The Inconvenient Truth About Articling

Last week, the Law Society of Upper Canada’s Licensing and Accreditation task force delivered its Interim Report To Convocation [PDF] on the province’s bar admission scheme. I think it’s a groundbreaking report, brimming with indisputable facts and uncomfortable choices about the state of the current system and the urgent need to reform it. Other reports have come and gone, but I think this one will leave its mark.

The main report is 44 pages long, followed by an additional 152 pages spread out over 10 appendices. This is what the report, to summarize briefly, says:

    1. The task force recommends the abolition of the current Skills and Professional Responsibility Program from the bar admission process in Ontario.

    2. The task force offers three alternatives to the current articling process by which lawyers ostensibly receive sufficient practical training to enter the practice of law. These are:

    (a) make it extremely clear to all current and prospective law students that the law society does not guarantee articling placements, and accordingly cannot guarantee that a law graduate can become a practising lawyer.

    (b) set up or certify a parallel Practical Legal Training Course that provides law graduates who could not obtain articles the chance to earn an equivalent certification in practical legal skills training.

    (c) Abolish articling outright.

The task force makes no recommendation concerning these three options — it offers pros and cons of each — but it makes quite clear that the status quo is not sustainable

The task force lists a series of external factors that have driven it to these conclusions, including a rapidly building wave of new law graduates on the horizon, a new emphasis on skills development in law school curricula, the dwindling willingness of lawyers and law firms to participate in the process, and the law society’s own practical constraints. As a snapshot of a profession on the brink of change, you could hardly ask for better.

I decided to put together a running commentary on the task force’s report. The first section, which focuses on the Skills and Professional Development Program, I addressed yesterday on my own blog. Today, I’d like to focus on the second and higher-profile section of the report dealing with the articling process. This won’t be a blow-by-blow account of the report, but I do recommend you read the whole thing. This article will simply touch on some of what I regard as the more relevant and noteworthy paragraphs in an altogether remarkable document. Here we go.

83. The Law Society’s articling program has been an established part of the licensing process for decades. It reflects the transition from the earlier legal education system that was predominantly an apprenticeship system to the university model that replaced it. It has provided students-at-law with an opportunity to experience and learn about the practice of law in a relatively risk free context of supervised law firm placement. In the Law Society’s current licensing process the articling term is 10 months. Candidates may begin articling at any time after the end of the skills and professional responsibility program.

84. Unlike the medical model of education, however, articling is not interwoven into the framework of legal education. There is little direct link between the education candidates receive during law school and the “clinical” component that is articles. The profession has long viewed the articling program as a bridge between the two worlds of education and practice.

Just setting the stage here.

90. [I]ncreased law school enrolments, possible establishment of new law schools, increasing numbers of internationally trained candidates [are] problematic for the articling program…. [I]n a system that appears able to place approximately 1,300 articling students in a stable economy, it is likely that the number of candidates seeking articles in 2009 could be approximately 1,730. This does not reflect additional candidates that would come from any new law schools.

To put that in its proper perspective: in 2001, the number of new applicants for articling positions was just 1,247. The system is being overwhelmed.

97. To assist its consideration of the issues surrounding the articling program, the task force has identified what it believes to be the goals of the program:

a. To provide law school graduates with exposure to certain defined practice skills in a professional environment in a consistent manner across articling positions.
b. To provide law school graduates with exposure to professional responsibility and ethical issues in a professional environment, in a consistent manner across positions.
c. To provide law school graduates with the opportunity to evaluate practice environments for the purposes of subsequent professional life.
d. To fill law school gaps in law students’ development as professionals.
e. To facilitate the transition to sole or small firm practice.

If you didn’t see “hone their QuickLaw skills noting up cases,” “undertake due diligence on reams of paper in a drawn-out discovery process” or “serve a Statement of Claim on an elusive defendant” on that list, it’s probably because the articling process ostensibly should involve these sorts of things only occasionally.

Articling is apprenticing: learning by watching, listening, asking and, most importantly, doing. It’s a superb notion in the legal profession and, in the days when it was working (not within my living memory), it helped cement the law’s reputation for mentoring, collegiality, and generosity of time and spirit towards newcomers.

Taking on an apprentice is a serious task, because you’re assuming responsibility for helping the new recruit learn to do what you do. Some articling principals take the apprenticing responsibility seriously, and I know a number of lawyers who testify enthusiastically about the tremendous training they received during their articling year. But many articling principals don’t, or can’t, do the same.

I don’t think it’s because we’ve become nastier people. I think it’s primarily because articling, in the form laid out above, simply doesn’t fit the business model most law firms use. Law firms – especially the large urban firms that offer most of the articling positions in Ontario – are not genial partnerships where new arrivals are tutored and mentored. They are businesses, they operate in an increasingly rapacious environment, and their compensation and promotion systems don’t reward the development of younger talent.

Most law firms, I think it’s fair to say, don’t even train their associates and junior partners especially well, let alone newly graduated quasi-lawyers. Now, with clients increasingly demanding of higher-value performance and partners equally demanding of profit-per-partner growth, mentoring and training has become largely an optional extra. In large law firms, new lawyers are worker bees, not apprentices. That simple fact alone makes most of the goals set out in Paragraph 97 unattainable in the current environment.

102. The task force has identified three possible ways to address the issues the articling program is facing. None of the options is new. The 1972 McKinnon Report addressed some of them. Other jurisdictions, particularly in the United Kingdom and Australia have adopted some of them. Perhaps none of them is without criticism. But the task force is convinced that something must be done beyond exhorting the Law Society to try harder to fund more placements and improve quality. Something more fundamental must be done.

This is, if I may say, an unusually blunt and honest admission of a couple of salient facts: (a) the articling system is not working well (and figures to work less in the near future, given the reasons summarized in paragraph 90) and must be replaced, and (b) each of the suggested options has its flaws too.

I highlight this paragraph because we need to accept that whatever solution the law society eventually accepts is going to be imperfect. The hope is that it will be less imperfect than what we have now. Not exactly a stirring vision, but a dose of reality is always a welcome tonic in this profession.

103. There are three options on which the task force is seeking comment and advice:
a. Continue the program, but make it clear that the Law Society makes no guarantees that candidates will find employment.

I’ll take each of three suggested alternatives in turn. As the report goes on to explain, this option is essentially the status quo, but delivered openly and honestly rather than with reluctance and embarrassment. The truth is that the law society can’t guarantee articling positions now, although it does twist itself in knots trying to place students through cajoling, wheedling and other persuasive methods.

As the task force observes, the articling contract is between a student and a principal; the law society is an interested bystander, but one without any power or standing to intervene. This first option would at least allow the LSUC to address the situation plainly, lose its guilt complex, and abandon any pretence that its mandate of governing the profession in the public interest includes job-hunting services for new graduates.

The task force goes on to note a related stark reality: among those students who don’t obtain articles, certain groups are overrepresented, including aboriginal students, those with disabilities, and francophones, not to mention internationally trained students. If the law society chooses to step back from its current role of equity advocate in articling, “the profession may be increasingly uncomfortable with the consequences,” says the report. Nobody has a good answer to this question yet, but one will have to be found. Still, there’s one more thing that should be noted here in passing.

There are a lot of possible reasons why a newly graduated lawyer can’t find articles. He might, as noted above, be a victim of overt or covert discrimination. She might have difficulties with the standard interview process, upon which so much of the subjective hiring decision rides. He might simply be unlucky — I have a friend who’s now a very successful litigator for a Toronto boutique who was shut out of the articling process at the time. But there is another group that is heavily represented among those who don’t get articles: those who aren’t really all that qualified.

Every graduating class has a bottom X percent who performed poorly compared to their classmates. Their law degree is valid, but their transcript contains a lot of consonants and no vowels. Yes, some very good lawyers didn’t do well in the classroom setting, for a variety of reasons. But as a general rule, if your academic record is poor compared to your compatriots, you won’t get a lot of job offers. That’s the marketplace at work, and it has never been more competitive than it is today.

If the law society chooses this recommendation — and for my money, I think that’s the likeliest outcome — we might be able to more easily accept that one of the things the articling process does is separate the wheat from the chaff, however harsh that might sound. The sooner that reality is discussed openly in the profession, and the quicker it filters back through the law schools and into the pre-law community, the better for all concerned. A law degree is not a license to practice law.

b. Accept that if there is to be an apprenticeship requirement, the Law Society should take responsibility for all candidates having an opportunity to qualify; develop an alternative stream for those unable to find a placement.

This is the most interesting option of the three, and if the law society is feeling sufficiently ambitious, might actually be the one I favour most. It’s based on an Australian model called a Practical Legal Training Course (PLTC), an alternative to articling for those who can’t land a clerkship with an employer.

In Victoria, for instance, the PLTC runs 31 weeks, 9 to 5 weekdays, and provides students with the requisite knowledge, skills and ethics training that they would (supposedly) receive were they articling. An added bonus is that the course can be taken online, a huge benefit for students in remote location or with families or jobs. PLTC graduates are immediately ready to practise law. Sounds pretty good, doesn’t it?

Well, you can already guess the drawbacks. Numero uno, from the student’s point of view, is that you pay to take the PLTC, whereas you get paid to article. That is a not insignificant obstacle, especially as the cost of a legal education continues to appreciate in this country.

Another problem is that even an unsuccessful articling stint provides students with contacts, networks, potential mentors — “a foot in the door,” as the task force puts it. The PLTC introduces you to full-time instructors and other unsuccessful articling applicants, but no one who can eventually help get you a job.

A third issue is that, as the task force readily admits, the Law Society of Upper Canada is in no position to set up a PLTC, financially or otherwise: this would have to be a private-sector solution. I actually think this would a tremendous opportunity for an innovative law school or bar association, but innovation has never been especially overabundant in our profession.

These three objections alone might well be enough to scuttle the plan, but they don’t touch on the most significant problem: a PLTC certificate would be the equivalent of a scarlet letter for future employers. It would create a permanent two-tier system of new lawyers: those who could get articles and those who couldn’t, and the latter group will always be regarded differently and even suspiciously at the interview table (not to mention, of course, clients).

Morale among PLTC enrollees would almost certainly be low — high-achieving law students relegated to the professional equivalent of summer school would be deeply discouraged, and many might opt to abandon law altogether rather than go through what could feel like a humiliating experience.

The task force makes encouraging noises about actions the profession’s leadership could take to buttress the PLTC’s reputation, and the Australian example shows that it can work. But there’s also an old saying about a sow’s ear and a silk purse, and I expect that this country’s legal culture would not be able to transcend that attitude.

It’s too bad, because there’s one thing about this program I really like — it might be the best way to train new small-firm lawyers and solos. The task force notes elsewhere in the report that more than 70% of all Ontario articles take place in the Greater Toronto Area, most of them in large firms.

But 32% of all lawyers in Canada are in solo practice, with an additional 33% in firms of 2-10 lawyers. Only 18% of Canadian lawyers practise in firms of 51 or more lawyers. The articling system, by default, is supported by Canada’s largest firms, yet the legal and cultural training they dispense to their students will be directly relevant only to a small percentage of lawyers called to the bar. If you start off on Bay Street and end up in Smiths Falls, your articling experience will likely have added next to nothing to your ability to sustain a good practice.

One of the goals of the articling program, as set out by the task force above, is to “facilitate the transition to sole or small firm practice.” You’d be hard-pressed to argue successfully that the typical articling experience in Ontario does anything of the sort. But a PLTC might just be the ticket. If the course were set up with an emphasis on helping new lawyers to open their own practices or operate in very small partnerships, it could provide training on precisely those things that solos need to know and that big firms don’t teach during articles: financial management, overhead costs, marketing, business development, client relations, and much more.

The PLTC could become a favoured option for new graduates with an entrepreneurial bent who don’t want the big-firm life, but do want to be part of the two-thirds of all lawyers in solo or small practices. Yes, it will cost them more money on top of their law school tuition, but they intend to be businesspeople, and there are numerous large institutions falling over each other to extend credit to small business. The ancillary benefits — helping achieve the law society’s stated aims to assist lawyers and promote access to justice outside urban centers, among others — are also clear.

And who knows? If the PLTC is truly successful in delivering top-notch training, then even some students who are offered articling assignments might nonetheless choose to attend the PLTC, to give them a head start on learning to be a successful lawyer. And if that ever happened, those law firms still offering articling positions might be motivated to upgrade the quality of training and mentoring available to students. A little competition in the effort to attract and train the best new lawyers could be just what this profession needs.

The PLTC is far from a perfect solution, but if the right private-sector partners could be found — and if, as the task force observes, “a significant shift [occurs] in the way in which the profession and the Law Society approaches and thinks about practical training” — I think it would really be worth a shot.

c. Abolish the articling requirement.

And here we are at Def Con 1. The task force notes the irony that while Ontario contemplates abolishing articles, many American states look longingly at the Commonwealth articling system as a better way to transition new graduates into the practice of law (though none has yet followed our lead in this regard).

The report doesn’t have much to say about this option, beyond observing that the ramifications for such a move would include public doubts about the competence of new lawyers and renewed scrutiny of the law’s self-governing status. That alone would probably be enough to make Convocation turn and walk rapidly in the opposite direction, even though either of those two outcomes could feasibly materialize if the articling system goes unreformed.

I don’t get the feeling the task force much likes the idea, and I can’t see the law society taking such a bold and irreversible step — not yet, anyway. But, just as the Australian examples shows the PLTC system can work, so does the American example demonstrate that, with some modifications, this approach could work too.

The enormity of the change should cause us to approach it with caution, but we should not dismiss it out of hand without talking it through first. I will say this, though: abolishing the articling system would, within the space of five to ten years at the most, completely change the character of Canada’s law schools, like it or not.

139. In the task force’s view, further limiting numbers who may gain access to the profession is not a reasonable or indeed viable option, for myriad reasons…

One last thing before signing off: the task force adds a little obiter dicta about “numbers in the profession,” which is a nice way of referring to those lawyers who are already in the lifeboat turning around and saying “No more! Cast off!” The task force, rightly in my view, rejects any notion that the profession could or should try to limit the number of new graduates.

Among the very good reasons: law societies have no power over the law school admission or graduation process, and trying to erect barriers to entry into the legal profession would get the immediate and sharp attention of various state and anti-monopoly bodies. If your pipes are leaking, the solution is not to use less water; it’s to fix the damn pipes already.

The task force has given the law society an excellent blueprint for doing just that, openly expressing some uncomfortable facts about the bar admission process and all but demanding that the profession’s governing body respond with alacrity. It’s important to remember that there are no ideal solutions, and that whatever the law society eventually decides to do will be met with criticism, some of it legitimate. But we can do better than we’re doing now, and the task force deserves a lot of credit for steering the profession in the direction of this inconvenient truth.

Cross-posted at


  1. All this blather; why not simply replicate the English system?

    Abolish first degrees, LLBs only; one full year on a licensing course after receiving a Bachelor’s degree, followed by two years of articling mixed with training offered by Law Society-approved full-time instructors (online/university lecture theatre) who share equally of their knowledge and experience for the benefit of all trainees?

    Whereas presently it is a lottery whether anybody will (spend time and thus money) and a question of who will professionally, competently and sincerely train newcomers.

  2. Replace it with the -English- system? That would be BRUTAL. Why don’t we just destroy the standards of the entire profession?

    We should be looking to make it more like the American system (JD as opposed to LLB) and we ought to PREVENT new law schools from being accredited as well as preventing expanding the size of new graduating classes at existing law school.

    Your suggestion to further Brit-icize the system is so far off it’s not even funny. We aren’t in Europe and being a Lawyer ought to mean something more than just being some guy who took an LLB after high school.

  3. How will giving JD’s rather that LLB’s do anything for professional standards or competence? A rose is a rose is a rose.

    The idea that one should prevent new law schools or more law students sounds to me very much like the cry, “I’m safely in the profession; up with the drawbridge and keep everyone else out!”

  4. Well, our system of needing a BA to get an LLB, is like the US one designed to keep people out of the profession. The articling year is also designed to keep people out of the profession. Back in the day when having a law degree was not required to practice law, LSUC had a role as an educator, and hence the bar exam, and the articling experience was required. Now it has lost that role since we must also complete 3 years of law school.

    The articling year also serves another useful purpose, it is a contract of employment lasting 1 year, and hence after that year the employer is entitled to let you go, not to mention the fact that you can be paid a lower salary then you would if you were a fully accredited lawyer.

    John Swan is being naive if he thinks “up with the drawbridge” is not in perpetual effect wherever one turns one’s head. Like much of Canadian law the current system is a mix of USA and UK. I say choose one or the other. But, given the benefits to those already in the legal profession, I suspect we will keep the system as is.

  5. I think that John Swan said exactly the opposite of what he is alleged to have said. In any case, Frank, your ideas would be worth more if you gave your full name. At least have the courage of your convictions.

  6. Anonymous law student

    In response to the article, grades, vowels, and the like I know that many of the students who got positions in Bay street firms had B averages. In fact, I talked to one rep at a career fair from one of these firms, and she stated that they specifically look at people with B’s and B plus averages. I doubt it’s really about having vowels on your transcript.
    As far as I am concerned the whole legal system, at least in ON is rotten to the core. Let me explain why. The law school I attend in the GTA has poor career services. They say they are available, but they don’t really help. Students don’t need to have their resumes and cover letters checked. Come on people, everyone by the time they are in law school knows how to prepare a job application. What the law schools NEED to desperately do is get more proactive. Contact law firms, see if they have anything available, match student profiles, etc. If law schools want to truly do right by their students they should look at the job hiring/training system U of T has for its faculty of science, specifically engineering or computer science. They have a very developed job placement system.
    Now we get to the Law Society. The Law Society has released a report (I read it). It was an exercise into how not to change things. Their 95% placement statistic is very flawed. Why you ask? Because it only takes into account the law students who have not given up yet, and actually register with LSUC. Again, this is from one of their own representatives. Interestingly, though, the report skids around this issue. I suspect there is a sizable amount, who out of shame say nothing, do not find articling, lose hope, and never pay the $2200 registration fee for law students.
    Lastly, we get to the practitioners–a group to which the Benchers belong. When they evaluated the issue of articling in early 2009 there were many students at that meeting that disagreed with keeping articling. Yet they persisted. And why shouldn’t they? Articling serves several functions for the practicing body.It allows lawyers to act as if they are helping students. In reality very few take up articling students. Second, it allows law students to be paid low rates for what is effectively skilled work. Third, and perhaps most disturbing, it limits the amount that enter the profession to a far lower number than the ones that actually graduate from law schools each year. This helps keep rates up, but at the same time, it contributes to the lack of counsel for so many Canadians that can not afford such exorbitant prices. More and more Canadians go to Court solo. Ironically, as the law profession in general (I am sure there are exceptions) is squeezing more and more, its relevance will decrease for the average Canadian. They will simply be out of reach. Historically, when there is such a gap in a needed service, something else develops to replace it. The Law Society would do well to heed the signs.
    Bottom line: If you keep articling (it has its value) make sure that all the students who want to practice law have a FAIR chance of getting a position. Otherwise the whole thing is an exercise in hypocrisy. The Law Society, along with practicing lawyers, and law schools are not doing enough by the lowest measure. I give them all a failing mark.

    In case anyone is wondering why I kept my name anonymous–that’s to exercise my right to free speech. Law, by any measure, is not a free profession.