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.