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What Actually Goes on in Articling? Ethical Obligation of Regulators . . .

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?

Comments

  1. As the articling student ambassador for the OBA from 2010-2011, I received dozens of unsolicited “reports” by articling students of the type of abuse you note above, many of it from complete strangers.

    The greater the scarcity of these positions, the greater of risk for abuse. We know that hardly any of these are ever reported to the regulator, and next to nobody takes actual legal action out of fear of repercussions.

    The fact that such widespread abuses occur in the industry is really a condemnation in many ways of the membership of the bar. But you’re also 100% correct that the regulator then becomes complicit when requiring this process without adequate or effective oversight.

    I still value what articling can provide to candidates in the form of training. The problem is that most of this potential is for the vast majority of candidates still a hypothetical one, and for too many, the experience is enough to sour them on the law forever.

  2. I could not agree more.

    Looking beyond the abuse, very little research has been done on whether articling is accomplishing much in the way of preparing students for the practice of law. What is the evidentiary basis that the articling process, which is open to the abuse that Adam and Omar reference, enhances, or even speaks to, the competencies articulated by law societies for entry to the profession?

  3. Adam, thank you for highlighting this important issue. We know there are concerns with inconsistencies in the articling experience and the Law Society assists and supports candidates who approach us for help with the types of difficult and uncomfortable situations you raise.

    We work with these candidates to help them understand their options, assess the placement, the firm, the supervisors and we mediate solutions. We also make them aware of other available supports, such as the Discrimination and Harassment Counsel, the Member Assistance Program and Complaints Services. In cases where there are significant concerns, an articling principal is removed from the program. These are serious and complicated issues and we take them very seriously.

    Your blog post underscores the need and the purpose of the Law Society’s Dialogue on Licensing. The discussion groups we will be holding across the province this spring, will enable us to hear first-hand from the profession about the realities, challenges and opportunities of the entire licensing process – including articling.

    Gathering as much input as we can will help us to develop a long-term sustainable licensing process that is consistent across the board – so that everyone who qualifies has access to appropriate licensing experiences that support the expected skills development. The information we receive will be complemented by additional data collection and survey work.

    We encourage members to register to attend one or more of our discussion groups and to subscribe to our Dialogue on Licensing mailing list at http://www.lsucdialogue.ca.

    I hope you will encourage your students and colleagues to attend these discussions. You are all a vital part of this dialogue – which will shape the future of our profession.

  4. Thank you Paul, Omar & Peter for your thoughtful comments. I second Peter’s encouragement to folks in Ontario to participate in the dialogue on licensing.

  5. Over The course of a lengthy conversation with several accountants today, we got on the topic of articling in the legal profession. When I told them that there is an ongoing conversation in the legal profession about the value and length of articling and that there aren’t enough positions for those who want to article, they were surprised. I was told that in the accounting profession, there are surplus positions to article, whether in firms or in-house and that the 30 months in articles is viewed as a necessary component of training.

    It makes me wonder why we keep having this conversation in law and why they’re not having it in accounting.

  6. As someone who has started looking for an articling position, all I can say is that I’m worried I won’t find one for whatever reason.

    On this note it frustrates me to no end that essentially to become a lawyer I will have to work in a firm whatever that firm may be. Whether I want to work in a firm is irrelevant. it takes all the power away from me.

    It’s high time that the articling requirement be set aside or integrated in the law school curricula itself such that the profession, so the artificial ceiling is lifted.

    Of course, this won’t happen at least in a meaningful way because lawyers, much like most other professions, aren’t likely to vote against their self interest. And so, it will continue in silence.

  7. Thank you Adam for shedding light on this issue. I believe articling is no longer a sustainable model for licensing lawyers for the issues that you presented in the article and in the readers’ comments. Why do we continue to talk about this without strong empirical research? I think the LSUC is looking for a different answer to articling besides abolishing it.

    I’ve heard many stories about the abuse suffered by articling students and articling students working for free or grossly underpaid, not just in Ontario but in Atlantic Canada and British Columbia. I don’t think people realize how detrimental this is for young lawyers. Articling is the first step in a long career of law and to start in this way is disheartening. I know young lawyers who decided to leave the profession because of their poor articling experience. I’ve been trying to write about this for years but young lawyers are afraid to come forward because of stigma. These are very serious issues that need to be addressed.

    The reality is articling is a broken system that is no longer sustainable. Time to move forward.

  8. Clearly an empirical based review of the process would be a good idea. However, if you speak to lawyers who have been successful and are generally content with their lot in life, I would expect most, if not all, will be able to point to some of the very strong mentoring they received early in their career including during articling. The articling process provides at least a useful structure for providing that early mentoring. Of course, what actually happens during articling (and the first couple of years of practice – I see very little difference in terms of the concern Law Societies should be showing to it) depends a lot on individual lawyers and law firms and it may very well be the regulators need to show more leadership on that front.

    The conversation, however, should be concerned with how the system can encourage and support the type of mentoring that is needed for young lawyers to become successful (and hopefully relatively happy) more senior lawyers. With or without articling.

    That said, I also think it is high time for the Law Societies to undertake a similar empirical based review of the role of law schools and the format by which they provide legal education. At this point in time, law schools are the first gate keeper to the licensing process. They are extremely expensive, carry with them many of the same complaints leveled against the articling experience and similarly the empirical supporting evidence for their role seems lacking. Dropping even a year of law school (as a random example) would meaningfully reduce the financial pressures on young lawyers.

    It is likely that a comprehensive review of the entire system would show there are better ways for the law societies to ensure we are licensing lawyers. But the review probably should extend beyond only articling.

  9. Require everyone who wishes to practice law in Ontario to take the Ryerson Law Practice Program and abandon articling altogether. In short create a level playing field with equal access for all qualified law school graduates.

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