The Real “Articling Crisis”?

The Law Society of Upper Canada is again in the news. This time, the focus is on the recently released Consultation Paper entitled Addressing Challenges Faced by Racialized Licensees. An article in the Toronto Star has called the report “blunt” and characterized it as “containing disquieting findings.” Another piece in the Law Times, titled “Non-white lawyers feel alienated, report finds” details a variety of the report’s findings and highlights LSUC’s invitation for input.

This media attention is no doubt a positive thing. The Consultation Paper confirms what many have been saying for years: “racialization is a constant and persistent factor affecting licensees during entry into practice and opportunities for career advancement.” In a more proactive vein, the Consultation Paper also sets out a number of questions for the profession about how best to address the challenges faced by racialized licensees. These questions form the basis of LSUC’s consultation – it has invited written submissions until March 1, 2015 on the questions set out in the Consultation Paper and “welcome[s] additional ideas, initiatives or practices that may assist in addressing the challenges faced by racialized licensees.”

The Consultation Paper, along with supporting documents available on the LSUC website, are worthy of a careful read. Some of the statistics are eye-opening. For example, the Paper reports that 43% of racialized licensees, compared to 3% of non-racialized licensees that participated in the study perceive ethnic/racial identity as a barrier/challenge to advancement. The materials also include first-person narrative accounts from racialized licensees. Many stories are equal parts enraging and heart-breaking. Two samples:

Most of us are sole practitioners because we could not get into large firms because of racial barriers; the ones I know who got into firms ended up leaving because of feelings of discrimination, and ostracizing and alienation – [i.e.] not being invited to firm dinners and outings. Some Black lawyers feel suicidal because of repeatedly running into racial barriers (not academic performance) trying to enter large firms; there are firms that believe if they hire Black lawyers they will lose their clients

I was on the phone with a client, an older lady. I put a lot of thought into the work. She complained to the partner about me. I asked her myself and she could not say one thing that I did wrong. I was scared. The assistant said that she did not like you because you sounded young, you had an accent, and you can tell you are Chinese because of your name. When I went to the partner, all I could say was that she was not happy with the service. Maybe I should speak up but it was hard to say that the client, your friend at the golf club and church, was racist. I was never reprimanded but I got that feeling that I would never serve the client.

All lawyers should read the Consultation Paper and engage with the consultation process. The issues raised demand immediate attention. Take, for example, the finding in the Consultation Paper that almost half of the racialized licensees surveyed “strongly or somewhat agreed” that they had struggled to find an articling position or training placement. This information supports concerns raised by equality-seeking groups cited in the Articling Task Force Final Report including the concern that equality-seeking groups “may be disproportionately represented among those unable to find articling positions.” It also revives concerns raised in the Minority Report that offering two pathways to licensing “will do nothing to address the concerns of equality-seeking groups about whether articling is discriminatory and, arguably, institutionalizes a different form of discrimination in the LPP.”

Some initial information on the demographics of this year’s inaugural LPP class further suggests that we need to take these concerns seriously. Professors Alain Roussy and Michelle Flaherty are currently conducting a study of the University of Ottawa LPP, which is delivered only in French and which has a mandate “to promote access to justice for francophones and other marginalized groups by training future lawyers to provide high quality legal services in French.” The program is small (only 19 people are enrolled) and, thus, any statistical information gathered must be taken with a grain of salt. That said, it’s hard not to be moved by the fact that 11 out of a total of 17 individuals that participated in the study (so, roughly 65%) identified themselves as being part of a “visible minority.” With regard to the much larger LPP program delivered by Ryerson University, there is currently no information publicly available about the demographics of participants although one assumes that such information is being collected by LSUC.

Based on this current (albeit incomplete) information, there seems to be good reason to worry that we do have an “articling crisis” on our hands but perhaps not of the sort originally envisioned.

For its part, LSUC has advised that it has “developed an evaluation framework for the LPP as part of the Pathways to the Profession Pilot Project in which the results and impressions of all candidates, with specific interaction with racialized candidates, in both experiential streams of the licensing process (LPP and Articling) will be obtained and reviewed for the purpose of determining next steps upon completion of the pilot.”

In the immediate term, it falls to the law firms participating in recruiting to take seriously the risk and reality of discrimination in the articling process. This is, no doubt, the type of issue that belies a quick fix. This does not mean, however, that firms should sit on their hands. There are some immediate measures that can be taken – a few are mentioned in the CBA’s Ethical Practices Self-Evaluation Tool including having interviewers and lawyers who make hiring decisions receive training on gender and racial stereotypes and the role of unconscious bias in hiring decisions; using written interviewing guidelines; having an employment equity and diversity hiring policy in place and regularly measuring diversity performance within the firm. To be sure, measures of this nature are no panacea. Doing nothing, however, is not a legitimate option.

It’s never been conscionable to ignore the racism that exists in the legal profession. Hopefully, with the release of this Consultation Paper and its blunt revelations, it is also no longer possible to turn a blind eye.


  1. Thank you, Amy, for writing about this. I am an ally – that is, not racialized myself, but hope to be an ally to those who are – and I can remember when the LLP program was being debated, the reinstitutionalization of discrimination through the program was predicted by the Black Law Students’ Association. The Association’s prediction was that racialized students would be disproportionately represented in the LLP, which may eventually have the effect of creating a two tiered licensing process; one process for predominantly white students, and another process for everyone else. It is a bitter irony that it may in fact be or become a reality.

  2. News flash: a LOT of the firms tend to hire people who fit into a certain physical profile. Your best odds?

    1. Tall
    2. Attractive
    3. Fit
    4. White

    Not necessarily in that order.

    And when I say “attractive” I mean you fit into the standard / traditional form of this, not any sort of ‘alternative’ forms of attractive (i.e. unconventional haircut. I’ve found that on female new hires the expectation is hair should be long (or at least long-ish) because that’s what they expect from a young and attractive woman).

    But seriously, look over a firm’s profile registry. Go meet a bunch of them in person. I’ve found it’s pretty standard.

    I’ve found one of the factors I’ve listed above can be fudged a bit if the other 3 balance them out. I’ll further note that when hiring a non-white candidate the other three factors seem to be very much present.

    Now, that said, the firms have their pick of the litter. With all the students going overseas to get a law degree because they couldn’t get into law school here, there’s a glut of applicants. And these factors are favourable.

    I will say that hiring those physical attributes also often come with certain other benefits. People with these physical characteristics also tend to be more outgoing, more assertive, more confident, and are more likely to be capable of being… well, a hard-lined jerk. You can imagine how useful that skill set is in negotiations or when wooing new clients.

    This isn’t so say that ONLY this physical type of person has it, but they are just more likely to have it. People respond to tall, fit, attractive people differently than those who are not of that category. These people tend to get their way more and tend to get special treatment more often. It helps construct the space for that personality to grow. They become pushier and this is great when advocating for your client.

    As for the white characteristic, well that’s societal and economic. The current standard of beauty tends to be shown framing a white face, and even beauty products are marketed with this mindset (go find beauty colour products that are named “nude” or “naked.” Guess which skin colour that’s actually true for).

    The economic side of that is two fold, but has to do with wealth in both instances.

    1. there are more white people in this country than not, and they have been here longer than their visible minority neighbours, which means they are more likely to have money and more likely to be the clients demanding the time and attention of big established firms. And people usually respond best to people who look like them and who are perceived to be part of their “group” (which is true for all ethnic, cultural, religious, political, etc. groups, by the by).

    2. non-white applicants are more likely to be immigrants and/or come from a less affluent family. Height can be substantially effected based on nutrition during those early growing years, and proper nutrition is less accessible by less affluent families, especially in less affluent countries.

    And now to shift gears…

    As for the LPP (please stop calling is LLP. One is a new program, the other is a business structure), that visible minorities would make up the bulk of their numbers is not unexpected, but not necessarily negative.

    Off the bat, we can all agree that racialized students being unable to get an articling spot because they don’t fit into a certain visual paradigm is not acceptable. We can even have sympathy for those who may have performed less competitively than their peers at Law School because they were more likely to be from an economic status that required them to work a job at the same time, thereby limiting the amount of time they can devote to re-editing that essay or re-reading course notes.

    However, this is not the mainstay of who is in the LPP. Hopefully we’ll get a proper breakdown of statistics from the LSUC, but my guess is they’re going to leave out the truly important data points. Namely, the percentage of candidates in the program with 1. foreign degrees, and 2. poor language skills.

    You can certainly argue about the problems faced by racialized communities and how that would impact their odds of getting into a Canadian law school, and you can put forward proposals to help them get in. But when law firms see foreign degrees that aren’t from world prestigious schools they see one of two things; someone who couldn’t get into law school in Canada and went abroad, or someone who has been practicing abroad and likely doesn’t know much about Canadian law. (I would love to see a breakdown of the foreign degrees and how many of them are held by Canadians who returned to Canada right after earning them)

    Like it or not, being able to get into a Canadian law school is a metric to use to decide who might be a top candidate. We’re already deciding between how well a Canadian Law School candidate performed compared to others, so why would someone who couldn’t even get into that competition really rank? (is the view)

    As for foreign practitioners, I happen to know on the authority of a friend who is in the LPP program that there are a large number of candidates in the program whose experience and language skills are abysmal. People who achieved positions based on birth status rather than education, and who you would never want to have authority in a courtroom, and then a whole lot of people who simply cannot communicate effectively. While there is great demand for lawyers who speak other languages, since they can connect with clients who speak those languages but have poor to little English, if they can’t communicate in the language being used then they won’t be effective themselves.

    I’ve seen it first hand. People whose lack of grasp of the English language causes their arguments to become incomprehensible, or who can’t convey what they or their client need. It shows in their writing as well, and important provisions are written incorrectly or left off all together. The very worst case scenarios I’ve seen are when written or oral agreements are phrased in such a way as to fail in achieving what the lawyer wants, even when the other party is prepared to give it to them, and when the lawyer in question can’t understand the law they’re reading.

    Let’s face facts, that last one is a major issue. Native English speakers have a hard enough time reading and understanding law. It’s obvious. It’s why lawyers have jobs. If it were easy to read and understand it then anyone could do it, and you wouldn’t need to go to law school and get a license in order to give advice on it. So you can imagine how difficult it is for people who are NOT native English speakers, and especially for people who have poor English.

    People in racialized communities are most likely to have language barrier issues.

    That said, I’m not sure if this last issue is one you can really fault anyone for. If you can’t communicate in English and your job is based on English communication skills (which is what law comes down to. Reading comprehension and articulating a logical argument), you’re not a desirable candidate. In fact, you’re not even a desirable lawyer. Your clients would be at a disadvantage. Even if it just makes you slow at reading, if you bill by the hour and don’t compensate the bill for your abilities, then your handicap becomes the client’s problem. Then, of course, there are even those whose language skills are just too poor to be of use and who are unable to pass the Bar Exams (which are pretty easy, as long as you read carefully and understand what you’re reading).

    If the LSUC releases stats on the LPP candidates then it needs to include the number whose language skills are subpar (reading, writing, speaking) and who have failed or go on to fail the Bar Exams.

    This will give us a better idea of the true makeup of who is in the course and what the problems are. My guess is we’ll find a substantial number (likely a majority, possibly as high as two thirds) who simply can’t communicate and can’t pass the Bar Exams, and just can’t meet licensing requirements. The remainder will be people who were failed by the Articling system in place. In this group we know we need to focus on access and deal with the problems that shut them out. The other group… do language training first and then try again, I suppose.

    Overall, this is a complicated issue and people shouldn’t be so quick to judge what’s going on until all the facts are in. At this stage, it’s all conjecture and educated guesses.