The Law Society of Upper Canada is undertaking (yet another) review of its licensing process. This is at least the fifth time that it has examined changes to the licensing process since 2000. However, in all of these reviews, the Law Society has never actually examined the actual working conditions of articling students. In this it is not alone. I am not aware of any Law Society in Canada that has done so. The Law Society of Upper Canada now has the opportunity as well as the responsibility to undertake such research.
There is both a policy imperative as well as an ethical imperative for the Law Society to examine the substantive working conditions for articling students. The policy reasons are obvious: in a world where we herald evidence-based policy-making, it is hard to explain how a decision can be made about the future of articling without examining what articling students actually do and without examining their actual working conditions. In the absence of evidence, we are left with anecdata, projecting one’s decades-old experience and generalizations.
So let me focus on the ethical imperative. Over the past few years, I have been contacted by students who were then articling and have been made aware of various ethical issues. I have also spoken with law school career services staff and with the Law Society Discrimination and Harassment Counsel. I have written about some of these issues: see “The Ethics of Articling”. That blog generated more comments than anything I have written for Slaw and it led to numerous articling students, as well as one parent of an articling student, writing to me privately to share their experiences about articling.
Some of the issues that have been reported to me, include:
- unpaid and underpaid (below minimum wage) articling positions, including so called “bus pass” articles;
- being terminated during articles without sufficient cause or recourse;
- sexual harassment;
- verbal abuse and harassment (what might be considered “ordinary” workplace bullying);
- failure to comply with human rights laws regarding the duty to accommodate;
- being asked to do personal errands such as picking up dry cleaning, making personal deliveries, shopping, etc.; and
- a general lack of supervision or lack of feedback.
I doubt that readers or Law Society regulator will be surprised by anything on this list. They have long been open secrets about articling in Ontario and probably elsewhere in Canada. To my knowledge, no Law Society in Canada has taken any steps to investigate, prevent or protect articling students from such abuses. This is because until now Law Society regulation has been largely characterized by reactive, complaint-based regulation. What articling student is going to make a complaint against their principal and jeopardize their job, their ability to be called to the bar and possibly their future? Better to just keep quiet, suck it up, finish your articles and get called to the bar. Hopefully move on.
Law Societies are ultimately responsible for the articling system. They must take responsibility or they will eventually be held responsible for such abuses – by the media, by the public, or by others.
So what should the Law Society of Upper Canada and other law societies do? They have the resources to conduct both quantitative and qualitative research with current and former articling students and with principals. They could and should survey current and former articling students about their experiences and also conduct qualitative interviews with law school placement officials, articling students and others.
Articling is not just a rite of passage. It is supposed to be a critical training and learning process on the path to becoming a lawyer. It should not be a site for exploitation. Law Societies as regulators and we as members have an ethical obligation to determine not only whether our must vulnerable members of the profession are getting the necessary training but are also whether they are being treated in a respectful and ethical manner.
If not now, when?