On the LSUC Dialogue on Licensing, Pt 2: Where Is Access to Justice?

This blogpost addresses a second shortcoming in the foundational framing and materials for the Law Society of Upper Canada’s unfolding Dialogue on Licensing. In Part 1, I argued that the initial arguments and subsequent materials that have framed the Dialogue do not provide a clear or compelling demonstration of a ‘need for change’ in the current system for licensing of lawyers in Ontario. In this Part 2, I argue that a further shortcoming is a failure to adequately acknowledge the relevance of the ongoing inaccessibility of justice in Ontario. Proper recognition of access to justice issues could provide the justification for change that seems otherwise lacking.

Where is Access to Justice?

In the Dialogue supporting materials it is indicated that the primary purpose of licensing is to ensure that “only the qualified and the competent are licensed to practise law.” In his SLAW blogpost introducing the Dialogue, Peter Wardle, Chair of the Professional Development and Competence Committee, states that “[t]he licensing system has a single goal: to ensure entry-level competence.”

Although it is tempting to argue that the licensing system should be understood to have an additional goal of ensuring access to legal services, I will instead argue that, at the least, any review of licensing requirements ought to consider the relationship between the licensing system and access to justice. Moreover, I would argue, in developing options for the licensing system, and in deciding among them, preference should be given to options that will improve access to justice.

i. Access to Justice, Access to the Legal Profession and the Guiding Principle of Fairness

What can be regarded as one dimension of access to justice is already acknowledged in the supporting materials as one of the four principles that should guide the specification of licensing activities, that is, “Fairness – access to the profession must be available to all qualified candidates.”[1] This principle can capture the dimension of access to justice that can be restated as ‘access to the legal profession.’ Fair access to the legal profession, especially for members of historically disadvantaged and excluded groups, is an important dimension of access to justice in and of itself.

Access to the legal profession can also contribute to another dimension of access to justice, namely, access to legal services. This contribution is manifest in the likelihood that at least some newly-licensed lawyers who are members of historically disadvantaged and excluded groups may be more willing or able to provide legal services to everyday people who are members of those same groups, and others, who experience lack of access to justice.

It is therefore encouraging that the principle of ‘fairness’ is one of the four guiding principles for the specification of licensing activities. It is also encouraging that, in relation to this issue of fairness/access, Peter Wardle has drawn attention to the potential barrier posed by the significant cost of the universal licensing fee – at least, as discussed in Part 1, for those licensing candidates whose fees are not paid by their employers and, among those, especially for candidates undertaking the unpaid portions of the LPP/PPD program.

Yet consideration needs to be given to other potential issues of substantive inequality that may arise in relation to current or alternative licensing requirements. In particular, consideration should be given to whether all candidates are similarly situated in terms of time and other resources available to them to prepare for the licensing examinations (especially if such examinations are going to become the central component of licensing). While the supporting materials note that disability-related accommodation is available for the actual writing of the examinations, I also have in mind other potential unequal barriers, such as the inability to take time off from work and family responsibilities for study, as well as differential ability to afford/access third party preparation assistance or other study aids and resources.[2]

Beyond overlooking the full range of potential barriers to substantive fairness of existing or revised licensing examination requirements, the Dialogue materials also omit mention of the long-standing but little acknowledged concerns about unethical, discriminatory and exploitative conditions of work in articling. For example, these concerns have been raised by Adam Dodek on SLAW, both at the time of the last review of articling and during this current review. These are concerns about ‘fairness’ and access to the legal profession.

ii. Access to Justice, Access to Legal Services and Reviewing Licensing Requirements

Beyond the principle of fairness, I would argue that this review of licensing requirements ought to also consider the ‘access to legal services’ dimension of access to justice more directly.

To begin with, this should mean that, in developing options for the licensing system, and in deciding among them, preference should be given to options that will improve access to justice. In the course of an access to justice oriented post-mortem of the previous review of licensing requirements, published here, I outline some of the access to justice-enhancing options then proposed (but dismissed). One proposed option, which could still be pursued, is to integrate the practical legal training programs of the LPP/PPD into real-client mega-clinics for everyday civil legal problems.

In addition though, more direct consideration of the issue of access to legal services should mean that the current licensing requirements are assessed for the extent to which they positively or negatively impact access to legal services. In this regard, it should be a matter of significant concern that only a very small proportion of articling positions are available in practise contexts that serve so-called ‘poverty law’ clients and ‘everyday legal needs’, while the vast majority of articling positions are situated in firms that serve the legal needs of relatively more advantaged individuals, corporations and organizations. This negatively impacts access to legal services in two ways: first, because it orients the labour-resource of licensing candidates during their experiential training towards the advantaged; and, second, because it orients the legal knowledge and skills developed by licensing candidates during their experiential training towards the advantaged as well. In combination, these aspects of the current licensing regime skew new entrants to the legal profession towards serving the present and future needs of relatively advantaged clients and, in so doing, reinforce the current and future access to justice problem.

To conclude then, I would argue that the extent to which the structure and operation of the licensing system has negative impacts on access to justice – both as access to the legal profession and access to legal services – ought to be among the ‘urgent and compelling’ factors that are prompting ‘the need for change’.

I would urge the PDCC to take a more careful look at the data and other arguments that purportedly justify the need for change, as well as to expand their gaze to encompass access to justice issues.

_____________________

[1] The other three are: Objectivity – licensing standards are well defined, clear and relevant; Transparency – licensing requirements and processes are readily available; Accountability – licensing requirements must safeguard the public interest.

[2] At the same time, it is important to acknowledge that law faculties and their universities also need to consider the role of their policies and procedures – on, for instance, admission, tuition, and financial aid – in relation to access to legal education and, in turn, access to the legal profession.