Over the summer months, the Law Society of Upper Canada has been conducting a Dialogue on Licensing to prompt information sharing, discussion, input and reflection on the future of the requirements for licensing of lawyers in Ontario. Based on materials disseminated as part of the Dialogue, a series of discussion sessions were held and summary reports released. Submissions were also invited through a broad call open into August. According to a late June update, the Professional Development and Competence Committee (PDCC) of the LSUC will spend the remainder of 2017 reviewing the input, with a view to producing recommendations in early 2018.
The premise of the entire Dialogue exercise, as evident in the words used by Peter Wardle, Chair of the PDCC, when introducing it some six months ago via a blogpost on SLAW, is that there exists a “need for change that is urgent and compelling.” As the PDCC ponders the input from the busy summer of consultation, it seems timely to draw attention to two shortcomings in the Dialogue materials and discussions: first, to what extent is there really a ‘need for change’? and, second, to the extent a need for change does exist, why isn’t the ongoing inaccessibility of justice being recognized as a more central concern? I address the first of these questions below, in Part 1 of this 2-part blogpost, taking the position that there is significant lack of clarity in the need for change. I address the second question in a forthcoming Part 2.
1. Is there a Need for Change?
A. What has been said about the need for change
In his SLAW blogpost, Wardle states:
There are many stakeholders across the legal profession in Ontario who believe that the current licensing process is unfair and unsustainable over the long term, and needs to continue to evolve.
The need for change is urgent and compelling. It is driven by three major factors: the number of applicants, financial sustainability and the transformation of the business of law.
In terms of applicant numbers, Wardle notes that there has been a 71% increase over the past decade (to almost 2400 in 2016), with an increasing proportion of foreign educated applicants (650 currently). According to Wardle, “[t]he licensing system needs to support this huge increase in volume, as well as the rapidly growing diversity in the legal experience and background among candidates.”
In terms of financial sustainability, Wardle focuses on the concern that if transitional training is mostly required to occur pre-licensing, as in the current system, “then the overall costs of certification as a lawyer can become a barrier to many applicants … [yet] … [t]ransferring costs to the membership or to the profession presents other challenges.” He goes on to note that the current funding arrangements for experiential training, whereby a universal fee is charged to all licensing candidates, regardless of pathway to licensing, “has led to dissatisfaction among candidates and from the profession.”
Finally, in terms of transformation in the business of law, Wardle refers to the ongoing impact of globalization and new technology that can be expected to spur new business practices that will not have been included in pre-licensing experiential training, with the result that licensing candidates will lack a key dimension of entry-level competence to practise law.
B. What is unclear about the need for change
i. Increasing applicant numbers
While it is clear that applicant numbers have increased significantly over recent years, there are some errors in the supporting information as to the source of this increase and, more importantly, it is unclear in what sense the current system cannot accommodate increases.
a. There has not been a “60%” increase in law school graduates; the real increase is around 25%
The supporting materials include (as part of Dialogue Topic 2) and make reference to a study of the Higher Education Quality Council of Ontario entitled Labour Market Trends and Outlooks for Regulated Professions in Ontario (‘the Labour Market Study’). Relying on the Labour Market Study, it is stated that “the number of graduates from Ontario law programs rose by 60% between 2007 and 2012 due to new programs and growth in the number of available spots in professional programs.” The Labour Market Study states that there were 1800 graduates by 2012. The bases for arriving at these numbers is unclear and other available sources of data indicate that they are wrong. For instance, in the 2011 Consultation Report prepared by the LSUC’s Articling Taskforce (available here), it was stated that graduate numbers had increased by 15.5% from 1152 in 2007 to 1330 in 2011 (see p. 10). For this to square with the Labour Market Study, there would need to have been an additional increase of 35% in 2012 – that did not occur. Similarly, the Ontario Universities Application Centre (OUAC) reports that there were 1231 registered first year students in Ontario law schools in 2004 (who would comprise the 2007 graduating class), which grew to 1350 in 2009 (who would graduate in 2012) and then to 1549 in 2016. It is inconceivable that 1350 registrants in 2009 became 1800 graduates in 2012. Moreover, the OUAC numbers indicate an increase in student numbers of 25.8% from 2004 to 2016. So, there are not, even five years on from 2012, 1800 graduates from law faculties, and total numbers have increased by nowhere near 60%.
b. The LPP/PPD program appears to have unfilled capacity
At any rate, it is not clear in what sense the current system cannot accommodate increases. In particular, with the introduction of the LPP/PPD program, there is a means for overcoming the shortage of articling positions. My understanding is that the current level of enrolment in the LPP/PPD program is below capacity. There is no information in the supporting materials that indicates any upper limit on the capacity of that combined program. Indeed, higher enrolment in that program would seemingly be of assistance in relation to the financial sustainability issue.
c. The labour market for articling positions is not necessarily the measure of the experiential training capacity of the profession
While the LSUC has undertaken numerous efforts to boost the number of available articling positions, the default logic remains primarily market-based in the sense that private lawyers who are eligible to serve as principals (and it is private lawyers who make up the vast bulk of principals) are entitled to decide for themselves, on the basis of their own private economic calculations, whether to devote any of their money, time and other practise resources to experiential training. If it is possible that these market-based decisions lead to an ‘underestimate’ of experiential training capacity, then maintaining this default logic amounts to a regulatory choice not to require that eligible lawyers contribute their experiential training capacity to the licensing system (or, as has been long proposed, that unwilling participants ‘buy-out’ any such obligation through a licensing levy).
d. The labour market for legal professionals is certainly not the measure of legal needs in Ontario
The supporting materials rely upon the Labour Market Study to note the following:
- “[D]emand for legal services is driven largely by economic cycles and population growth.”
- “[S]lowing demand for legal services and a rising supply of law school graduates have weakened labour market outcomes for new entrants to the profession.”
- “[O]ver the next 10 years [2015 to 2025], there will be 1.6 new licensed lawyers for every new practising position.”
These and other portions of the Labour Market Study and the supporting materials suggest an argument that there is an oversupply of newly licensed lawyers, which is only going to get worse. However, it must be emphasized that the Labour Market Study is only examining the extent of demand for legal services that can be expressed in terms of money-paid for services-rendered. In other words, it is only concerned with the legal needs of individual or corporate persons who can afford to buy legal services to meet their legal needs (and who choose to actually purchase legal services). The Labour Market Study ignores un-monetized legal needs or, in other words, the legal needs of individuals who cannot afford to buy legal services. Even if it is accurate to argue that there is an oversupply of newly licensed lawyers in relation to current monetized legal needs, this is not the only relevant calculation. Also relevant is the fact, as acknowledged elsewhere by the LSUC, that Ontario has a serious access to justice problem (see also the recent work of the CFCJ). That is, a serious problem with a failure to establish mechanisms for enabling lawyers (and paralegals) to meet the full extent of existing legal needs. The supporting materials contain no information about the estimated extent of unmet legal needs nor has there been any apparent attempt to re-calculate the supply/demand equation taking into account the legal needs of those who cannot afford to pay (or otherwise experience barriers to obtaining legal services).
ii. Financial (un)sustainability
There is no information in the supporting materials on the question of the financial sustainability of the current licensing system nor, more specifically, on the issue of whether and to what extent the current level of the universal licensing fee poses a barrier to participation in the licensing process.
To be sure, it can be assumed that a licensing fee in the (current) vicinity of $5,000 may pose a barrier to participation for some potential licensing candidates and may impose undue financial hardship on others. But it must also be noted that many licensing candidates have their fees paid for them by their articling employer. This amounts to an individualized subsidy from the profession, on top of the general subsidy that the profession also provides, via an annual allocation from the LSUC of $1m. It is not clear though that this is as much as the profession can or should provide by way of subsidy to ensure adequate accessibility to the licensing process. Certainly, the profession appears reluctant to provide any greater subsidy, but that is not the same issue. Moreover, the individualized employer-employee subsidy creates a relative inequality in the substantive burden of the universal licensing fee, which should also be taken into account. For instance, if the total current pool of subsidization funds were distributed on the basis of need, perhaps existing financial barriers to participation in the licensing process would be eliminated.
iii. Transforming business practices and entry-level competencies
It is generally accepted that globalization and technology, among other factors, are exerting considerable pressure on the business models of many areas of professional services, including legal services. The supporting materials provide some information on the approach taken by the LSUC in generating the current list of entry-level competencies. Concerns have been raised about the extent to which licensing should be geared to competencies or, at least, to the currently identified competencies. For present purposes though, I confine myself to observing that, if it is important for experiential training or the licensing process to equip new lawyers to spur or manage changes in business practices, the highest priority area of change to focus on might be business practise transformations that can improve access to justice for those who are currently most disadvantaged and most in need of legal assistance.
Which brings me to the broader issue of why the ongoing inaccessibility of justice is not a more central concern in the Dialogue … which will be addressed in the forthcoming Part 2.
In the meantime, to sum up for now, I would urge the PDCC to take a more careful look at the data and other arguments that purportedly justify the need for change.
 See, for instance, Arthurs, Harry W., “The Future of Legal Education: Three Visions and a Prediction” (2013). Comparative Research in Law & Political Economy. Research Paper No. 49/2013.