The articling debate in Ontario is back on! A few weeks ago, the Law Society of Upper Canada released a Consultation Report on articling. You can find it here. While I don’t agree with all of the proposed options, I think it’s a very good starting point for discussions.
This report should be called “The Future of the Legal Profession” because that’s really what we’re talking about. How we train the future generation of lawyers, who is let in, and where and how these new lawyers practice will have a huge impact on the legal profession, and will either exacerbate or help address key issues such as access to justice and diversity of the profession.
This debate isn’t limited to Canada. In the US, there is a vigorous debate going on about the role of law schools in preparing students for the practice of law. The New York Times has a great section that looks at the different perspectives on this critical debate. Check it out. I’d also suggest reading Past OBA President Lee Akazawi’s recent blog posts that pick up on this theme and make a compelling case for introducing a practical legal training course at law school as an alternative to articles. He also has a cool poll where you can vote for the option from the Consultation Report that you like best.
It’s critical that law students weigh in – otherwise there is no way to ensure that their perspective is adequately represented. Also, it’s important that new graduates who have been through the articling system or who have been unable to find articles make their voices heard.
My thoughts on articling and the Consultation Report are set out below. This piece was originally written for The Law Times – you can find that article here.
LET’S GET THE DEBATE STARTED!
Articling: No longer the “sacred cow”
In 2008, the Law Society of Upper Canada looked at the future of articling. The problem was clear – there was a significant shortage of articling positions and a disproportionate number of the candidates unable to find articles were from equity-seeking groups.
A taskforce was established, consultations were held, submissions were accepted and at the end of it all, a decision was made to do, well, not much. The majority of respondents overwhelmingly rejected the idea of abolishing articles and no other alternatives were seriously considered. There were some small initiatives to try to increase the number of articling positions and some exemptions from articling for internationally trained lawyers. However, there was clearly a hope that the shortage of articling positions would decline and that the legal profession would step up to plate. In a prophetic statement, the taskforce wrote in its final report: “(W)hile the enthusiasm with which the profession supported articling in this consultation process is heartening, it will be of limited value if not accompanied by a commitment among those who have not traditionally hired students to now do so.”
Ultimately, the enthusiasm was not matched by action. Three years later, the problem is significantly worse. The rate of unplaced articling candidates has jumped from 5.8% in 2008 to 12.1% in 2011. This translates to 214 out 1767 candidates in the 2010/11 licensing group who are unable to find articles. And this number does not include unplaced candidates from previous years who are still looking for articles. Once again, equity-seeking groups are disproportionately left out. With new law schools starting up, increased enrollment at existing law schools, and more foreign-trained law graduates and lawyers looking for articles, the problem is clearly structural. So the Law Society has yet again established a taskforce that recently issued a Consultation Report. However, this time, the taskforce is no longer willing to treat articling as the ‘“sacred cow” of the licensing process’.
It is therefore surprising that the first two of the five options proposed in the Consultation Report would keep articles. Under the first option nothing would change except students entering law school we be warned that articles are not guaranteed. The second option would add some form of quality assurance to the articling experience. Both of these options should be non-starters.
First, they maintain articling as an unreasonable barrier to entry to the profession. While the report suggests that these options let “the market decide”, the market is not the real market (consumers) but rather an artificial market governed by lawyers (potential competitors). And the barrier to entry is not based on an objective standard but rather based on whether a lawyer or firm deems someone is a “good fit” to article with them. The Law Society has clarified ‘that the problem of unplaced candidates cannot be dismissed as “the market weeding out weak candidates”‘. This makes articling very vulnerable to attack from a regulatory perspective, whether or not quality-assurance is introduced.
Second, neither of these two options is fair. For a profession committed to protecting the public interest and advancing the cause of justice, it is a big problem that a disproportionate number of the candidates who cannot obtain articling positions are Aboriginal, from racialized communities, francophone and mature students.
Finally, because articling is dominated by large firms in big centres, with small firms and sole practices no longer playing a significant part in the articling system, it is exacerbating the access to justice crisis. Articling is not training lawyers who will act for average Canadians.
It is surprising that abolishing articles and simply having licensing exams, as is the practice in the United States, is not included as option. Having a properly designed standardized exam that assesses competence to practice law would not be an unreasonable barrier to entry nor would it be unfair. The Taskforce’s rationale for excluding this option is set out in one short paragraph that notes that this option would not be in keeping with the Law Society’s mandate and that transitional training is “valuable and necessary”. However, the Report provides no evidence that the US system is not adequately preparing new lawyers, merely noting that “U.S. studies on the reform of legal education often comment on articling as an illustration of valid transitional experiential training.” While this wouldn’t be my preferred option, either hard evidence should have been provided to explain why this option wouldn’t work in the Canadian context or this option should have been included for discussion.
The good news is that the taskforce sets out three creative options that actually tackle the problem. The third option would replace articling with a “post-licensing transition requirement” where lawyers working in a small or sole firm setting would be required to do transitional training on the basis that these are higher-risk practice structures. The fourth option would provide the choice of either articling or a practical legal training course, while the final option would simply involve a practical course.
Of these options, the fourth is the most compelling. Not only does it ensure that all qualified candidates have a path to get licensed, it may also help address access to justice problems by providing specific training to candidates who wish to work in sole and small practice environments.
Under this option, articling would continue after law school although with clear standards that were enforced. By contrast, the practical legal training course would be introduced either during the third year of law school or after law school by a third party provider. The emphasis of the course would be on skills and ethics, as well as the business of practicing law. Combined with a mentoring component, this stream is likely better able to prepare candidates for certain kinds of practices (such as sole and small firm practice or public interest law) than articling does. The report rightly points out that for a post-law school course, cost is a consideration as students would be required to pay for the course. Although, additional debt is likely preferable than being unable to find articles and never qualifying to practice. Interestingly, the report looks at the experience of Victoria, Australia which has a dual system for licensing after law school. It found that not only was there no stigma associated with students who took the practical course rather than article, many law firms opted to put their new hires through the program rather than train them themselves. This option could one day replace articling altogether.
The question now is how the law profession will respond to the consultations on articling this time. Will most lawyers continue to cling to articling and refuse to consider other options? If so, not only will an unfair system continue, there’s a good chance we will lose our ability to regulate ourselves. On the other hand, if the profession decides to consider innovative alternatives, we will end up with a more inclusive profession that is better trained and better able to serve the public. There’s a lot a stake. Make sure you make your views known. Make your comments to the Law Society by March 15th.
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Madeleine Redfern, the indomitable mayor of Iqaluit, Chair of the Nunavut Legal Services Board and a member of CLA’s Advisory Board, spoke passionately about law and justice issues in Nunavut and the importance of CLA’s work there to support the Legal Services Board (which provides legal aid) and the Law Society of Nunavut.
