes displayed by lawyers sometimes makes me embarrassed to be part of the profession.

  16. I have plans to hire an LPP student for a work placement this year. I think the program is terrific as an idea, and am eager to see what an LPP student can do for me… and I have high hopes that the placement will turn into not just a job offer, but a career. Going through this process has helped me find out more about the program, and I’m even more enthused to be participating as a result.

    I am steadfastly against the overadmittance of young lawyers to an oversupplied profession. I think Ontario law schools admit far too many students who have no realistic prospects of a career absent an extreme entrepreneurial bent (which would definitely be better served in almost any other line of business.) But those graduates deserve a chance for admittance to the profession once they are graduated from our law schools; so I agree, this needs a chance to work!

  17. I suggest that a lawyer in the U.S., wasting his or her billable time reading this thread, would have been laughing from the start and aghast – except on a protecting one’s turf basis: we know that never occurs, right? – at the first sentence of the last paragraph of Mr. Burley’s comment. I expect many readers of this blog know how things work in the US: if you went to a qualifying law school and graduated, you’re allowed to write the state bar exam. If you pass, you’re entitled to practice law in that state. (I think that in many jurisdictions, to appear in court, you then need to get somebody already entitled to appear in that court to attest to your competence.)

    So, why do we have still have articling (or some equivalent) in common law Canada. Is it:

    1. because that protects the public by increasing the likelihood that some neophyte practitioners will be less incompetent than they otherwise would have been?

    2. because wannabe Canadian lawyers aren’t as smart as their American counterparts so need more training before being foisted on the unsuspecting public: after all, look how long it took us to accept the reality that having a JD is so much better than merely an LLB;

    3. or articling and its equivalents are the profession’s way of limiting new competition against already qualified and working members of the profession;

    4. all of the above,

    5. none of the above;

    6. something completely different.

  18. I have no doubt the answer is #3. While the profession likes to pretend the purpose of articling is to “protect the public interest,” it’s clearly just an articifical barrier to limit the supply of lawyers. The articling experience has no basic learning or practice requirements whatsoever – it’s left completely to the discretion of the firm and the articling principal. You can spend a year doing due diligence for M&A transactions, and learning nothing about practicing law, and yet still get called to the bar. I can’t see anything about the articling process that protects anyone. If the profession really cared about the public interest, they would have gotten rid of articling process and replaced it with something like the LPP long ago.

    It’s funny to hear lawyers say the law society has some sort of duty to control the supply of lawyers, lest there be more lawyers than the public demand for them. What they completely miss is demand is a function of the prices being charged for legal services and if other lower cost resources were available to the public demand would increase.

    It’s also funny to hear them say the law society has some sort of duty to protect students from themselves. If there too many graduates for the amount of work available, what of it? They are fully functioning adults – they can research the market, the costs and the risks of law school. Why should anyone stop them from taking their chances? There’s no reason to distinguish a law degree from any other educational pursuit.

  19. John Smith

    Assuming that is your name –

    You are entirely wrong about this much: if one is fortunate, one will have, and enjoy, a remarkably good, educational, articling experience. I say that even though I was not hired back by that firm. I was one of the fortunate ones. We weren’t rare back then. I’d be surprised if we are rare now, unicorns notwithstanding.

    DC

  20. I never said one couldn’t get a good, educational articling system. I have no doubt many do. What I did say was there are no basic practice or learning standards imposed by the law society. This is important to keep in mind when the legal establishment tries to claim that the purpose of the articling experience to protect the public interest. What I’m suggesting is these sorts of claims are bogus. While the profession will never admit it, it’s plain to see this is about insulting ourselves from too much competition so wages and fees can remain high.

    It’s why the law society is going to kill LPP.

    It’s also why the law society effectively killed ABS.

    I’m hoping someday we will finally have the courage to do what’s right – not what protects our bottom line.

  21. I have just published my blog on this, citing to both Jordan’s piece and to one of John Smith’s comments

    https://representingyourselfcanada.com/2016/10/18/a-legal-education-in-the-public-interest-the-legal-practice-program-and-access-to-justice/

  22. The committee has revised its report and now recommends extending the LPP for two more years:

    http://lsuc.on.ca/uploadedFiles/PDC-Pathways-Report-27-10-16.pdf

    Sincere kudos to the members of the committee: they asked for feedback from the profession, listened to it, and acted on it. Governance exactly as it’s supposed to work.

Leave a Reply

(Your email address will not be published or distributed)