Another year, and another Bencher Committee Report based on poor decision-making and bad governance. What’s ironic is that at the same time that Convocation received The Professional Development & Competence Committee’s (“PDCC”) report on the Law Practice Program (“LPP”), the Treasurer proposed a task force to review “the Law Society’s governance structure including achieving the goals of transparency, inclusiveness, effectiveness, efficiency, and costs.”
Despite the importance of the never-ending articling crisis, and despite the Treasurer’s call for greater transparency, the PDCC did not record votes in connection with its decision to terminate the LPP. Most would think that transparency requires all lawyers to know how their elected representatives vote on every issue. There is no reason to hold a secret vote on the fate of the LPP, particularly since the eventual Convocation vote on the LPP will be recorded.
All we know is that nine Benchers voted in favour of abolishing the LPP, three voted in favour of keeping it – and two abstained from voting at all. The two abstentions are most troubling. Abstentions should only be used in cases of conflicts of interest. If these two Benchers had a conflict, they should have immediately notified the Treasurer and resigned from the PDCC. The report to Convocation however, makes no mention of any conflict of interest.
Benchers are elected – and paid – to make decisions. Everyone running for Bencher does so on the basis that his or her judgment and decision-making is of a high quality, and that he or she should be entrusted with the future of the legal profession because of his or her judgment and decision-making prowess.
For two Benchers to refuse to make a decision on the LPP is not only insulting to the electorate, it is clear proof that they do not have what it takes to be a Bencher in Ontario. If they truly cared about the profession, they should immediately resign.
Any evaluation must be undertaken in a disciplined, and unbiased manner, so as to make decisions in the best interests of the public, based on reasonable, fact-based evidence. Seat of the pants, gut-feel and the oft-cited, “I’ve talked to some of my lawyer buddies” should have no role in the decision-making process.
To this end, the PDCC relies heavily upon the findings of an independent consultant who conducted surveys of articling students and LLP students, looking at the following four questions (the “Four Questions”):
- Does the Law Practice Program provide licensing candidates with effective transitional experiential training in defined areas of skills and tasks considered necessary for entry-level practice?
- Does the Articling Program provide licensing candidates with effective transitional experiential training in defined areas of skills and tasks considered necessary for entry-level practice?
- How does each pathway, LPP and Articling, support the licensing candidates’ opportunity to obtain the transitional experiential training requirement of the licensing process?
- Is one Pathway, LPP or Articling, more effective in delivering transitional experiential training in defined areas of skills and tasks considered necessary for entry-level practice?
At a glance, these questions appear reasonable.
But shockingly, the PDCC missed the most basic and obvious questions.
Did Convocation in 2012 intend that LPP training had to be clearly superior to Articling as a method of training?
Did Convocation in 2012 intend for LPP to provide training that was reasonably comparable to Articling so as to provide more opportunities for law graduates wishing to practice in Ontario?
The answers to these questions provide the necessary context in which data from the above Four Questions can be properly analyzed. Without that context, PDCC is simply making a decision based on gut-feel.
Even without context, PDCC fails again at good decision-making by not allocating any weighting to the Four Questions.
Are some questions more important that others? Or, are they all of equal weight?
This becomes problematic as the consultant’s report points out that LPP is actually better than Articling in some areas. For instance, the report states, “Data from these performance measures show that all the candidates in the LPP and the vast majority of the candidates in the Articling Program met or exceeded the expectations for their competency development [emphasis added]” (page 140 of the consultant’s report).
In fact, the voluminous PDCC report is far from clear on how the data in the consultant’s report was evaluated and scored (think of a procurement scorecard found in all RFP processes) by the PDCC.
This lack of weighting and failure to create a scoring mechanism are highly suggestive of muddled decision-making.
Nonetheless, it does appear that the tipping point for the PDCC was that the “perception” of the LPP as “second-tier” by some members of the bar and by students, sounded its death knell.
However, if you look at the Four Questions, “perception” is not part of the PDCC decision-making process. So how could a matter that is not part of the Four Questions now be the tipping point?
Is it fair or rational for “perception” to enter into the decision-making criteria?
Moreover, should it be a surprise to anyone that after operating for only two years, the LPP failed to create a dramatic shift in perception?
Is it fair or even logical to set such a high bar for the LPP?
In 2012 – and for many years before that – there were not enough articling positions in this province for the number of law graduates seeking them. The LPP pilot was created to fill this gap and it has done so; enrolling 281 students in its first year of operation and 280 in its second year of operation.
Without the LPP, those students would still be looking for articling positions.
Terminating the LPP does not nothing to alleviate the articling crisis – it makes it worse.
And this is final and most egregious flaw in the PDCC decision-making process; it failed to recognize any consequences of its recommendation to terminate the LPP pilot. In other words, PDCC made its decision in a vacuum.
Every decision has consequences.
Organizations that practice good governance and good decision-making, acknowledge these consequences and take them into consideration when explaining their decisions.
Not so for the PDCC – and the profession is all the poorer for it.
Given the PDCC report, it appears that the Treasurer’s call for better, more transparent governance is well-founded.
But is it too little, too late for law students who wish to practice law in Ontario?