The Cost of Becoming a Lawyer

The Law Students Society of Ontario (the “LSSO”) recently surveyed Ontario law students to better understand the debt load experienced by them and its effect on them. The LSSO Report provides important insights into the effects of increased law school tuition costs.

The LSSO Report has been well received and rightly so. However, the point of this column is not just to laud the report but to engage with it and its observations. In order to seriously address the observations in the LSSO Report, it is necessary to consider the report and to look at the cost of becoming a lawyer in context of the actors involved, their responsibilities and their interests.

The LSSO Report

The LSSO Report reflects survey responses from 697 law students from the seven Ontario law schools. Given that this is a voluntary survey, there will be selection bias in the results as a result of which some caution is merited. One can expect that those who are more concerned about law school costs would be more likely to respond.

The LSSO Report observes that “The 697 responses we received were unevenly split across the seven participating law schools, with the most responses coming from the most expensive law schools”. The following chart illustrates this point:

The response rates for Ottawa and Windsor (which represent 40% of Ontario law students) are very low at approximately 3% and 2% respectively while the response rates for Osgoode and U of T are particularly high at approximately 28% and 29% respectively[2].

Given this uneven response rate and the problem of selection bias, it should be understood that the LSSO Report predominately reports responses from Osgoode and U of T which are the law schools where students face higher costs. While it is not possible to assess the effect of selection bias within law schools, it is likely that students within each law school who were more concerned about higher costs were more likely to participate in the survey. While, the LSSO Report provides useful information, it cannot be seen as being representative. The information reported should be understood as generally reflecting the experience of students experiencing and being concerned about higher costs.

Significant highlights from the LSSO Report include the following:

This year, tuition for one year of law school at the University of Toronto was more than $36,000, with other schools closely following. Many law schools continue to raise tuition by the maximum allowable rate each year, inconsistent with inflation. …

Between 15-20% of law students expect to graduate law school with $0 owing to governments or banks – suggesting that a sizable portion of students fund their education by other means or with the support of family. In 2014, around 30% anticipated graduating debt-free, suggesting that as tuition rates increase, so too do the percentage of students graduating with debt.

At graduation, over two-thirds of participants expected to have more than $50,000 in debt owing to financial institutions (up from one third in 2014), and almost two-thirds expected to have over $20,000 in outstanding government student loans (up from one half in 2014). 19.32% of students expect that it will take them more than ten years to pay back their debts. …

82.53% of those surveyed indicated that at least one of their parents has a post-secondary credential (58.86% indicated that both had a credential). 67.86% of participants have a parent with at least an undergraduate degree, and 40.89% have a parent with at least a masters degree, a professional degree, or a doctorate degree. These numbers are similar to those in 2014, suggesting that first-generation students are still experiencing barriers to law school.

Students whose parents have completed more advanced credentials tended to have lower average debt levels than their peers. First generation students carry up to $32,066 more debt than their peers by the third year of the law school program.

Students indicate that mental health, stress, and academic success are all impacted by their debt burden and financial constraints, and that their career objectives have been altered by the cost of legal education. In open comments, many students expressed views that the profession was elitist or hypocritical on issues of access to justice or legal education.

These are important observations.

The cost of becoming a lawyer

The LSSO Report focuses on the cost of law school and makes passing reference to the cost of the licensing stage between law school graduation and the call to the bar.

Law school costs

The cost of law school in Ontario is driven principally by the cost of living in the community in which the law school is located (assuming that a student does not live at home) and the cost of tuition. Statistics Canada publishes an after tax low income cut-off by community size (LICO) for 2016 which can be used as an estimate of the cost of living as a student in different communities in Ontario[3].

Tuition varies significantly by law school[4]. The following chart shows law school tuition in 2014[5] and in 2018/19[6]:

As can be seen, law school tuition has increased since 2014 across the board.

As a rough indication of the cost of law school, the following chart shows the cost of living for three years based on the after-tax LICO and three years of tuition at current rates:

This chart shows a range of cost of about $110,000 to $175,000, an average cost of about $130,000 and a median cost of nearly $125,000. The range of law school costs is broad being about $65,000 from a low of about $110,000 to a high of over $175,000.

What is not shown in this chart is the effect of financial assistance both during law school and post-graduation. For example, I understand that financial aid expenditures at Osgoode now exceed $5 million annually which would amount to approximately $6,000 per student per annum on average for a total of nearly $20,000[8].

There are significant cost differences between the Ontario law schools. The estimated costs at Windsor, Queens, Ottawa and Western are similar ranging from about $115,000 to about $125,000 while the estimated cost at Osgoode is about $150,000 and the estimate cost of U of T is about $175,000.

With the costs of law school at Osgoode and U of T and the over representation of these schools in the LSSO Report, the actual and expected debt loads reported by the LSSO Report are not particularly surprising.

Licensing costs

Based on the LSO website, the cost of licensing fees generally totals $4,710[9]. This is 6.8% of the total of median tuition plus licensing fees[10].

For those who do not have paid articles, the cost of the licensing year[11] amounts to approximately $20,000 for a total median cost to become a lawyer of approximately $145,000. For those who have paid articles, the costs of the licensing year are likely paid for and so total median cost to become a lawyer would be approximately $125,000.

Obviously, the costs for those who attend U of T and Osgoode will be significantly above these amounts; by nearly $55,000 for U of T and about $25,000 for Osgoode.

Reported Debt Load from the LSSO Report

The LSSO Report includes the following information about the current expected debt levels on graduation. The expected debt levels vary significantly but appear to average approximately $63,000 with two-thirds of respondents expecting debt levels of between $20,000 and $80,000 on graduation – and with nearly 30% expecting debt levels of over $70,000 on graduation.

A study released in 2004 (as described below) reported that “One-fifth of all current law students expected to graduate from law school with no debt, but 27 percent expected to have debt of $40,000 to $70,000 and 13 percent expected to graduate with over $70,000 of debt” and that “Current students projected more debt at graduation than the actual debt reported by graduates”.

Recognizing methodological issues with LSSO Report, it is notable that the number of students expecting to graduate with no debt is the same as in the 2004 study. On the other hand, twenty percent of respondents in the LSSO Report expect to graduate with over $90,000 of debt compared with the 13% who expected to graduate with over $70,000 of debt ($90,837 in 2018 dollars) in the 2004 study.

What has changed and why

Some 15 years ago, the Deans of Osgoode, Ottawa, Queens, Western and Windsor commissioned a Study of Accessibility to Ontario Law Schools (the “2004 Study”) . U of T did not participate having recently completed its own internal study. The overall purpose of the 2004 Study was said to be:

1) to describe the demographic characteristics of law school students in the five Ontario law schools;

(2) to determine whether the demographic characteristics of law students have changed since tuition deregulation;

(3) to determine whether there have been changes in the types and amounts of student financial support since tuition deregulation; and

(4) to examine the amount of debt incurred by students in law school and the impact of debt on their lives.

The 2004 Study surveyed current law students obtaining responses from 2,260 students and surveyed recent law graduates obtaining responses from 966 graduates. As the 2004 Study reported “[t]he overall survey return rates were 76 percent of students and 30 percent of graduates”.

The 2004 Study reported tuition fees at the then six Ontario law schools over the period 1997/8 to 2003/4 observing that “[s]ince the deregulation of tuition for professional programs at the end of 1997, tuition fees at four of the five Ontario law schools have more than doubled, and tuition at the other has more than tripled”.

The following chart applies the All Items Consumer Price Index for Canada to the first year annual tuition reported in the 2004 Study for 1997/9 and 2003/4, to the 2014 tuition as reported by Macleans Magazine and the current tuition from the current law school websites:

There has been a very significant increase in law school tuition over the last twenty years with increases ranging from 4.4 times to 6.8 times in constant dollars. Interestingly, the increases between 2003/4 and 2018/9 are in a narrower range from 1.8 to 2.0 times. As I understand it, this reflects reregulation of tuition but with annual increases above inflation being permitted.

At this point, it is worth noting (as did the LSSO Report) the recent 10% tuition fee reduction imposed by the Ontario provincial government together with reduction in student assistance. This is a relatively small decrease in law school tuitions in the context of recent and long term real increases.

The 2004 Study also reported that “Before being called to the Bar, law students who have completed their Bachelor of Laws program must also complete the Bar Admission Course (BAC); the BAC includes an articling term with an experienced legal professional and, in 2003-04, cost $5,000 in Ontario.” This $5,000 BAC cost is just short of $6,500 in current dollars. As noted above, the current licensing cost is $4,710. These licensing costs decreased after 2004 with the elimination of the bar admission course and then increased with the introduction of the LPP/PPD.

The significant increase in law school tuition over the last twenty years begs the question what does tuition fund and what other funding is available to law schools.

To start with other available funding, there are several sources of funding. The first is government funding. For some time, government funding was on a per student basis. This incented increased class sizes with the result that the basic operating grant to universities became held to student 2010-11 levels[12]. This works out to a government contribution of something between $5,000 and $10,000 per student, which I understand is below average nationally.

There are two other sources of funding of which I am aware. The first is tuition fees from foreign students which are higher than for domestic students. The second is donations. I have not attempted to track down information regarding these sources which presumably vary by law school.

On the other side, the question is where does tuition go. There are three possible answers, namely to fund the law school (with faculty compensation being a large part of that), to cross-subsidize some students by bursaries and to fund other aspects of the university. Again, I haven’t attempted to track down information regarding these funding possibilities which also presumably vary by law school.

What is publically available and is likely the largest proportion of the cost for law schools is faculty compensation. This information is available as a result of The Public Sector Salary Disclosure Act, 1996 which requires organizations that receive public funding from the Province of Ontario to make public the names, positions, salaries and total taxable benefits of employees paid $100,000 or more (the “Sunshine List”).

But before laying out information regarding the cost of full time faculty, it is important to note that some universities use part-time adjunct faculty significantly. Looking only at full-time faculty is not the full story – but it is part of the story and is the part that is visible.

As well, there has no doubt been increased spending on increased level of service to students such as clinical and intensive programs. Many law schools now have full time student success counsellors, staff assigned to career offices, coordinators of Indigenous initiatives, significantly enhanced IT services, international exchange coordinators, and the like. As well, law schools have other mandates and interests in other areas such as new centres, institutes, partnerships, community outreach. Whether increased student tuition is or ought to be funding these other mandates and interests is an interesting question

As for full time faculty, the Sunshine List unfortunately does not identify which professors are members of the faculty of law for universities other than U of T. However, it is possible to see material differences by law school by taking the current full time faculty lists from the law school websites and extracting the compensation for those professors from the Sunshine List[13].

In any event, the following shows the average and median total compensation as disclosed by the 2017 Sunshine List for current full time faculty[14].

Consistent with the review of law school tuition above, it is no surprise that compensation for professors at Ottawa, Western, Queens and Windsor is reasonably similar (although there are differences) and that compensation is higher at Osgoode and U of T. It seems clear that higher faculty compensation and higher tuition are related. It is also notable and unsurprising that faculty compensation, other than at Osgoode and U of T, is typically in the $120,000 to $160,000 range given the labour market for lawyers generally.

There are three important points that may be made now. The first is that teaching law students is only one of the goals of a law school. The other principal goal (and perhaps sometimes the principal goal) is scholarly research and writing which is important to the relative stature of a law school, the nature of the faculty and the students that are attracted to the school. While there are no doubt advantage to being taught at a law school where scholarly work is at a high level, it is notable that tuition has materially increased over time, and particularly in some law schools, to fund faculty dedicated only in part to teaching.

The second important point is that, once increased law faculty salaries and benefits are “locked in”, one cannot expect law schools themselves to materially reduce those costs, taking into account tenure, unionization and how Canadian law schools are run. After the fact change is difficult.

The third important point is that Ontario law schools have been able to charge increased tuition because there is significant demand for admission to Ontario law schools. Over the ten years from 2008 to 2017, there have been 3.1 applicants for every first year Ontario law school spot. While this ratio has dropped to 2.8 applicants per spot in the four years from 2014 to 2017, the Ontario law schools face no lack of demand despite increased tuition costs. The significant number of Canadians going to law school in England and in Australia proves this point.

The principles in play

The LSSO Report rightly, in my view, focuses on the impact of high costs and debt loads on those who are less well-off and especially Indigenous people. Diversity of the legal profession is in issue as is social mobility in society.

While the LSSO Report does not make the point, it seems to me that the benefit corresponding with the increased cost has been enjoyed by the law schools, their faculty and, to an unknown (by me) extent, by the universities. To the extent that law schools have become better for law students as a result (including by continuing to attract able faculty), this is fair enough. But given the significant increases over the last twenty years, it is unclear the extent to which students have been beneficiaries of increased tuition revenues. And given increases in financial assistance as well as tuition, it is also unclear which students have borne the brunt of increased tuition given that the most well-to-do can afford increased tuition and the least well-to-do are more likely to have the benefit of financial assistance.

The LSSO Report also focuses on the impact of high debt levels on the choices made by new lawyers. The report fairly observes that individuals with high debt levels without or despite financial assistance are incented/forced to choose more remunerative work over less remunerative but socially desirable work. From the perspective of the new lawyer, this is an apt observation for those who can choose more remunerative work.

However, the LSSO Report goes on to claim that there is a broader impact on access to justice. I have some doubt about this claim. For this claim to be true, there would have to be more young lawyers taking up higher paid jobs and fewer new lawyers taking up lower paid jobs. But there is no reason to think that the number of higher paid jobs has increased. Also, the current reality (and this is of concern to the LSSO from their perspective) is that the annual number of new lawyers has significantly increased given increased law school sizes and the significant increase of NCA candidates. While individual choices may well be affected by increased debt levels and there may well be increased competition for higher paid jobs, there is no basis that I can see to think that there has been an overall decrease in services offered to ordinary people or to vulnerable people as a result of increased debt levels. This is not to say that we should not be concerned about the impact of high debt loads on individuals and their available choices.

Regulating tuition

Looked at as a whole, the cost of becoming a lawyer typically amount to approximately $125,000 to $145,000. There are four principal drivers to this cost namely the annual cost of living, the annual cost of tuition, the number of years in law school and experiential training and whether a paid articling position is obtained.

Law school tuition is a large part of this cost – and the increase in law school tuition is clearly the largest part of increased costs.

Regulation of university tuition is the responsibility of the provincial government. That the provincial government is the regulator of law school tuition is evident from the deregulation in the 1990s and the 10% tuition decrease just imposed. As well as regulating tuition, the provincial government makes decisions about the extent of public investment in education. Over time, the proportion of law school costs funded by the province has fallen significantly as the proportion funded by tuition has increased significantly. But I am not aware how increasing law school costs plays into this and the extent to which decreasing funding and increasing costs have respectively resulted in tuition increases.

Within regulatory limits, universities/law schools set law school tuition. It would be naive to expect law schools to simply roll back tuition increases that have funded increased faculty salaries and benefits. This would require tenured and unionized faculty to agree to roll-backs.

Some argue that the Law Society ought to step in and regulate law school tuition. However, while the Law Society has authority over admission to the practice of law, it is not the regulator of law schools. That something should be done does not mean that the Law Society has the authority to do it.

I accept that there is an argument to the contrary[15]. In the Trinity Western[16] cases, the majority of Supreme Court of Canada accepted at paras. 22 and 23 of TWU v. LSUC that the Law Society was entitled to decline to accredit TWU because “eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole” and the Law Society “was also entitled to interpret the public interest as being furthered by promoting a diverse bar.”

The argument goes that excessive tuition is an inequitable barrier that diminishes competence and diversity in the bar. There is truth to this. However, there is a difference between high tuition and discrimination based on the basis of personal characteristics. There is a difference between refusing to accredit one new law school based on discriminatory admission practices and disaccrediting some or all of the existing Ontario law schools on the basis that excessive tuition is being charged.

Final observations

The LSSO Report provides valuable insight despite methodological issues. The 2004 Study commissioned by the five Law Deans was a more robust and broader study. Without meaning to be critical of the LSSO Report, the current Law Deans and the Law Society, in collaboration with the Law Foundation, may wish to consider repeating the 2004 Study given the subsequent real increases in law school tuition and the implications of those increases. There would be value in studying the impact of debt levels on the career choices and mental health of recent calls and the relationship between economic barriers and equity, diversity & inclusion. Better insight into the components of law school costs, including the cost of clinical and intensive programs, student services and the cost of adjunct faculty, could be of value as could better insight into sources of funding.

There are significant tuition differences between the law schools. This is likely because different law schools have made different strategic choices. While accessibility should remain an issue for all law schools, there is value in having different types of law schools so long as students understand what they are getting into. Encouraging awareness of those differences, including cost differences, on admission may be worthwhile.

The time to become a lawyer in Ontario is lengthy and that costs increase with time. There are three components; pre-law school studies, law school and licensing. While students can theoretically be admitted to law school with two years of undergraduate, this isn’t the reality. The LSSO Report says that 98.46% of respondents had at least an undergraduate degree with nearly one-fifth having a Masters or a PhD. Competition for law school admission has increased the time to become a law student.

Once admitted to law school, students have nearly four years to become a lawyer, three years in law school and nearly one year in the licensing phase. In Ontario in 2019, becoming a lawyer generally requires eight years after high school and commonly requires ten or more years – which is a long time and is longer than in many other jurisdictions.

These observations raise possibilities. Could/should there be an accredited two year law degree as well as a three year degree? Could/should the law schools and the law societies work together to create a shorter and integrated path to licensing? Should high quality flex-time legal education be more available so that law students can better fund their legal education? Is there room for different approaches by different law schools? These are interesting and difficult questions that may merit serious thought and would require better collaboration between the law schools and the Law Society.

There are no doubt other approaches that ought to be considered.

What do you think?

_________________________

[1] To estimate the number of students who could have responded, I have taken the last three years of law school admissions available from the Ontario Universities’ Application Centre and have assumed an annual 5% attrition rate for second and third year.

[2] Using 2017 admission numbers times three years as an indication of the size of the sample set.

[3] The after-tax LICO for one person in a community of population of 500,000 or over which is $20,675 while the after-tax LICO for a community of 100,000 to 500,000 is $17,485. The after-tax LICO for a community of 30,000 to 100,000 is $17,267.

[4] The LSSO Report states that “This year, tuition for one year of law school at the University of Toronto was more than $36,000, with other schools closely following.” I do not think that it is correct to say that tuition at the other law schools closely follows the tuition at U of T.

[5] As reported in McLean’s Magazine

[6] As reported in current law school websites.

[7] As Thunder Bay is a more remote community, it may be that using LICO somewhat understates the cost of living.

[8] Of course, financial assistance would not be distributed equally to all students.

[9] Application Fee of $160, Barristers Examination of $750, Solicitors Examination of $750, Experiential Training of $2,800, Call to the Bar Fee of $250

[10] In her introduction to the LSSO Report, Heather Donkers observes that “… the Law Society of Ontario (LSO) has instituted changes to the licensing process that have, over the last decade, more than doubled its cost for new graduates, prolonging the climb out of debt”. While true, this observation does not note that the increase is a small proportion of the total cost of becoming a lawyer and that the current costs are comparable to the costs of the 1990s.

[11] Living costs and licensing costs.

[12] See 2015 Overview of the Current University Funding Model

[13] There are some new professors who obviously aren’t listed. I doubt that this materially affects the results except to the extent that new professors earn less then more senior professors. But unless there are material variations by law school in terms of new hirers, this should not affect the relative results. That said, I exclude Lakehead where there have been significant new hires.

[14] No insight is provided for those with annual salaries of less than $100,000. However, it does not appear that there are many professors who earn less than $100,000 when adjunct professors are excluded.

[15] H/T Douglas Judson

[16] Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33