Special Convocation on the Future of Licensing

The Law Society of Ontario is holding a Special Convocation tomorrow to determine what the future of licensing will be in Ontario. The articling crisis, which can find its roots in trends over a decade ago, lead to the creation of the Law Practice Program (LPP) in 2013.

Of the 4 models contemplated by the Professional Development & Competence Committee, only two are being contemplated tomorrow:

(a) Current Model with Enhancements (Option 2): The two current transitional training pathways of articling and the Law Practice Program (LPP) and Programme de Pratique du droit (PPD) would be retained, with enhancements. These enhancements include:

i) paid articling and LPP/PPD work placements, in accordance with Law Society
requirements (required salary), with limited exceptions;
ii) measurements, audits or other forms of monitoring, to provide greater
oversight of articling and the LPP/PPD work placements;
iii) mandatory education and training for articling principals and LPP/PPD work placement supervisors.

(b) Examination-Based Licensing (Option 3): Candidates would be licensed as soon as they complete the barrister and solicitor examinations. Transitional training, such as the requirement to complete articling or the LPP/PPD, would be eliminated as a licensure requirement. The management of regulatory risk would shift to post-licensure, and would depend upon the career path of the new licensee. Candidates who choose not to practise law and licensees practising in a firm of six or more lawyers would not be subject to any additional requirements. Licensees practising as sole practitioners or in a firm with fewer than six lawyers would also be required to complete a new practice essentials course and would be subject to audit within their first few years of practice. Licensees who begin their careers in a firm of six or more lawyers or in the non-practising category and then move into sole practice or a small firm would also be required to take the course.

Although the option of having an LPP for all candidates was likely the most equitable and would best protect the public interest, at $15,000 a head, paid for by the candidates, it was not economically feasible.

There is very strong opposition from the practicing bar against Option 3, which would dispense of transitional training entirely, as there is a sentiment that law schools currently do not create practice-ready graduates, and that it would not be in the public’s interest or that of the licensing candidates to remove this training entirely.

Option 3 would shift the regulatory focus to newly called lawyers, primarily in small practice, through an audit-type process. The very nature of demographics in the profession means that the law society would then be disproportionately focusing on racialized and historically marginalized lawyers, while ignoring entirely those in large practice that have done little to contribute meaningfully to the challenges we’ve observed in the past decade. This option as proposed would accentuate the worst aspects of regulation by failing to support the licensees who need it the most, and disproportionately targeting them for discipline.

Legitimate concerns have been raised about the continued practice of articling and the LPP concurrently around the creation of a two-tiered system, and the reality that historically marginalized populations (especially racialized lawyers) are disproportionately represented in the LPP, even when they are domestic graduates. As I’ve pointed out in Precedent Magazine, this is in part because law firm recruitment is not entirely free of nepotism and soft biases that filter and exclude diverse candidates. The report to Convocation tomorrow reiterates this concern,

There is evidence to suggest that candidates from equality-seeking groups face barriers in obtaining articling positions. For example, two fifths of racialized licensees who participated in a survey conducted as part of the LSO’s Challenges Faced by Racialized Licensees Working Group reported that their ethic/racial identity was the most serious barrier they faced in entering the profession. Almost half of racialized licensees “strongly” or “somewhat” agreed that they had struggled to find an articling position.

Although LPP graduates have observed considerable employment success, in particular for in-house positions, the large law firms haven’t shifted to including LPP graduates in their recruitment cycles. Where they can be found in private practice, it is usually in the smaller context – the same practice setting that Option 3 would seek to extend regulation towards.

There was a significant concern at the time the LPP was created that this would simply shift a shortage in articling positions to a shortage of job positions. The Consultation Paper released in May 2018 seems to confirm this finding, but also highlights an even more significant issue,

As of April 2017, there were 50,673 lawyer members of the LSO. Forty percent of these lawyers were not actively practicing law. Further, of the 34,000 lawyers who were practicing, approximately 10,000 or 30% were performing roles in government, education, businesses and other settings where they may not directly advise the public.

Correspondingly, new lawyers have a similar career trajectory. Of lawyers called to the Bar between 2013 and 2017, approximately 30% are practising in settings where they may not directly advise the public (government or in-house environments and other sectors; some newly-called lawyers are not practising at all).

This diversity raises the following question: should the licensing process recognize
diversity of career paths?

It’s the diversity of career paths that have some suggesting that Option 3 is the preferred approach, and the report before Convocation tomorrow notes that the level of non-practicing lawyers is even more acute for recent graduates,

The Committee notes that of lawyers called to the Bar between 2015 and 2017, approximately 30 percent of new lawyers are not actively practising law.

That’s all new lawyers called to the Bar in the last 3 years, and these lawyers are likely not the same ones working in government, education or business. They are lawyers who are still scrambling for some form of meaningful job where they can apply their education.

It would be easy to blame the law schools, who increased their number of graduates by 60% between 2007 to 2012, from about 1,500 to 2,500 a year. However, during the past decade the number of National Committee on Accreditation (NCA) of the Federation of Law Societies of
Canada candidates, i.e. internationally-trained applicants completing the equivalency process, also increased by 250%.

Over the past 5 years, the same period when law schools increased their class sizes, the number of NCA candidates grew to comprise 30% of all licensing candidates, the same proportion who are not actively practicing law. By no means does this suggest that the NCA lawyers are the ones who are not in practice, but it does illustrate where some of the most significant growth has come from.

If the growth of internationally trained lawyers could be attributed to immigration trends, it might be more palatable, especially if they were to bring their diverse experiences and work histories to contribute to the bar. But what is even more notable is that 60% of the NCA candidates are Canadians who are returning to Ontario to obtain their license after acquiring their legal education abroad.

There are lots of reasons why Canadians could go abroad for law school, including entirely unmanageable tuition fees at home. The majority though likely seek this education because the highly competitive domestic standards for GPA and LSAT scores make it enormously challenging to achieve admission here.

Few lawyers trained in Canada would insist that grades and standardized testing are any measure of true intelligence or competence in the profession. Most senior counsel in Ontario readily concede that they would not have been able to get into law school under the current standards, and that the new batch of lawyers over the past decade are the brightest and most talented the profession has ever seen in the province.

Given the sheer number of applicants law schools face though, they have little recourse than to use some objective measure. Comparing reference letters or equally impressive volunteer experiences actually gives rise to greater potential for bias and exclusion. The quantifiable scores provided to them in the form of marks and exam scores by a third-party remains the best of several poor alternatives.

There is still one standardized test that all licensing candidates have to face – and that is the bar exam. It requires considerable study, and creates quite a bit of stress for candidates, but it remains the only true objective measure that all licensees have to face before entry. The general consensus among most licensing candidates and new lawyers is that the failure rates are quite low, and adequate preparation is usually a suitable precaution. The ability to take the exam again, if one of the very few who are initially unsuccessful, allows for more focused study, review and preparation, and my colleagues who experienced this were ultimately able to succeed in this respect.

This differs considerably from our American neighbours, who often have much more stringent pass rates for their bar exams. Most states require this approach, not only because of the disparities in education for their own domestic law schools, but also due to lawyers from other jurisdictions seeking admissions. There are no shortage of law schools in the U.S., but the bar exam remains the true standard for all graduates to demonstrate competence.

Without suggesting in any way that international legal education is inferior, as there are plenty of high calibre law schools with robust curriculums sufficient to prepare for practice in Ontario, there are admittedly differences between obtaining legal education abroad and obtaining it at home. Those differences can give rise to legitimate questions of the educational background of those seeking entry, and may affect their future job prospects. A more demanding bar exam would allow even these candidates the opportunity to demonstrate their aptitude as well.

The very nature of the changing demographics of those seeking entry to the bar requires a more stringent examination process to properly protect the public interest. Most importantly, it is still the best way under either Option 2 or 3 to provide an objective standardized requirement for admission into the profession.

You might – just might – find that some of these Canadians who are trained internationally outperform some of our own domestic graduates based on talent and hard work alone.

Imagine that.

Comments

  1. of course option 3 would work perfectly fine if the third year of law school was an optional LPP. No additional cost for students and good training for those that want to practice. But alas…

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