Bridges Over the Chasm: Licensing Design and the Abolition of Articling
What should people who want to practice law have to do before they are licensed? This perennial debate has bloomed once again. The Law Society of Ontario (LSO) is seeking feedback on its Options for Lawyer Licensing consultation paper (Slaw summary here). Two of the LSO’s four options would abolish articling. Candidates would instead have to pass exams covering both legal skills and substantive knowledge. There would also be a law practice program, either required for all candidates (LSO’s Option 4) or only for those practicing in smaller firms (Option 3).
Thinking of licensing in terms of footbridges over a chasm may help clarify what is at stake, and why the LSO should in fact abolish the articling requirement.
Bridges over the Chasm
A licensing regime creates a legal chasm. Aspiring legal professionals start out on one side. The people and corporations who would like to receive their services stand on the other side. Disregarding the chasm means falling into the “unauthorized practice of law,” a sharp set of rocks maintained by the law societies.
Licensing creates bridges over this chasm. Those who successfully cross the bridges are allowed to serve the clients waiting on the other side. To complete the traditional (and still dominant) domestic path to a full lawyer license in most provinces, one must:
- forego seven years of income and time to obtain the necessary university degrees;
- typically pay $90,000 or more in combined undergraduate and law school tuition;
- achieve strong LSAT and undergraduate GPA scores
- pass licensing exams, and
- find an articling position and complete articles.[1]
Canada’s licensing footbridges are narrow and arduous, relative to those of most comparable countries. For example, only one university degree (not two) is required in countries like England and Australia. In the United States the LSAT scores and GPAs necessary to get into an accredited law school are much lower than they are here. Finally, mandatory apprenticeships akin to articling are very rare abroad.
What’s at Stake in Licensing Design?
Suppose you are asked to design licensing footbridges from scratch. What considerations would guide you? That such decisions should be made in the “public interest” is uncontroversial, but what does that mean in this context?
Client interests generally have pride of place within the public interest. Ensuring the baseline competence of licensees to practice law is job #1, as Malcolm Mercer explains. If the bridges are insufficiently challenging, candidates will be able cross them without demonstrating or learning enough of what is necessary in order to be competent practitioners. They could do serious damage to the clients on the other side of the chasm. Quality beyond baseline competence is obviously also desirable, and licensing requirements can also serve this goal.
Quality isn’t Everything
However the public interest involves more than just the client interest in quality. Clients also have interests in service price, and in having a broad range of choice in the market. The interests of licensing candidates — especially those who have already invested many years and dollars in efforts to cross the licensing chasm — must also be protected as much as possible in the design process.
Every time you, as designer, make the licensing footbridges longer or harder to cross, several bad things can happen:
- First, some people who would become excellent lawyers are deterred from trying to cross the chasm. Many people of modest means would be willing to spend four years and $40,000 in order to become a lawyer (as in the UK), but would balk at eight years and $90,000 plus a mandatory apprenticeship requirement (as in most Canadian provinces).
- Second, the more onerous the licensing requirements are, the more debt and the more foregone income those who do succeed in crossing the chasm will have when they begin serving clients.
- Access to justice therefore suffers as licensing becomes more onerous. Service prices are higher due to increased practitioner debt and reduced numbers of practitioners. There are many thousands of people on the far side of the licensing chasm, who would like to be clients, but cannot afford the rates charged by the select group of licensees who succeed.
- Equity-seeking candidates may be especially disadvantaged. Less affluent people from less privileged backgrounds are more likely to be deterred from legal careers by expensive and arduous licensing requirements. Thus, longer and more arduous licensing footbridges make it more difficult to achieve professional diversity.
- To the extent that lawyers from disadvantaged or equity-seeking groups are more likely to serve clients from those same groups, the people deprived of affordable assistance may be those who need it most.
Building Better Footbridges
The key question for licensing design is: how can we “buy” large and consistent quality benefits for candidates and their clients, for the lowest possible cost in terms of candidates’ money and time? Licensing reform that makes it easier to cross the chasm, without any deleterious effect on quality, is good for both clients and candidates. In two commendable recent reforms, the LSO has (i) decided to give paralegals practice rights in some family law matters, and (ii) created alternative pathways to licensure (the Law Practice Program and the Integrated Practice Curriculum). Both decisions created new footbridges across the chasm. Both decisions make it easier for a group of aspiring legal professionals, who are more likely than articled lawyers to be racialized and equity-seeking, to have satisfying careers helping people. They should also produce access to justice benefits, by giving clients access to a new and more affordable class of licensed practitioners.
Exams and practice programs can be designed to optimize their cost-benefit profile for candidates and the clients they will serve. Surveys of practicing lawyers, analyses of complaints data, and emerging methodologies for measuring legal service value can be used to identify baseline knowledge and skills. The risks arising from legal practice can also be identified and quantified.
Practice programs and exam questions can then be calibrated to inculcate the most important skills and knowledge, and minimize the gravest risks. The passing score on a licensing exam or practice program can be set at the level where further increases would have costs greater than their benefits. They can also be calibrated for the context in which different groups of candidates will practice. LSO’s Option 3 reflects this insight, by prescribing a law practice program only for the category of licensees (small and solo practitioners) thought to need it most. On the other hand, Option 4’s premise that all licensees need these skills may also be defensible. The decision between Option 3 and Option 4 should be based on a thorough empirical understanding of real law practice and the value that the law practice program offers to different candidates.
Whither Articling?
How does articling look from this point of view? The question is not whether people will still begin legal careers by doing the sorts of things that articling students do today. Undoubtedly they will. The question is whether regulators should require some or all candidates to find and complete articles before granting them a license to practice where and how they wish.
The effect of the articling requirement in fostering candidate quality is questionable. The nature of articling depends on the lightly-regulated decisions and resources of articling principals, so it is necessarily inconsistent. In a worryingly high proportion of cases, the articling requirement subjects candidates to harassment and unprofessional conduct. This may be due to the power imbalance created by the articling principal’s status as gatekeeper on the licensing footbridge. Because offering articles is a voluntary decision made by firms, success in obtaining a position can depend to a large extent on factors beyond the candidate’s control, such as racial prejudice and market conditions.
Even articling programs that succeed admirably in preparing one to practice in the particular context of that firm may do very little to prepare the candidate to practice in other practice contexts. It is true that articling is “real world” experience and a law practice program’s world is simulated, but the “real world” in which one articles doesn’t necessarily bear any resemblance to the real world in which one will practice. A simulated world can be designed to develop the skills that are most essential in all of the disparate real worlds of law practice today.
Licensing is here to stay. That means there will always be a chasm between people who want to provide legal services, and the people who are ready and willing to pay for those services. It is very important to design appropriate footbridges across the licensing chasm. They must maximize the quality, price, and choice interests at stake. Articling, as a regulatory requirement, is haphazard and arbitrary and therefore inappropriate. The Law Society should abolish it, in favour of well-designed and evidence-based alternatives such as exams and the law practice program.
___________________________
[1] There are a few alternative footbridges over the chasm. These include Ontario’s LPP and paralegal pathways, the National Committee on Accreditation process for foreign-trained lawyers, and Quebec’s notarial profession.
Noel,
As a starting point, if we’re going to compare the law practice program (the “LPP”) with articling, we need to make a point of comparing like with like.
Articling training is provided for free – or, at least, it comes at the cost only of a student’s time. Indeed, most articling students are paid (some quite well) for their services. In contrast, people pay for the LPP. While the cost of the LPP has been hidden over the past few years, by forcing articling students (or, indirectly, their firms) to pay for it through higher licensing fees, it is real and significant. According to the LSUC, the unsubsidized cost of the LPP program would be approximately $17K per candidate.
Two things follow from that. First, eliminating articles would impose a significant financial penalty on candidates – instead of receiving free training and, usually, some form of remuneration, they would have to pay a significant fee to become licensed.
Second, it means that comparisons between the LPP and articling are not comparing like with like. Yes, if I pay someone to train me, I may receive better training than if I don’t, but so what.
I’d wager the articling experience would be better at some firms if they were paid $17K to train their students, instead of having to incur an out-of-pocket cost to do so. Furthermore, I suspect most articling students would not be happy to trade a job that pays them a moderate stipend (or more) and provides free training for a training obligation that requires them to incur another $17k in debt. Imposing that requirement would constitute a widening the chasm for many students.
More importantly, I would contest the proposition that “simulated world can be designed to develop the skills that are most essential in all of the disparate real worlds of law practice today”. That’s a strong claim that needs to be backed up – given that the career outcomes of graduates of the LPP program are markedly different from those of articling graduates, it isn’t obvious. The more realistic expectation is that a program that seeks to develop skills used in “all of the disparate real worlds of law practice” is unlikely to develop the skills needed in any of them, and certainly not in the smaller more specialized field.
Moreover, it’s an open question whether the LSO even knows what skills are needed in the legal market place. Here it is telling that many articling principals – e.g., practicing lawyers – ascribe little or no value to the experiential training materials/competencies/appraisals prepared by the LSO (and which, presumably, form the basis for the LPP training) (at least according to the LSUC’s September 2016 report to convocation). My own experience is that it might be useful for a sole practitioner in criminal or family law, but is singularly useless in other practice areas (in my case, corporate tax law or business law more generally). To subject a student interested in practicing corporate tax or business law – for example – to the LPP would involve wasting 6 months of their time, at considerable expense, for little or no benefit.
Whether the LSO chooses to retain articling or not, moving towards a universal practice course would be a mistake – a change that makes everyone worse off. Personally, I’d suggest moving to a more rigorous bar exam as a prerequisite for being called and requiring newly called lawyers to either work under the supervision of another lawyer for a period of 2 years (the LSO’s option 3, although I’m not sure the restriction against working at firms larger than 5 lawyers is sensible – I can think of some excellent lawyers/firms who would be precluded on that basis) or take a practice skills course before they hang up their own shingle. That’s an option which retains the ability to obtain the practical skills through supervised work experience that simply cannot (and would not) be taught in a class, while providing otherwise competent licensees (determined based on a meaningful bar exam) who cannot find employment with an opportunity to provide their services to the public in a manner that protects the public interest.
Carl
When I attended law school in Ontario around 1980, Ontario had six law schools. Standards were high, and the cull rate (mostly done by the first year Christmas exams) was about 25% (down from about 33% when my father went through). But consider what has happened since then:
1. Since the mid-90s, thanks to the NDP’s blunder of cutting medical school enrollment and the response of the comprehensive universities to essentially stop failing the law students to recoup the lost medical school tuition and government grant revenues, the failure rate at law school has plummeted. Now only a very few percent do not graduate. Over the six law schools, the number of additional graduates amounted to the creation of a 7th, rather large, law school.
2. Ottawa U more than doubled in size due to a computer glitch. Apparently, the doubling was to be a one-off but, having found room for another 160+ students, and becoming instantly enamoured of the additional tuition and grant revenues, Ottawa U remained more than doubled in size. That amounted to the creation of an 8th law school.
3. The other five have increased in size by varying degrees effectively creating a 9th law school (and if this is a lower number than a full law school, it is made up for above partly in point 1, and partly in point 2 given that Ottawa was already the second largest law school).
4. In 2013, Lakehead opened its law school. I argued and voted for its creation in Convocation on the basis that we needed a law school in the north – an underserved area. I also called for a corresponding reduction in the south. Fat chance. Lakehead became, effectively, our 10th law school.
5. The number of foreign-trained law students coming to, or often returning to*, Ontario has increased substantially, effective amounting to an 11th law school.
*because, other than those with legitimate reasons to go outside Canada such as scholarship students or desire for (high cost) adventure, they could not get into the many law schools in Canada
6. Hundreds of law students a year cannot find articling jobs and must go through the LPP. There is no unfair gatekeeping by the profession. If the work warranted hiring more students and lawyers, the profession would hire more students and lawyers. Since the jobs weren’t there to begin with, when the students complete the LPP, there are still no jobs. Desperate, they hang out a shingle and discover, to their horror, that law school did not prepare them for private practice at all, and they still do not have a mentor. Sometimes, they do not discover they are not prepared, and that is an even worse problem.
7. The next year, another several hundred law students join the growing number of unemployed or underemployed lawyers. And so it goes.
8. In light of this, it boggles the mind that Convocation approved yet another law school at Ryerson. I was the only person to speak against it. (If anyone else did, they spoke very briefly. One person spoke to decry the high cost of tuition, but not to oppose Ryerson’s application.) It sailed through with barely a squeak. Then some benchers approached the Ryerson contingent in the public seating area and shook their hands. It was argued that Canadian students studying law abroad should instead pay tuition in Canada. That fails to recognize that the foreign universities will now simply take the next lower stratum of undergrads. Consider that in about 1980, the number of As handed out in undergrad programs was about 10%. Now it is 38%. The new generation is every bit as smart as my generation, but they are not four times as smart. Leicester in England will take you with a B average (which, when you factor in the B pluses, is now a below average undergrad mark) and no LSAT; i.e., no demonstrated affinity for the kind of thinking that would be useful in a law career. The tuition is sky high at Leicester. They are not going to give up on that cash cow. They will simply admit students whose qualifications are even lower than the students they were previously taking.
For many years now, we have been calling lawyers to the bar at a rate of 5-7 times population growth. This is unsustainable, unfair to the students, and very bad for the public given that history proves that too many lawyers per capita does not reduce the cost of legal services to the public, it increases them as each barrister on average must make twice the money from half the clients to earn an income that, on average, will not allow her or him to retire in the comfort of an elementary school teacher, and certainly not in the comfort of a university professor.
Who is responsible for this mess? Mostly the universities for their irresponsible money grabs arising from bulking up and lowering standards. Also the government for its negligent misallocation of scarce education resources. Also the Law Society for not being cruel enough to cut the bottom students off at the knees when they reach the precipice of joining the profession, but the Law Society may be forgiven for not being inhumane. Also the Law Society for killing the bar admission course – a retrograde step of rippling harm.
Essentially, the law schools have created the articling crisis by sending the Law Society and the profession a tsunami of graduates, nearly half of whom, even just 20 years ago, would either not have qualified for law school in the first place or would have disappeared by January first year.
Noel, I am sorry, but it is irritating to have someone employed by the entities that are the cause of the problem opining that the answer is for a separate, and downstream, entity, the Law Society, to dispense with the high value of articling. Physician, clean up your own clinic.
The law schools cheerfully dug the chasm you decry and heartlessly kick hundreds of students a year off the cliff edge into it. The real chasm in this debate is the failure of the law schools to take responsibility for their self-serving chasm digging.
As is well known, law schools do a poor job of training law students for private practice. Indeed, the schools make no bones about seeing their role as teachers of theory, as misconstruing the jury trial process (I’m thinking of you, Windsor), etc. Occasionally, they make noises about enhancing practice studies, but it doesn’t last or doesn’t reach enough students. The law schools repose in the belief that the students are to learn private practice while articling and while starting their careers at the elbows of mentors. Yet, it is the law schools that are making it nigh impossible for literally hundreds and hundreds of students every year to get articling and mentored experiences.
There is no better preparation for private practice than articling and then several years at the elbow of a mentor. So far, nothing comes remotely close to it. It is essential to the health of the profession and clearly in the best interests of the public. The law schools do not seem to care about any of that. Instead, they spew out theory-infused students like drunken sailors who have had far, far, far too much rum.
By the way, studies routinely find that, while a small percentage of students lament their articles, the vast majority find them very beneficial. No replacement system is going to improve on those survey results. Any other system will also contain those who lament it.
Anyone serious about fixing the crisis while ensuring that the vast majority of students and calls get the preparation and mentoring they need has only one argument to make: Cut law school admissions, raise the standards, and fail the bottom quintile by January of first year so they can get on with their lives outside law. Anything short of that will fail to address the problem but will only exacerbate it.
Given the vested interests of the law schools and their well remunerated staffs, the continued negligence of the government on this issue, and the understandable impotence of the Law Society, I have no optimism that the crisis will be fixed. Ersatz “fixes” will be mooted and some even adopted but the upshot will be a continued tsunami of unprepared and unmentored new calls.
What a mess. What a disaster, years in the making. The biggest losers? The public of course.
As a law student approaching articles, and having worked in law offices as a legal assistant for many years, it is very apparent that law school and actually practicing law are entirely different beasts.
My naive belief is that law school should be one year and articling 3. There is nothing like doing.
Alternatively, and I think this is perhaps more realistic, law schools might become living “access to justice clinics,” where instead of a small and optional student legal assistance program, the entire student body participates in rotation of file types to get hands on experience following a file from start to finish with professor/practitioner mentors. Courses are essential but some of the courses could be taught in much shorter time frames. Further, without seeing how the theory works in real files courses are sometimes not really all that useful and become an exercise of memorizing and then promptly forgetting information that has no context. All courses could run parallel to clinic duties. I think that these student legal assistance clinics should be mandatory and the focus of law school rather than an optional resume booster.
This would obviously fulfill a huge need in the community as well.
Thank you for these thoughtful responses.
I am open to the idea that law school should spend more time preparing students for legal practice, perhaps even in the way EML describes. Three years is more than enough to give students practical skills without shortchanging other intellectual goals, especially if we make better use of under-utilized student time (e.g. the summers before and after first year). If you haven’t spent much time in a law school recently, you might be surprised how many of them (including Windsor Law) are moving in this direction.
The premise of Bradley’s comment is that there is widespread lawyer unemployment or under-employment. It’s very hard to say if that’s true. The data is scarce: http://www.nationalmagazine.ca/Blog/April-2016/Law-graduates-and-employment-Too-little-informatio.aspx
The only data I’ve seen on lawyer unemployment in Canada stated a 2014 unemployment rate of 6%, which was lower than the general unemployment rate in that year. (see https://www.canadianlawyermag.com/legalfeeds/author/glenn-kauth/new-report-notes-94-employment-rate-for-law-graduates-5601/)
There are plenty of well-publicized anecdotes regarding unemployed new lawyers, but also many signs of robust and unmet demand. The fact that the number of articling positions is smaller than the number of graduates doesn’t necessarily indicate a lack of demand for lawyers in the general market, or tell us anything about overall career outcomes for lawyers.
Carl is correct that articling is a job, which costs the regulator nothing and (usually) pays a salary to the candidate. If the articling requirement is to be evaluated by weighing its benefits against its costs (as I think it should be), that cost-benefit equation includes no direct monetary costs. However, I believe, for the reasons above, that the articling requirement imposes large indirect costs on both candidates and clients.
The entry-level jobs and the mentoring activities currently labelled “articling positions” would generally continue to exist under other names if the regulatory articling requirement were to be abolished. The question is, what benefit is created by the regulatory requirement, and how does that benefit compare to the cost imposed by the requirement. Conceivably, the obligations imposed by the LSO on articling principals make these entry-level positions significantly more educational than they would be in the absence of that requirement. Conceivably, some articling positions would not be converted to entry-level associate positions if the regulatory obligation were removed. I am not convinced that these benefits are very significant, although I would be interested to see data from other jurisdictions or occupations on the question.
Whether abolishing the articling requirement would cost all candidates money depends on whether the LSO chooses Option 3 (LPP-for-some) or Option 4 (LPP-for-all). I think Carl is probably right that, for candidates who will practice in large firms or in-house, an 8-month, $17k program would not be cost-justified. A shorter, cheaper program might be, if focused on skills useful to them (e.g., perhaps, client relationships and professional workplace communication skills).
I also agree that we lack sufficient empirical knowledge about what skills are used, by how what proportions of practitioners, in real world legal practice. The FLSC has made a start on this with surveys of practicing lawyers re what skills they use most often and how important they are. However we definitely need to know more. If it is true, as Carl suggests, that the necessary skills depend overwhelmingly on the practice niche, the logical regulatory response would be to require different exams and/or practice courses for different niches. Articling is universalist — articling in corporate law entitles you to practice criminal law — so it doesn’t seem to respond well the trend toward specialization. (http://www.slaw.ca/2017/10/06/generalism-and-access-to-justice-jack-of-all-trades-master-of-none/?highlight=generalism)
Bradley Wright’s comment is very wrong (see it above). He wants the law society to use it powers of licensing to control the market supply of lawyers. That is very improper. Law societies are to regulate the legal profession so as to make legal services adequately available instead of avoiding the problem by manipulating the market for lawyers. And so he blames everyone else so that law societies can remain as they have always been since they were created. As a result, our law societies are inherently incompetent. An early 19th century management structure cannot cope with the major problems of a 21st law society because such problems are not legal problems. Our law societies are managed by part-time amateurs. But they don’t retain the necessary expertise to make themselves competent. And so, they are like an elected government without a civil service. Such a government cannot govern, and neither can out law societies as is proved by the unaffordable legal services problem.
Bradley Wright is very wrong to blame the law schools. He blames others so that law societies do not have to evolve as do all other institutions in society. The more that law society benchers (their lawyer-managers, as was Bradley Wright) can require of law schools, the less that benchers have to do in regard to the competence of lawyers. And so there is a growing tension between them. See: Osgoode Hall Law School Professor Emeritus Harry Arthurs’ article, “The Future of Law School: Three Visions and a Prediction,” (2014), 51:4 Alberta Law Review 705-716; pdf., online: https://www.albertalawreview.com/index.php/ALR/article/view/33.
The over-supply of lawyers and law students is a law society-caused problem, capable of a law society-caused solution. The residents of Canada have never needed lawyers more. If law societies would do their duty to make legal services adequately available by solving the problem of unaffordable legal services, there would not be enough lawyers to fill the demand for legal services. Law societies would be begging the law schools to increase their student numbers. Instead, the per capita number of lawyers in private practice has been steadily shrinking for decades, and the general practitioner is disappearing. Law society incompetence is to blame.
The cause of the problem is that the method of doing the work to produce legal services is very obsolete. It is a cottage industry method. All other producers of goods and services have moved to support-services methods, except for manufacturers who have monopolies as do law societies. That is because support-services enable the economies-of-scale and the flexibility of production in an ever-changing economy that creating and maintaining affordability requires. But law societies’ refusal to sponsor the innovations that would create the necessary support services, means that there are no economies-of-scale in the practice of law. And so the problem exists and persists. It would be very improper to use the power of licensing to avoid this duty.
To understand the problem and its solution better, read these articles, and a book by Professor Noel Semple:
(1) Ken Chasse, “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions (SSRN, pdf., June 7, 2018); online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627.
(2) Ken Chasse, “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner” (SSRN, October 5, 2017); online: https://ssrn.com/abstract=3020489.
(3) Noel Semple, Legal Services Regulation at the Crossroads, (Edward Elgar Publishing, Inc., 2015).
Noel,
I just note that the LSUC did experiment with a “shorter, cheaper” version of the LPP, back in 2006 to 2008 when it required licensing candidates to participate in a 5 week “professionalism” course. It subsequently abandoned that course, having determined that it was worthless (a rare assessment on the part of the LSUC with which I agreed. It was a complete waste of time and money). In fact, given that many candidates had to pay out of pocket for the cost of the course (as part of their licensing fees) and spend 5 weeks of unpaid time attending it, it was worse than worthless, it imposed a real cost on candidates.
More fundamentally, I’m hard-pressed to imagine a course that can teach “client relationships and professional workplace communication skills” better than working in a professional workplace and dealing with clients – i.e., actually observing and developing those skills.
With respect to the articling obligation, I’m curious if you could elaborate on the ” large indirect costs on both candidates and clients” that you see articling imposing, because they are not obvious.
The obvious cost to candidates is that – absent the LPP – it precludes those candidates who cannot find an articling position from practicing law. That is a cost, true, though one that only affects a subset of articling candidates. Moreover, that cost has to be put in context, only 70% of the LPP candidates in the first year of the program were actually called to the bar, and a significant percentage of the ones who reported not working or working out of law after being called, suggesting that for those candidates, factors other than articling were keeping them out of the practice of law.
On the other hand, the existence of the LPP (or a similar program) negates that cost – or at least ensures that candidates who accept articling positions do so because they believe it is the better option than the LPP. In assessing which licensing process is more onerous to candidates, surely candidate preference should be given some weight! That licensing candidates currently overwelmingly prefer to article than to go through the LPP (even, in cases, where their articling positions are unpaid) rather suggests that whatever costs are imposed on candidates through articling, they prefer it to the alternative.
In terms of costs to clients, it’s not obvious that articling imposes a cost to clients. For some clients, it allows articling students to provide low-end legal services less expensively then it would be if they were performed by a lawyer(although the question as to whether document review is a “legal service” – I believe the LSO might take the position that it is – it’s certainly preferable for clients to have such work performed by articling students than associates. Ditto small claims actions, simple document drafting, etc.). In that light, I’d be curious to hear what you understand those costs to be.
To Ken Chasse. Yikes!
You say that I want “the law society to use it powers of licensing to control the market supply of lawyers”. Not so. Canadian law societies license practically everybody the law schools send to them. The law societies are not the gate-keepers; the law schools are. I pointed out that it would be inhumane for the law societies to cut swathes of candidates off at the knees just as they approach the finish line. The weeding of candidates should occur at an early stage. For decades, that was first year Christmas exams. Not so today when virtually everyone passes. Virtually, the only gate now is entry into first year law school anywhere in the world.
There are two ways to deal with a market – unfettered access or controlled access. Waiting tables does not require controlled access and virtually anyone who fancies being a waiter can be a waiter (they work hard, don’t get me wrong). Professions, on the other hand, do require controlled access; otherwise, anyone who fancies being a doctor can be a doctor. Some say that that would actually be desirable. Such people therefore believe that the market will weed out the bad ones, say, after ten years of botched surgeries and missed diagnoses. Any who fancies being an engineer can be an engineer and the market will weed out the ones with proven track records of fallen bridges and collapsing buildings. That these tragedies occur anyway is bad enough, but why would we want an unfettered system that would hugely increase the incidence of tragedies?
In the professions, access is controlled in the public interest. In exchange for that, the professions and their regulatory bodies are required by statute to operate in the public interest. That obligation is taken seriously by the regulators and by most of their respective members.
Once you acknowledge the need to control access, the question becomes how best to calibrate that access. The starting point ought to be an analysis of the optimum number of professionals per capita to enhance (a) competent work at (b) fair fees. That analysis is never done. Instead, numbers in the legal profession, to take ours, is driven not by market analysis but by the financial best interests of the universities with law schools.
In law, the fees charged by small firm solicitors are demonstrably fair and very affordable – often among the lowest costs paid by the clients in the entire transaction. Wrt to real estate, the average fees are lower than the average cost of appliances, lower than the moving company, lower than the land transfer tax. In barrister work, the costs to the public are sky high. That is due in major part to a needlessly time-consuming litigation system set up by governments, short-sightedly in my view, to grind down and discourage litigants from getting before costly-to-governments judges. It is also due to too many lawyers chasing too few clients with legitimate claims. Those are different problems with different solutions.
Ken, you say, “The over-supply of lawyers and law students is a law society-caused problem, capable of a law society-caused solution.” If there is an over-supply as you say there is (and I agree), then all the law societies can do to cut numbers is to raise the passing standards of the Bar Admission exams and cut the students off after they have devoted three years and $90,000 to their dreams. That is neither fair nor humane nor a cost-effective way for society to engage its university students.
You say ” The residents of Canada have never needed lawyers more. If law societies would do their duty to make legal services adequately available by solving the problem of unaffordable legal services, there would not be enough lawyers to fill the demand for legal services.”
How can the law societies make legal services more affordable? Small firm solicitor work is already extremely affordable. Consider the $200 cost of a typical Will (where even a small estate of $50,000 is worth 250 times the cost of having the administration rendered easy and low-cost). Consider the $1,000 cost of a typical, well-done real estate deal where most properties cost at least 250 times that, and more likely 500 times that. The mortgage brokers charge more. The realtors charge far more.
It is barrister work that is not affordable when the average cost of taking a matter to trial is $40,000; i.e. the average annual income in Canada. Once again, we are back to the cost of resolving disputes. The law societies do not create or regulate the litigation system. The government does. Law societies could lobby governments to streamline the system, but governments throughout history have resisted doing so. Read clause 18 of Magna Carta. It states, in effect, “Bad King John, please, please, please, please send more judges on assizes so we can get our disputes resolved quickly”. John did not want to employ more judges than the minimum necessary to prevent mobs of angry litigants with torches storming his castle because he did not want to incur the expense of more judges than that minimum. Nothing has changed in 800 years.
You say, “Law societies would be begging the law schools to increase their student numbers. Instead, the per capita number of lawyers in private practice has been steadily shrinking for decades, and the general practitioner is disappearing. Law society incompetence is to blame.”
Really? If lawyers are leaving private practice, is it really the law societies’s fault? Whose fault is it? Anybody’s? I have seen squadrons of female lawyers eschew private practice and join the government. Given the high remunerative and other benefits of working for the government, this just proves, as if more proof were needed, that women are smarter than men. In any case, I do not see reductions in lawyers in private practice. In my community alone, we have gone from two small firms to ten, with firms from hundreds of miles away using the internet to further fragment our market.
Is it (a) law society incompetence or (b) market and other forces uncontrollable by any professional regulator that is to blame for the life choices that adult men and women make?
Ken, with great respect, I submit that you have badly misread my earlier essay.
Yes, I do blame the law schools for the gigantic increase in the number of lawyers per capita for the very simple reason that they are to blame. They have increased the number of law school positions by about 60% during a time when the population of Ontario has grown by a fraction of that. Note that the rise in self-represented litigants has risen in lock-step with that. They are related phenomena. Double the number of barristers per capita and the number of clients per barrister is cut in half, forcing the barristers to litigate matters that would not have been litigated in the past,to drag out other matters, and to charge far more to each client than in the past to make a living that leads most barristers to a delayed and an insecure retirement.
Don’t agree? Well then, why not raise law school positions by yet another 60%, yet another 5 to 7 times population growth? Or even 360%? 500%? Will that solve the problem or exacerbate it? The roiling boiling mess in the US shows that it would exacerbate it. Shall we move to a society where each non-lawyer citizen has his or her own personal lawyer to feed and water for the lawyer’s entire career and retirement? If the rate of law school growth continues at its current pace, one lawyer for each citizen is exactly where we will find ourselves. Of course, the current rate of growth is not sustainable.
Ken, with respect, you are wrong to say the law society is run as though it is still the early 1800s. Could it be better? Of course. Everything can be better. In my observation, law societies are always trying to get better. Our own law society is often in the vanguard among Canadian law societies, and we have an excellent staff. History and experience show that change for the sake of change is risky and often counter-productive. Careful, well-reasoned change is what is called for. Most of the time people and entities get it right, sometimes they don’t. That is the epitaph of every human and every organization created and run by humans that has ever existed and will ever exist.
Yes, I think the law schools should do a far better job of preparing students for private practice compared to the very poor job they do now. (No wonder when most of the full-time professors never practiced or did so for only a short time a long time ago.)
The law societies require articling and a lot of post-call study because of the inadequate job the law schools do in this area. This is not an efficient use of students’ time. Law schools could teach theory in first year, and leave years two and three to practical training, mostly taught by local practitioners and, where possible, with placements with firms and clinics. Nothing but nothing prepares a student for private practice better than several years at the elbow of a mentor, a process that is begun through articling.
Howsoever we move forward to improving the situation, it will not improve without radical change at the stage of first entry, namely, the law schools. Since those interests are so vested (and lucrative for the comprehensive universities), I am not very optimistic. It is more likely that a major crisis will have to arise before effective change occurs. Who knows? Maybe Premier Ford will realize how having far too many lawyers per capita is horrifically costly to the public purse, and will pare down the law schools in order to save billions of dollars of public money. He could start by denying Ryerson a law school. The very last thing the public of highly indebted Ontario need is another law school costing the government (taxpayers) great gobs of money to subsidize.
Cheers.