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At Whose Expense? the Intolerable Human Cost of Articling

We know that there is significant discrimination and abuse in articling. We’ve heard the stories and we have the stats too. To cite just a small amount of recent information we have in Ontario:

  • Over 100 articling students responding to a 2017 Law Society survey reported unwelcome comments or conduct related to personal characteristics (age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation).
  • The Law Society’s Discrimination and Harassment Counsel (DHC) recently reported that it has observed a significant trend of complaints about abusive employment relationships – the largest sub-set of which involved articling students. The complaints it received included reports of being subjected to verbal abuse and threats; not being paid or being paid less than minimum wage; and bullying. The DHC received a disproportionate number of reports from students who received their training outside Canada and who are completing articles under the NCA process, or racialized students.

Others have previously written in detail about discrimination and abuse in articling (take, for example, the excellent previous Slaw columns by my Dean, Adam Dodek – here and here). It’s necessary to revisit now, though, as the question of what we should do with articling is yet again on the table in Ontario. The Law Society is currently consulting on several different options for its lawyer licensing process (my fellow legal ethics co-columnists Noel Semple and Malcolm Mercer have written recently in Slaw about this consultation – here and here).

To be honest, I used to be agnostic about the seemingly age-old question “Articling: Good or Bad?” But, lately, I can’t escape the feeling that we’ve hit the point where we can no longer justify maintaining it. It seems to me that there’s an intolerable level of bad behaviour and associated harm, along with little hope of change.

To its credit, the Law Society has taken concrete steps to address issues of discrimination and abusive behaviour in the legal profession. For example, it created the DHC to provide confidential services to those who have concerns or complaints about discrimination or harassment. It also introduced rules that explicitly prohibit harassment and discrimination. The DHC, however, has been in place for more than 15 years and there have been rules about harassment and discrimination for more than 20 years. Both the DHC and these rules are important but, clearly, they have been inadequate in eliminating the systemic problems in articling.

More recent actions and proposals by the Law Society are likewise commendable but of questionable efficacy. In April 2018, the professional conduct rules on discrimination and harassment were amended to emphasize the pre-existing obligations in this area and to take note of some legislative changes. Moreover, a special team that was formed after the Law Society received the results of the 2017 articling experience survey has recommended, in addition to these rule amendments:

  • Reviewing and assessing the Discrimination and Harassment Counsel Program
  • Enhancing marketing of Discrimination and Harassment Counsel and Member Assistance Programs
  • Developing materials for lawyer and paralegal candidates and Principals to more overtly address the issue of harassment and discrimination in the professions
  • Engaging with stakeholders and sharing best practices
  • Continuing to offer and develop relevant CPD Programs
  • Augmenting data collection processes to better track progress

In its consultation, one of the options presented by the Law Society is to continue the current model of lawyer licensing but with “enhancements”, which would involve, essentially, an attempt to better monitor the quality of articling and other work placements and a requirement that licensing candidates be paid at least minimum wage “wherever possible”.

These are thoughtful proposals and I can’t name any measures that seem to me to hold much more promise in “fixing” articling. At the same time, it is hard to believe that things will get measurably better, at least anytime soon. Things are bad despite having long-standing clear rules and a strong support resource. Why should we think that the passage of time and some additional guidance, monitoring, and study would materially change anything?

There are obvious and previously articulated responses to a call to eliminate articling on these grounds. The most common arguments I’ve heard relate to: (1) issues of causation; (2) concerns about discounting positive articling experiences.

With respect to causation, it has been repeatedly asked whether we can blame articling for the discrimination and other abuse experienced by articling students. This is a valid question given that we know there is significant discrimination and abuse in the legal profession outside of the articling process. And, it is true that although articling students experience power-differentials in relation to their principals and other lawyers, so too do other members of the legal profession including associates. This is a compelling argument on its face. I’m not convinced, though. There are specific aspects of the articling process that make it especially prone to abusive behaviour. The stakes are uniquely high – you can’t become a lawyer unless you successfully complete your articling and positions are limited (with an asterisk here to recognize that some individuals in Ontario choose the LPP instead of articling). These factors make it difficult to either leave or report bad behaviour. As Paul Saguil states more eloquently in a Canadian Lawyer article:

“[Articling students] are beholden to their employers…They need their employers to sign off in order to get their licence, and so it’s not surprising that during this period, a lot of people are experiencing things they don’t want to put up with, but still do because they need to ultimately get called to the bar.”

Further, although we do not have much comparative data (like, for example, exactly how much discrimination and abuse articling students face versus associates), the DHC has told the LSO that they are hearing about a trend of abusive employment relationships in the articling process in particular.

Moreover, we also know that, in addition to the discrimination that individuals face within articling, racialized students experience significant difficulty in simply trying to access articling positions. A previous Law Society survey revealed that 43% of racialized licensees who responded to the survey “strongly or somewhat agreed” that they had struggled to find an articling position or training placement, as opposed to only 25% of non-racialized licensees who responded. There are also numbers to back up these subjective impressions. In a 2016 Precedent Magazine article, Daniel Fish examined, among other things, the percentage of racialized students in the articling system compared with the LPP (18% versus 32%) and concluded that, although the causal reasons for this discrepancy are difficult to pin down, “one thing is clear: articling favours white students.”

I acknowledge that we only have circumstantial and incomplete evidence that the articling process itself creates and fosters discrimination and abuse. I think, however, viewed as a whole, the evidence we have is sufficient. A large number of articling students are reporting experiences of discrimination and abuse. We also have some empirical evidence demonstrating that these negative experiences are disproportionately present in the articling system and convincing structural reasons to believe that this is true. Further, we know that racialized students have a much harder time accessing the articling process. It strikes me that it is more than fair to say that the articling process most likely causes significant harm. If we have the option of stopping something that most likely causes significant harm, why not take this option?

Another set of arguments for retaining articling notwithstanding evidence of discrimination and abuse rely on the fact that many people report positive articling experiences. This doesn’t strike me as a strong argument. I mean, it’s great if you liked articling – so did I. Our good experiences don’t erase the fact that many others have experienced discrimination and abuse or don’t even get a chance to article. At some point, the risks associated with an activity become too high to justify that activity even if there are some positive outcomes. We seem to have hit that point and then some. We are dealing with a deep systemic problem, not a handful of isolated incidents.

No doubt, there will be some people responding to the Law Society’s consultation who support keeping articling and others who say it should be abolished. Personally, I’ve arrived at the place where I think the harm is outweighing the good, although remain open to being convinced otherwise by good arguments. I should be clear that I do not think that the above critiques lead to the necessary conclusion that the best way forward is to move to examination-only-based licensing (one of the options put forward by the Law Society). I’m inclined to think that there is value in the legal profession, as a community, formally participating in the training and mentoring of its newest members. It may be, however, that we are going to have to think more ambitiously about how this can best be done – “enhancing” the articling process as we now know it may not be enough and the alternative of simply funnelling everyone into the LPP program may not be optimal for other reasons.

I certainly don’t claim to have all the answers. But, there does seem to be one thing that is now beyond debate: given the evidence which we do have, there is an onus on those who want to retain the articling in its current form (or even in the proposed “enhanced” form) to explain why this is a good option in the face of significant and systemic discrimination and abuse. The legitimacy of the status quo is not a given, nor is maintaining the status quo a “neutral” response. The risks in choosing to do nothing and the question of who bears the negative consequences of these risks must be squarely reckoned with.

Comments

  1. Discrimination will not go away if we abolish articling. The Racialized Report is being implemented to start the process of addressing this discrimination. For those of us who accept that transitional training in a work environment is necessary in law as it is in other professions, the question becomes how best to achieve it. The current options for all but a few candidates are articling or the the LPP. Both streams are rated as effective by a strong majority of the candidates themselves. The biggest complaint from LPP students is that their placement is not long enough. The enhancements to the articling status quo that are currently proposed aim to identify and eliminate placements where discriminatory behaviour occurs or where the learning is limited or sub-standard. There may be more we can do by way of enhancements or to encourage candidates to report discrimination and harassment during or after their articles are complete. This consultation is an opportunity for all to make suggestions. We look forward to hearing from you.

  2. The discrimination and abuse starts in the Academy. Clean up your own mess before pointing the finger at the practical component of the licensing process please; clean hands are required for claims in equity.

  3. Why do so many law professors rail against articling?

    Amy includes in her column the following quote:

    As Paul Saguil states more eloquently in a Canadian Lawyer article:

    “[Articling students] are beholden to their employers…They need their employers to sign off in order to get their licence, and so it’s not surprising that during this period, a lot of people are experiencing things they don’t want to put up with, but still do because they need to ultimately get called to the bar.”

    How about wording it this way:

    “[Law students] are beholden to their law schools…They need their law schools to pass them in order to go on to get their licence, and so it’s not surprising that during this period, a lot of people are experiencing things they don’t want to put up with, but still do because they need to ultimately get called to the bar.”

    Sigh. The only reason we have what is called an articling crisis is that the law schools bloated up immensely, dropped their academic admissions standards, dropped their graduation standards, and, with the students boomeranging from abroad, have been steadfastly spewing at the Law Society about double the number of students compared to before such that we have been calling lawyers to the bar for many years now at a rate that is five to seven times population growth. This is totally unsustainable, the law schools know it, and do precisely nothing about it lest too much of that lovely tuition and government grant lucre go aglimmering. Send out hundreds of students every year with $90,000.00 debts and no job prospects? Not our problem. Reduce the number of law professors and other staff?? Heavens no. Reduce the money flowing into the central administration coffers of the universities with law schools?? Heavens no. Teach as the highest priority lots of practical skills?? Only if forced or if trying to get a law school charter.

    One interesting difference between law school and articling is that the vast majority of law students have to pay not to learn practical skills while the vast majority of articling students are paid to learn practical skills. Hmm.

    All the while, as law schools slurp up hordes of unneeded law students, other fields cry out for students, including job-creating STEM programs (a problem exacerbated by left-wing politics driving out productive Stemmers), including medical students (an artificial shortage created by bean-counting bureaucrats who value their sinecures over patient care), even including trained chefs. One of my clients, an excellent restaurateur whose meals are scrumptious, is working herself to the bone because she cannot get quality chefs. She asked me, “Where are the chefs?” I replied, “In law school.”

    Every lawyer ever called to the bar of Ontario has learned to their shock that law school did not prepare them at all for private practice – the destination of the majority of graduates – it trained them to be appeal court judges. So said Robert Kennedy in the 1960s. So said I in the 1980s before I learned of his quote. So said countless other lawyers, arriving at the same conclusion themselves from rueful experience.

    The best training by far – nothing else is remotely close – for a career in private practice is experience at the elbow(s) of experienced lawyers. Articling is the only way for most people to gain that experience initially, and the best way for all to gain it, best followed up (sad to say, by an ever-decreasing percentage) with several years as a junior to a senior.

    Several blunders have led to this point. The Law Society blundered when it reduced the articling year to ten months (effectively 9 1/2 months) as that made it harder for small firms who typically hired one student a year to continue to hire one student a year (no overlap, empty office for the equivalent of one year out of five). The law schools blundered, at least where articling is concerned, when they opted to value money money money over the public (and their students’) interest. The debt-ridden government blundered when it decided (through negligence or lack of interest) to continue to throw increasing amounts of its scarce education resources into the voracious maw of law school enrollment at the expense of needier programs.

    What is needed is to address the blunders, not to kill the best method by far of ensuring that new lawyers have been exposed to the practical skills they will need in private practice. Addressing the blunders is harder than killing articling, but the former is far better and the latter is a lazy cop-out.

    All sorts of arguments are coughed up to kill articling. One, the Americans don’t have it. Golly. The overall American legal training system (and aftermath) is a prime example of what NOT to do.

    Two, some articling students have bad experiences (of which some are truly bad (shame on the perpetrators), and some are just claimed to be bad (shame on the claimants)). Golly. Articling is not perfect?? What a surprise. Will the replacement experience (non-experience) be perfect?? Maybe in Cloud Cuckoo Land. Is law school a perfect experience? Do bad things never happen in law schools? Has a professor never ‘had relations’ with a student? Made an inappropriate comment toward a student? Been unfairly targeted by a student?

    If we are exhorted to abolish articling on that basis, we ought then to abolish law schools, and, for that matter, the entire practice of law, and all of society. Or we can work to improve things.

    Instead of throwing out beneficial things, why don’t we apply our minds and resources to addressing the real, society-wide problems generally, not to making empty and harmful gestures such as abolishing something that works exceptionally well in meeting its intended, and needed, purposes?

    The truth of the matter is that rigorous studies have consistently shown a very high rate of satisfaction with the articling experience. Any problems with articling are no different from similar problems in other spheres of life, and none of those problems can be fixed simply by eliminating articling.

    Three, articling must go because some students experience discrimination. Define it. In a world where you can be accused of all sorts of false and inapplicable calumnies for simply asking where someone is from, it is a wonder that everyone is not either a card-carrying member of the victim industry or a vicious, insensitive victimizer. One victim industry warrior, paid money by the Law Society to lecture the benchers, said that you can ask where someone is from provided you ask it the right way. Oh? What is the ‘right’ way? From where are you? Wherefrom art thou? You where from are? What sort of vegetation did you notice when you were a kid?

    I decry to the core of my marrow incidents of real harm. My lovable and loving cousin was brutally murdered. Someone I know was raped. Someone I know was stalked to point of having to get a restraining order. These are awful things and I shudder when I think about what they went through. But I also decry attempts by some to turn innocuous things into thought crimes. I decry the desire of some to be as fragile as possible, to the point where they will never become well-adjusted, fully productive members of society, and who seek out comfort for perceived wrongs that, objectively, are but puffs of wind.

    I delight in the shrinking of the world and the wonderful and amazing varieties of what are nevertheless essentially identical human beings from everywhere. Can I not ask them conversationally to give me a lovely mental holiday (and make themselves even more interesting to me) by telling me a little about life in their country of origin?

    Two of my three bright, lively, beautiful granddaughters are India Indian, Portuguese, Celtic and Anglo-Saxon. Is that like saying Some of my best friends are gay? (Some of them are!) All humans, that is to say ALL HUMANS, are 499/500s genetically identical to one another. Male/female/other, straight/gay/other, black/white/brown/all, tall/short, large/thin, genius/left-wing politician (wink). All 499/500ths identical genetically speaking. What is there to fuss about?

    It is human nature to address a problem by penduluming well past the point of sensible redress. Eventually, the pendulum does swing back to the sensible point. I look forward to the day when we get there because, if we cannot ask where someone is from, we are certainly not there yet.

    Why do so many law professors rail against articling? One reason, I think, is that it would remove the most visible harmful consequence of law school bloating (ie, too few articling spots for the graduating hordes) and thus turn the spotlight of blame away from the schools, where it most certainly belongs.

    Law professors who truly wish to redress the articling issue should engage in studies of optimum numbers of law graduates per capita in the public interest. China, with one lawyer per 50,000 people, clearly has a problem of too few lawyers per capita. But Ontario, with one lawyer per 236 people, and the US, with one lawyer per 289 people, clearly have problems of too many lawyers per capita. Both extremes badly hurt a society. I think that probably the right ratio is similar to the ratio used by the dentists: one per thousand, but would be interested in the findings of proper studies.

    So there’s a publish or perish challenge for somebody during a law school sabbatical!

  4. Further, no one denies that things can be better. Everything can always be better and I, like most people, never fail to favour effective, forward-thinking means of improvement. Fortunately, things are getting better all the time and at an increasing rate. The stats and observation bear that out. Here in Ottawa, we have the fortune of regularly dealing with lawyers from a very wide range of backgrounds. You name the broad background, ethnic, religious, gender, firm size, and we’ve got them and in numbers.

    Another stat bears some discussion. Amy refers to the fact that LPP students are 32% racialized compared to 18% of articling students. I don’t like that. No one likes that. But it is not as bad as it looks. There are several subsets that produce somewhat skewed numbers, but no one subset is very large. Their impact results from there being a collection of subsets.

    To wit, part of the 14% difference is related to language skills, a harsh reality maybe but not based on discrimination other than choosing people who can more readily communicate with the client base – a purely economic and not unreasonable consideration for many firms.

    Part of the 14% is related to friends helping out their friends, as when a partner in a firm hires the daughter or son of a classmate. That is not discrimination either. That’s friendship, the very same kind of friendship that all groups benefit from in one form or another.

    Part of the 14% is related to a discounting of some foreign law degrees. Nothing wrong with that in some cases. When at least one large foreign common law school will take you with below average undergraduate marks and no LSAT (ie, no demonstrated affinity for the kind of thinking useful to a career in law), and everyone passes, it is not unwise to be leery of some foreign law degrees.

    Thus, a not insignificant part of the 14% gap is explicable by non-nefarious tendencies or reasonings on the part of the hiring principals. For sure, some of the explicable gap and all of the rest of the gap is a problem that no one likes, but it cannot be solved by vaporizing proven and useful programs such as articling. Instead, we would be far better off showing an ever-shrinking element of the profession just what they are missing out on by not diversifying their firms. Statistically, immigrant groups do better than the more complacent ‘already here’ groups. The former try harder, and are more entrepreneurial (someday, they will be more complacent too – human nature). If firms do not get with it, they greatly risk becoming less and less competitive, and more and more moribund, as they miss out on tapping into very dynamic and growing sectors of society. I even have a slogan: Diversify or Die!

    Lastly (?), and with great respect to those whose intentions I know to be the purest, I do not think it is helpful to use such hyperbolic terms as ‘intolerable human cost’ when referring to something like articling. Articling is not a gulag with wicked, baton-wielding guards lurking in every hallway and skulking outside every door. The vast majority of students are treated well, are paid to learn with little or no economic benefit to many if not most principals, derive invaluable experience resolutely denied them at law school, often while learning useful things that they do not even realize they are absorbing, and, as a result of the whole journey, are far better prepared for practice than what any more classroom time and exams would ever give them.

    With great respect, the use of such epithets to castigate the whole class of well-intentioned and demonstrably good and beneficial principals does not advance the debate.

  5. Shouldn’t have said lastly! Three quick things:

    One, I want to add my voice to those who have commented elsewhere that they had excellent articles. Mine were wonderfully educational and beneficial. Even though I left the firm after three years practicing there, my principal and I have remained great friends to this day. Further, I cannot think of a single classmate whose articling experience I am aware of who did not greatly benefit from and value his or her articling experience. As I said earlier, the surveys have routinely showed over many years that the vast majority of students have had positive experiences.

    Two, the old bar exam materials (and lectures) were fantastic. They helped me avoid bothering my post-call employer (who had been my articling principal) every hour of the day. The bar ad courses were taught by local lawyers who gave us the nitty-gritty. Invaluable!

    Three, I think the current model of law school theory teaching (which I loved by the way) should be reduced to two years. That’s plenty, believe me. The third year (ie, eight months), which would occur in the same law school premises, should be turned over to the Law Society and used to teach the equivalent of the old bar ad courses and more. The first two years could be taught by law professors, and the third year would be taught only by practitioners. Then, yes, a year of articling would follow to learn how to put the theoretical and, more importantly, the practical teaching to good use. The bar exams would follow at the end of articling, partly as a way of seeing how long you can retain your learning and partly as a way of seeing how well you put it all to use. You would then take a well-deserved and probably overdue holiday, during which fortnight or so your exams would be marked and your call date posted.

    That would save students a lot of money, expose them to the necessary theoretical side of the law, expose them to the necessary practical side of the law, expose them to putting all that learning to busy, daily use under the watchful eyes of mentors who don’t want them to cost them a negligence claim, and render the calls far better prepared than they are now, and at less cost.

    There could even be a stream, similar to France, into a separate third year of more theory and little to no practical work for those students with zero interest in private practice but who desire only to be academics or other non-private-practioners.

    Not a new idea, but the best one out there.

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