The Law Society of Upper Canada’s Professional Development and Competence Committee has released a report that recommends ending the Law Practice Program (LPP), an alternative pathway to licensing lawyers in Ontario, only two years into its pilot project term. The governing Benchers of the law society will vote on the committee’s recommendation on Nov. 9. Here are news articles about the situation from The Globe And Mail, The Lawyers Weekly, Law Times, and CBA National magazine.
The committee’s recommendation is incorrect and ill-advised, and the Benchers should reject it at their November 9th meeting. Here’s why.
1. There is no evidence that the program is failing.
Let me quote from the committee’s report itself: “There is no evidence to suggest that the LPP is in fact second-tier or merits [such a] perception. Indeed, as the Committee has discussed above, the LPP is to all observation of very high quality and may, in fact, excel over articling in a number of areas” (para. 59).
Indeed. There is no evidence that the new lawyer training experience provided by the LPP is inferior to articling, that lawyers trained through the LPP are less competent than those who passed through articling, or that the two providers of the LPP (Ryerson University and the University of Ottawa) are failing to provide a good training experience — in fact, the committee went out of its way to praise these providers.
There’s only one data point in the report that casts any kind of shadow on the LPP. In paragraphs 88 to 102 of its report, the committee notes that first-time licensing exam failure rates were about three times as high for LPP participants as for articling students. Obviously, that’s a concern.
But as the committee says, these exams “require candidates to study, comprehend, analyze and then apply their knowledge, skill, ability and judgment to situational test questions.” Put differently, these exams test in writing a candidate’s knowledge of the law, a topic on which neither the articling experience nor LPP work placements has any real bearing. This discrepancy is far likelier to be traced back to the licensing candidate’s performance in law school — and I strongly suspect that it’s precisely those students who performed below the average in law school who have greater trouble landing an articling job, and who are therefore likelier to enter the LPP. (Author’s note: please see comment from David Wiseman, below, for clarifying information on this point.)
If the committee wants to address with law school deans the preparedness of new law graduates to pass the licensing exam, then they should do so. But that’s not an issue to be laid at the LPP’s feet: correlation is not causation. If the committee had evidence that lawyers trained through the LPP fall below the standards of performance and professionalism that the Bar has set for itself, I’m sure we’d hear it. But I don’t see that data in this report.
I also see references in this report to the greater difficulty faced by LPP participants in landing full-time jobs in law firms [para. 69]. With respect, that’s not why the LPP (or articling, for that matter) exists. The sole purpose of both the articling system and the LPP is to ensure the competence of new lawyers, so as to better serve and protect the public interest. Nobody suggests that an articling experience is worthless if the student is not hired back as an associate. The same test should not be applied to the LPP.
2. The “second-tier” argument for ending the program is specious.
The primary ground cited by the committee to support ending the program is that the LPP is perceived to be a second-tier pathway into the profession. Here are some of the reasons cited by the committee to support its opinion:
* “The majority of candidates in each licensing cohort appear to consider the LPP alternative as a second choice or, indeed, no choice at all.” [para. 60]
* “The LPP failed to interest a significant portion of licensing candidates who could have chosen this path.” [para. 62]
* “A declining percentage (38% in Year One and 27% in Year Two) of candidates in the LPP reported that it was their first choice for transitional experiential training.” [para. 64]
* “Some of the LPP Focus Group participants expressed that this notion of stigma is linked to nomenclature, for example, ‘LPP candidate’ versus ‘articling candidate,’ when both could be ‘students at law.'” [para. 68]
* “The Committee accepts that there is little concrete evidence yet about law firm attitudes toward hiring the graduates, but the perceptions of candidates themselves reveals a deeply held view about which pathway is preferable.” [para. 79]
So, if I’ve read this correctly, the committee wants to cancel the LPP primarily because many of its student participants consider it to be an inferior or second-class pathway into the profession. Where could they have gotten this impression? Who could be sending LPP participants a signal that their licensing experience isn’t as good as an articling experience?
Let’s ask all the Benchers who voted against the LPP pilot program in 2012, as reported nationwide by The Globe And Mail: “Some within the Law Society have criticized the program – 20 of 56 council members voted against it. They argue some firms will see the participants as second-class [and] that it will create a two-tiered licensing system….”
Let’s ask former Bencher Gavin MacKenzie, who opposed the creation of the LPP in 2012 and explained his reasons to Law Times: “A major objection that I and others had to the proposal that carried … was that it created a two-tiered system and that graduates of the Law Practice Program would not be perceived in the same light as students who secured articling jobs.”
Let’s ask current Bencher Joseph Groia, who spoke at length to The Lawyers Weekly about his opposition to the LPP: “I would say to the people who want us to continue: How many more disadvantaged, second-tier lawyers do you want to have called to the bar…and what do you propose to do to help them overcome the stigma that they now are really having to deal with as they try to become fully contributing members of the profession?”
And let’s ask current law society Treasurer Paul Schabas, whose 2015 Bencher candidacy website states: “I also opposed the Law Practice Program for creating a two-tier licensing process. There will be review of it soon, and if it’s not working we mustn’t be afraid to dump it.”
I’m not criticizing any of these lawyers for holding these opinions, to which they are fully entitled. I’m saying it’s a little hard for the Law Practice Program to establish itself as a legitimate pathway into the profession in Ontario when the leaders of the profession have been ripping it as inferior and second-tier from the day the program was announced.
Why wouldn’t the LPP’s participants feel they’ve been shunted onto a secondary track, when practicing lawyers keep sending that message in the legal and mainstream press? The LPP’s “second-tier perception” rap looks to me like a self-fulfilling prophecy; yet it’s the primary ground relied upon by the committee for ending the program.
As for many LPP participants’ own preference for an articling position rather than an LPP placement — why should this be a surprise? Of course most students would prefer the articling route: it pays better, it offers a better (if ever-dwindling) chance of hireback, and as the profession apparently never tires of telling them, it’s regarded as the first-tier option.
Viewed in this light, the remarkable thing about the committee’s prize statistic — that the LPP was the preferred choice for “just” 38% of Year One and 27% of Year Two candidates — is that the number is that high at all! Nearly a third of the people enrolled in this brand-new, frequently derided pathway in its first two years are there because they want to be. What would those numbers be like in five years, or ten, as the program continues to evolve and improve?
Law professor Noel Semple puts it very well: “A regulator ending the LPP because it’s perceived as second-tier to articling is like a regulator banning Chevrolets because they are perceived as second tier to Cadillacs.”
3. The financial reason for ending the program isn’t much better.
The “second-class status” of the LPP isn’t the only reason cited by the committee to end the program. As The Globe And Mail reports, the LPP “is funded through an additional $1,900 licensing fee from each of the more than 2,000 people who enter the profession each year. If the fee was charged to LPP participants only, it could rise to as much as $17,000.”
The committee’s report also says: “Lawyer licensees are also supporting the cost of the LPP by contributing $1 million annually as part of their licensing fees” — but then it goes on to add, “although this amount has been allocated in years preceding the pilot project for other licensing-related matters.” So let’s be clear: this amount is not a new expense created to cover the cost of the LPP.
If the committee’s problem with the LPP is that it’s expensive, then my response is: Yes, it is. It’s supposed to be. Training new lawyers is expensive. Law firms, the private entities to which the law society has been outsourcing the responsibility of assuring new lawyer competence through articling, routinely spend tens of thousands of dollars every year in salary alone to hire an articling student, never mind overhead, benefits, staff support, and billable time foregone by supervising lawyers. And I think most law firms in Ontario would attest that they can recover at most a small fraction of that expense through billing the students’ services to clients. (And we wonder why the number of articling positions is diminishing?)
What the LPP has really done here is to surface and make visible to the law society exactly how much money it costs to bridge a lawyer from law school to practice. Perhaps because the law society has never had to incur those costs directly, they’ve come as a bit of a shock.
But if the concern is that charging all new licensees $1,900 to fund the LPP is unfairly burdensome, then I agree. This cost should not be borne solely by new licensees, who enter the profession already staggering under massive debt loads and who have the lowest earning power of anyone in the profession. Instead, let’s spread the cost among the nearly 50,000 lawyer licensees in Ontario, or even among the approximately 25,000 lawyers in private practice.
Let’s do the math. If I multiply $1,900 by 2,000 new licensees, I get $3,800,000 annually. Divide that number by 50,000 and the amount drops to $76. Limit it just to private-practice lawyers and the amount doubles to $152. Add in the $1 million cited above, if you like — that’s $40 per practicing lawyer, bringing us to a grand total of $192 a year. According to Canadian Lawyer‘s 2016 legal fees survey, that’s equivalent to less than one billable hour a year for first-year lawyers, maybe 20 billable minutes a year for veteran practitioners. That doesn’t seem excessively burdensome to me.
4. The Law Practice Program works.
I’m not suggesting that the LPP is flawless and requires no improvements. Of course it’s a work in progress, and I expect that its providers would be among the first to agree. But just two years into a small-scale pilot project, how is it reasonable to expect anything else? If we travelled back in time to the early 20th century and assessed the articling system two years into its development, how good would it look by comparison? It’s really not clear to me what the Professional Development and Competence Committee expected from the LPP at this stage of its development, and how realistic those expectations were.
But if the committee was interested in hearing some LPP success stories, some first-hand accounts that could belie the “second-tier” label, they are readily available. The lawyers, law firms, and in-house departments noted below either don’t buy the “second-tier” assessment or were willing to look past it.
* Jeffrey Francis, senior counsel at RBC, “wondered about the LPP program when it was launched and whether it would give students what they needed to know. ‘When I was articling, I estimate it took me at least six months to get up to where Amanda was when she joined us,’ he said, regarding LPP participant Amanda Amiri. ‘She knew what an NDA was, an indemnity, and a lot of other things you aren’t taught in law school.'”
* “There was a negative perception [at the Ministry of the Environment] about what the LPP was,” said program participant Anna-Carole Bougie. “But when I spoke to them and as they saw the work I did, I got a lot better feedback about the LPP program. They said in some cases I was better prepared, because the practical experience we had in the fictional firm allowed me to know what documents they were talking about.”
* Joshua D’Cunha’s “classmates and lawyers derided the program, insisting that employers would thumb their noses at LPP grads. Over time, D’Cunha recalls, that negativity sunk in: ‘I wondered, Maybe this will haunt me for the rest of my career.’ Then he got to Infrastructure Ontario — and no one cared. ‘All they were concerned about was my ability to do the work,’ says D’Cunha. After his placement, his boss hired him back, selecting him over an articling student.”
Notice that in each of these cases, there was an initial degree of skepticism about the quality of LPP participants among the lawyers who took them on, or even among the participants themselves. But the students overcame those perceptions and proved themselves to be as good as any student hired to fill an articling position. And that brings me to my final point.
5. Perceptions can be changed.
If the law society is really concerned that there’s a perception of second-tier status afflicting the LPP, then it should start working to change the perception. If the law society were to throw its weight and authority behind the LPP, to show its support by standing up for the program and its participants, then those perceptions would start to improve in a hurry.
This would not be hard to do. Find more success stories like those cited above from the LPP and publicize them throughout the profession. Get clients who’ve worked with LPP lawyers to provide glowing testimonials. Acknowledge that the program still has bugs to be worked out, but then start working to address them — don’t pronounce the patient to be terminally ill upon getting its very first physical.
This is the opportunity that now lies before Convocation. The report of the committee, and the denigrating commentary about the LPP that accompanied it, has inflicted a great deal of damage to the program. Once you start telling everyone that something is “second-tier,” then regardless of the facts, the perception is poisoned and the program will find it ever more difficult to recruit participants, mentors, and placement opportunities. The prophecy continues to fulfill itself.
But Convocation can stop that process in its tracks by rejecting the committee’s recommendations next month. By voting to support the LPP for at least another few years (and strengthening its sustainability by spreading the financial cost of the program more equitably across the profession), the law society’s Benchers can start a brand-new narrative: of a governing body that’s willing to show courage and vision in the face of challenging early returns, that won’t abandon ship at the first sign of trouble ahead.
If the LPP were demonstrably proven to be producing incompetent lawyers, then I’d be deeply concerned about continuing to support it. But is the law society seriously going to give up on a promising and innovative new-lawyer training program because it has an image problem?
I’ve had my beefs with LSUC Convocation before. I opposed the decision to continue enforcing Ontario’s restrictions against non-lawyer ownership of law firms, for example. But the ABS debate was a real debate, with facts, evidence, and principles in play, and reasonable people can disagree about the wisdom of non-lawyer ownership. The decision not to pursue the ABS path was at least defensible, and while I disagreed strongly with those on the other side, I respected their position.
This situation is different: there are no facts to discuss and no greater principles at stake. The committee wants to end the LPP because it isn’t sufficiently popular within the legal profession two years into its pilot term. That’s not remotely a good enough reason.
No other options are on the table
And let’s add one more fact about the LPP: it is never more necessary than it is today. The committee’s report does not exactly praise the articling system to the heavens either, and rightly so. The worst-kept secret in the Canadian legal profession is that articling has been stretched beyond its limits and can no longer function as a viable and equitable new-lawyer competence assurance system, a role it was never meant to play anyway.
If the LPP is abandoned, then the rapidly narrowing path of articling will be the only way for new law graduates in Ontario to enter the profession, and that’s not going to cut it. Hundreds of otherwise viable candidates for Bar admission will be shut out of the legal profession every year because the articling positions simply aren’t there for them. It is inevitable that one of them will challenge the barrier to entry that the law society has erected. It is entirely likely that they will win. And then what?
Let’s be clear: the Law Practice Program was conceived out of pure necessity. The number of articling jobs is shrinking, and there’s nothing the law society can do to stop that. There needs to be another route into the profession besides articling, yet over the course of several decades of near-constant study, the law society has not come up with any viable alternative option other than the LPP. There is no Plan C.
The choice today is to invest more fully and sincerely in supporting the Law Practice Program through its growing pains, or to sit back and wait for the letter to arrive from the federal Bureau of Competition opening an investigation into restrictive admission practices by the self-regulating body for Ontario’s lawyers. I think that’s a decision that all but makes itself.
If you’re an Ontario lawyer who’s concerned by the foregoing, then contact a Bencher in your district to make your opinions known. If you’re a lawyer outside Ontario or just an interested onlooker, consider signing on to this petition simply to make your feelings known. And if you’re a Bencher of the law society, I hope you’ll consider these arguments before casting your vote next month.